Grissom v. Heavy Duty Haulers, Inc. , 264 N.C. 450 ( 1965 )

Higgins, J.

The plaintiff held authority from the North Carolina Utilities Commission to carry freight by truck wholly within the State of North Carolina. The defendant had authority from the Interstate Commerce Commission to carry freight in interstate commerce. The plaintiff was not authorized to receive or carry interstate shipments. The defendant was without authority to receive or carry intrastate shipments.

The parties, however, entered into an undated written arrangement entitled, “30 Day or more Teip Lease and Inter-change of Vehicles by Motor Carriers,” by which Heavy Duty Haulers, Inc., agreed to lease to Grissom a 1953 Mack heavy duty truck. Attached to and. as a part of the writing was a blank receipt to be signed by the lessee' giving the day and hour the truck was delivered. It is obvious the truck and driver would be available to the plaintiff when needed, in which event the day and hour of delivery was to be entered on the receipt and signed by the plaintiff. The plaintiff denied he received or operated the truck in hauling the Dickerson shipment. The unsigned receipt supports his contention.

In this case Dickerson, Inc., the shipper, made arrangements with the defendant to haul its heavy crane and other equipment from Benson to Madison. After making all the arrangements with the shipper, the defendant called the plaintiff to assist in the operation. When the plaintiff, in obedience to the call, arrived in Benson with his light truck, the defendant had already loaded on its Mack truck the heavy duty crane which it dispatched in charge of its own driver to Madison. The plaintiff, however, at the direction of the defendant, loaded his truck and transported a part of the Dickerson shipment from Benson to Madison.

During the progress of the trial the parties stipulated that Dickerson, Inc., the shipper, paid the defendant, Heavy Duty Haulers, Inc., for the entire shipment. The defendant strenuously contends that the plaintiff’s evidence that it did not lease the equipment is an attempt to vary the instrument by parol evidence. However, such is by no means the case for the simple reason that the writing itself required that the date and hour of delivery of the truck to the lessee be entered as a part of the writing to be signed by the plaintiff as evidence of delivery. The controversy, therefore, presented a clear-cut question whether the plaintiff obtained possession or control of the Mack truck. The jury’s finding in the negative is amply supported by the evidence.’ Hence the plaintiff in no sense can be held responsible for overloading the truck. By way of explaining the foundation for the controversy, it may be noted that the plaintiff for his own truck had a special permit to overload. The defendant did not have such permit. The defendant has failed to establish its counterclaim.

The plaintiff offered evidence of the amount of interstate business he had solicited and obtained for the defendant and that he was due as commissions thereon the sum of $155.25. This item is not now challenged by the defendant. In addition, the plaintiff offered evidence that he is due $302.35 for that part of the Dickerson, Inc., shipment which he carried from Benson to Madison on his own truck. The parties stipulated that the defendant collected in full from Dickerson. Hence the plaintiff is entitled to recover on this item $302.35 as found by the jury. These two items make up the total award of the jury and sustain the judgment.

No error.