#### ROBERT GIBBS v. WILLIAM RUSS, JR., and NORTH CAROLINA PULP COMPANY OF PLYMOUTH, NORTH CAROLINA.

(Filed 22 September, 1943.)

1. Trial § 22a: Appeal and Error §§ 39a, 39g—

Tbe burden is on tbe appellant, not only to show error, but prejudicial error.

2. Trial § 22b: Appeal and Error § 39d—

A refusal to admit competent evidence, wbicb, wben considered with all tbe other evidence, fails to make out a case for tbe Jury, is harmless error.

3. Trial § 22a: Appeal and Error § 40e—

Where tbe only evidence to sustain tbe cause of action alleged by plaintiff is incompetent, but erroneously admitted, and an appeal is taken by defendant from tbe refusal of Judgment of nonsuit thereon, this Court will not overrule tbe trial court and grant tbe nonsuit.

4. Negligence § 19a: Automobiles § 24c: Partnership § 8—

Tbe mere ownership of an interest in an automobile does not make the owner of such interest liable for injuries caused by tbe automobile; nor is a partnership liable for an injury done by such vehicle owned by it if tbe driver, even though a partner, be not acting within tbe scope of tbe business and authority of tbe partnership.

5. Automobiles §§ 18g, 24c: Partnership § 2—

In an action to recover damages for personal injuries to plaintiff caused by the alleged negligent operation, by one of defendants, of a truck jointly owned by both defendants, where all of plaintiff’s evidence, admitted and rejected, taken in its most favorable light, tends to show that tbe other defendant bad no interest in, and received no benefit from tbe operation of tbe truck at tbe time in question, such evidence is insufficient to establish tbe relation between tbe defendants of principal and agent or that of partnership and judgment of nonsuit, as to tbe defendant not operating tbe truck at tbe time of tbe accident, sustained.

Ajppeal by plaintiff from *Johnson, Jr., Special Judge,*at May Term, 1943, of Beaueort.

Civil action to recover for personal injury.

Plaintiff in complaint filed alleges: Tbat on 15 June, 1942, defendants owned and operated a Chevrolet auto truck which defendant Russ was driving with the express consent of the corporate defendant, “from Pantego on the strong turn of the road into the Pungo road”; that “on approaching the curve the driver was going at a high, wanton, and reckless rate of speed and negligently failed to slow down his speed and to take the truck under control and attempted to go around the curve at a recklessly high speed and without reasonable and prudent care” by *350reason of which as proximate cause the truck, on which plaintiff was riding, turned over and was thrown on plaintiff’s leg, breaking same “to the extent and a condition that required amputation” thereby proximately causing damage to plaintiff.

Defendants filed separate answers in which material allegations of the complaint were denied. And in its answer thereto the corporate defendant specifically averred that at the time of the alleged injury to plaintiff it had no right, title or interest in, or control of the Chevrolet truck in question, and that in the operation of it defendant Euss was not performing any act of agency for or in behalf of it.

Upon the trial plaintiff testified that he was riding on the back of the truck which defendant Euss was driving on the highway from Pantego to the Pungo road; that when just out of the corporate limits of Pantego Euss drove the truck around a curve between forty and fifty miles per hour; and that in so doing the truck was turned on plaintiff, and broke his leg so that it was amputated above the knee.

Plaintiff then without objection offered in evidence the adverse examination of defendant Euss taken before the clerk under C. S., 900-901, in pertinent part as follows: “My name is "William Euss, Jr. . . . the truck was mine and my daddy’s. I don’t exactly know whether I owned the truck at that time. The truck is now owned by my dad and me. I had possession of the truck at the time. My dad and I borrowed $900.00 from the North Carolina Pulp Company to buy this truck. The deed or certificate of title was made in my name. The Pulp Company held the title until I paid for the truck ... by paying $1.00 for each unit of the wood I hauled to the North Carolina Pulp Company. I had not paid for the truck at the time of the accident. I was not permitted to use the truck without permission of the Pulp Company. I was to haul only pulpwood, nothing without their permission. At the time of the accident I was hauling potatoes and had permission from the Pulp Company to do so. We were short of men and I wanted to haul a few loads of potatoes for Ben Aycock. I picked up the three men who were on the truck; had hauled one load and started after another when the truck turned over. Permission was granted to do this by my dad asking Mr. Earl if it would be all right. I did not hear my father make this request. He told me he had done so.” The witness Earl called by plaintiff testified that he was manager of the wood and land department of the North Carolina Pulp Company.

Then for the express purpose of showing that defendants Euss and the Pulp Company jointly owned the truck plaintiff offered to introduce in evidence (1) the remainder of the examination of Euss in which he had testified that the Pulp Company without his knowledge took out a policy of insurance on the truck, for his protection, which he later *351approved, and on which he paid the premium, and (2) the terms of the policy in which, among others, these items appear: “(1) Name of insured — North Carolina Pulp Company and Will Russ . . . insured, (x) individual . . . (x) corporation . . . Business or occupation of the named insured: Paper Mfrs. Employer.” Objection thereto was sustained ánd plaintiff excepted. In deference to the ruling of the court in sustaining the objection as just stated “and upon intimation of the court that plaintiff could not recover,” as stated in the judgment, plaintiff submitted to a nonsuit as to the defendant Pulp Company and appealed to the Supreme Court and assigns error.'

Mistrial and continuance were ordered as to the case against defendant Russ.

*II. S. Ward for plaintiff, appellant.*

*Norman & Rodman for defendant Pulp Company, appellee.*

WiNBORNE, J.

The question involved on this appeal is worded in the brief of the counsel for plaintiff in this manner: “Another nonsuit, of course; this time voluntary, but enforced by exclusion of essential testimony, to wit, that part of the evidence of defendant Russ contained in his examination by plaintiff before the clerk, which appears from the middle of page 2 to bottom of page 4 of the record; also the insurance policy.”

It is contended that for the purpose of showing that the truck in question was owned jointly by defendants Russ and the Pulp Company this testimony and the policy were competent as evidence in the case. Even so, conceding that the purpose for which the testimony and policy were offered by plaintiff comes within the principle announced and applied in *Davis v. Shipbuilding Co.,*180 N. C., 74, 104 S. E., 82, in *Rivenbark v. Oil Corp.,*217 N. C., 592, 8 S. E. (2d), 919, and in *Isley v. Winfrey,*221 N. C., 33, 18 S. E. (2d), 702, and referred to and discussed in *Herndon v. Massey,*217 N. C., 610, 8 S. E. (2d), 914, we are of opinion that the error is harmless in that when the excluded evidence is considered with all other evidence admitted at the trial, plaintiff fails to make out a case for the jury. The burden is on the plaintiff as appellant, not only to show error but prejudicial error, *Wilson v. Lumber Co.,*186 N. C., 56, 118 S. E., 797; *Collins v. Lamb,*215 N. C., 719, 2 S. E. (2d), 863; *Tolley v. Creamery, Inc.,*217 N. C., 255, 7 S. E. (2d), 502.

Moreover, the present ease is distinguishable from those cases in which a new trial is ordered as in *Morgan v. Benefit Society,*167 N. C., 262, 83 S. E., 479; *Midgett v. Nelson,*212 N. C., 41, 192 S. E., 854; *Ledwell v. Milling Co.,*215 N. C., 371, 1 S. E. (2d), 841; *Brown v. Montgomery Ward & Co.,*217 N. C., 368, 8 S. E. (2d), 199; *Caulder v.*
      *352
      *Motor Sales, Inc.,*221 N. C., 437, 20 S. E. (2d), 338; *Webster v. Charlotte,*222 N. C., 321, 22 S. E. (2d), 900, and tbe line of cases bolding tbat where tbe only evidence to sustain tbe cause of action alleged by plaintiff is incompetent, but erroneously admitted, and an appeal is taken by tbe defendant for tbe refusal of judgment of nonsuit thereon, this Court will not overrule tbe trial court and grant tbe nonsuit. Tbe reason assigned for sucb bolding is tbat if tbe evidence bad been ruled out, as it should have been, tbe plaintiff may have substituted other competent evidence in its place to support bis cause of action.

In tbe case in band, however, tbe evidence was rejected and tbe plaintiff then bad tbe opportunity to mend bis fences and offer other evidence if available. And in sucb event, tbe burden is on tbe plaintiff to offer such other evidence which will, with tbe rejected competent evidence, make out a case for tbe jury.

Applying these principles to tbe case in band, tbe evidence admitted, together with tbe evidence rejected, taken in tbe light most favorable to plaintiff, shows, and all tbat it tends to show is tbat tbe truck jointly owned by defendants Euss and Pulp Company for tbe purpose of hauling pulpwood was at tbe time in question being operated by Euss with consent of tbe Pulp Company in hauling Irish potatoes for one Ben Aycock, a third person. There is no evidence tbat tbe Pulp Company bad any interest in tbe hauling of tbe Irish potatoes or tbat it was receiving any benefit from it or tbat tbe truck was being operated in its behalf. Thus with respect to tbe operation of tbe truck in hauling Irish potatoes, tbe evidence is insufficient to establish between tbe Pulp Company and defendant Euss tbe relationship of principal and agent or that of partnership.

However, plaintiff does not contend tbat tbe mere ownership by tbe Pulp Company of an interest in tbe truck would make it liable for personal injuries caused by tbe truck, *Parrot v. Kantor,*216 N. C., 584, 6 S. E. (2d), 40; nor does tbe plaintiff contend tbat a partnership would be liable for an injury done by a truck owned by it if tbe driver, even though a partner, be not acting within tbe scope of tbe business and authority of tbe. partnership. 40 Am. Jur. Partnership, sections 136, 137. But tbe plaintiff contends tbat a relation of partnership existed between tbe defendant Euss and Pulp Company with respect to tbe operation of tbe truck for hauling pulpwood and tbat upon tbat being shown, and upon evidence of tbe consent of tbe Pulp Company for Euss to operate tbe truck in hauling Irish potatoes for Ben Aycock being also shown, tbe law will imply tbat tbe partnership was enlarged to cover sucb operation. *Non sequitur.*

Hence, tbe judgment below is

Affirmed.