Taylor v. Parks

• Decision Date: 22 March 1961
• Docket Number: No. 167,167
• Parties: Norine U. TAYLOR v. Robert Linnie PARKS.
• Court: North Carolina Supreme Court

Page 779

118 S.E.2d 779

254 N.C. 266

Norine U. TAYLOR v. Robert Linnie PARKS.

No. 167

Supreme Court of North Carolina.

March 22, 1961

Jones, Jones & Jones, Murfreesboro, and Gay, Midyette & Turner, Jackson, for plaintiff-appellant.

Ruark, Young, Moore & Henderson by J. C. Moore and J. Allen Adams, Raleigh, and Cherry & Cherry by J. Carlton Cherry, Ahoskie, for defendant-appellee.

PARKER, Justice.

Plaintiff instituted her action on 27 January 1960, within one year after her cause of action accrued. Consequently, she is allowed the benefit of G.S. § 20-71.1.

The complaint and answer were verified. Defendant admits in his answer ownership of the 1946 Plymouth automobile at the time of the collision of this automobile and the Ford automobile in which plaintiff was riding as a passenger. This is the judicial admission of a fact in the final pleadings defining the issues and on which the case went on trial (Stansbury, N.C. Evidence, p. 380; 31 C.J.S. Evidence § 301), and by virtue of the provisions of G.S. § 20-71.1(a) constitutes prima facie evidence that the 1946 Plymouth automobile was being operated and used by Arnold Charlie Pope at the time of the collision here with the authority, consent, and knowledge of the owner, Robert Linnie Parks, in the very transaction out of which plaintiff's injury arose.

This Court said in Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767, 772: 'The statute (G.S. § 20-71.1) was designed to create a rule of evidence. Its purpose is to establish a ready means of proving agency in any case where it is charged that the negligence of a nonowner operator causes damage to the property or injury to the person of another. Travis v. Duckworth, 237 N.C. 471, 75 S.E.2d 309. It does not have, and was not intended to have, any other or further force or effect.' This Court in Roberts v. Hill, 240 N.C. 373, 82 S.E.2d 373, 378, after quoting the above, says: 'This language appearing in the Hartley case was used advisedly. We adhere to what is there said.'

Plaintiff's cause of action, as set forth in her complaint, is bottomed on the theory 'the defendant was the owner of a 1946 Plymouth coupe, which was being operated by Arnold Charlie Pope with his consent or as his agent, servant or employee, and within the scope and course as said agent, servant or employee of this defendant.'

However, plaintiff not content with the judicial admission in defendant's answer that he was the owner of the 1946 Plymouth automobile at the time of the collision here, which constitutes 'prima facie evidence that said motor vehicle was being operated and used with the authority, consent, and knowledge of the owner in the very transaction out of which said injury or cause of action arose,' by virtue of the provisions of G.S. § 20-71.1(a), went on and adduced on direct examination from her witnesses State highway patrolman Thad Jernigan and police officer Thomas Pope clear, convincing and uncontradicted statements made to them by defendant to the effect that Arnold Charlie Pope on 27 June 1959 had taken his Plymouth automobile and was driving it at the time of the collision here without his authority, consent, and knowledge, that he was at the time neither his agent, servant nor employee, and that he was not driving the Plymouth automobile at the time for his benefit, and not driving it at the time within the course and scope of any employment by him. Not a single fact or circumstance appearing of record contradicts defendant's declarations offered in evidence by plaintiff by direct examination of her two above mentioned witnesses, and offered by her as worthy of belief.

If plaintiff had not brought out from her witnesses on their direct examination the above declarations of defendant, and if plaintiff had rested her case, and defendant had testified to the same facts as clearly, convincingly, and without contradiction, as such declarations of his appear in plaintiff's case, it seems that under the authority of Travis v. Duckworth, 237 N.C. 471, 75 S.E.2d 309, 312, defendant would have been entitled to have the trial court give a peremptory instruction to the effect that it should answer the issue of agency or of driving the automobile by Pope with the authority, consent, and knowledge of defendant in the negative, if it 'found the facts to be as the evidence tended to show.' To the same effect, Jyachosky v. Wensil, 240 N.C. 217, 81 S.E.2d 644; Davis v. Lawrence, 242 N.C. 496, 87 S.E.2d 915; Skinner v. Jernigan, 250 N.C. 657, 110 S.E. 2d 301; Whiteside v. McCarson, 250 N.C. 673, 110 S.E.2d 295. See the elaborate and scholarly opinion in Bradley v. S. L. Savidge, Inc., 13 Wash.2d 28, 123 P.2d 780, where decisions are collected from the Federal Courts, from 29 States, and from the District of Columbia, including North Carolina, which announce and adhere to the rule that the presumption or inference of fact as to agency in cases of the nature of the case here is overcome by evidence which is uncontradicted, clear and convincing, regardless of whether it comes from interested or disinterested witnesses.

G.S. § 20-71.1(b) is not applicable, for the reason that plaintiff has neither allegation nor proof as to the registration of the 1946 Plymouth.

The question presented for decision is this: Does plaintiff's own proof rebut the rule of evidence created by G.S. § 20-71.1(a), and show that Arnold Charlie Pope was driving defendant's Plymouth automobile at the time of the collision here without defendant's authority, consent and knowledge, and was not at the time defendant's agent, servant or employee acting in the course and scope of his employment in the very transaction out of which plaintiff's injuries arose?

Teague et al. v. Pritchard et al., 38 Tenn.App. 686, 279 S.W.2d 706, certiorari denied by Supreme Court, is directly in point, because Tennessee has two statutes substantially similar to G.S. § 20-71.1. These four cases, which were tried jointly, arose out of an automobile collision on 16 May 1952, in Memphis, Tennessee, when the car of plaintiff, Edgar Teague, driven by the plaintiff, Laverne Teague, and occupied by the other plaintiffs, was struck by a Ford station wagon owned by the defendant, Ralph Pritchard, negligently operated by an unidentified youth about eighteen years of age, who ran a stop light. The young driver ran off immediately after the collision, and has never been apprehended or identified. The suits were for personal injuries and property damage. Upon the trial plaintiffs offered substantial evidence as to their injuries and the negligence of the driver of the Ford station wagon, that the defendant, Pritchard, had loaned the car to the defendant, Mrs. Williams, to collect certain rentals for Mr. Pritchard, that the car was left parked at night by Mrs. Williams during the Cotton Carnival while she had gone to Mississippi for a visit, and soon thereafter some unidentified person, without the knowledge or permission of the owner, Pritchard, or the bailee, Mrs. Williams, took the station wagon and caused plaintiffs' injuries sued on in this cause. Upon the conclusion of plaintiffs' evidence, the defendants moved for, and were granted directed verdicts in each of the four cases. Plaintiffs appealed to the Court of Appeals. In the Court of Appeals they insisted they were entitled to go to the jury by reason of the provisions of Sections 2701 and 2702 of the Tennessee Code, which sections are quoted in the Court's opinion. These sections of the Code quoted in the Court's opinion are set forth in Tennessee Code, Annotated, Official Edition, Volume 10, §§ 59-1037 and 59-1038. Sections 2701 and 59-1037, which are identical, read as follows: 'Prima facie evidence of ownership of automobile and use in owner's business.--In all actions for injury to persons and/or to property caused by the negligent operation or use of any automobile, auto truck, motorcycle, or other motor propelled vehicle within this state, proof of ownership of such vehicle, shall be prima facie evidence that said vehicle at the time of the cause of action sued on was being operated and used with the authority, consent and knowledge of the owner in the very transaction out of which said injury or cause of action arose.' Sections 2702 and § 59-1038, which are identical, read as follows: 'Registration prima facie evidence of ownership and that operation was for owner's benefit. Proof of the registration of said motor propelled vehicle in the name of any person, shall be prima facie evidence of ownership of said motor propelled vehicle by the person in whose name said vehicle is registered; and such proof of registration shall likewise be prima facie evidence that said vehicle was then and there being operated by the owner or by the owner's servant for the owner's use and benefit and within the course and scope of his employment.' Sections 2702 and § 59-1038 were not applicable, because, after Pritchard's attorney admitted Pritchard owned the automobile involved in the collision, plaintiffs offered no evidence as to the registration of the car. The Court said [38 Tenn.App. 686, 279 S.W.2d 710]: 'However, if we assume that the plaintiffs' attorney understood defendant to be admitting the registration as well as the ownership, we do not think that this would give him the right to go to the jury on the presumption created by Sections 2701 and 2702. Our Courts have often held that this presumption is rebuttable in the face of credible evidence that the car at the time of the injuries complained of was driven without the owner's permission. Wright v. Bridges, 16 Tenn.App. 576, 65 S.W.2d 265; Southern Motors v. Moton [Morton] 25 Tenn.App. 204, 154 S.W.2d 801; McMahan v. Tucker, 31 Tenn.App. 429, 216 S.W.2d 356. In the...