Branch v. Dempsey, 194

Decision Date15 December 1965
Docket NumberNo. 194,194
Citation265 N.C. 733,145 S.E.2d 395
CourtNorth Carolina Supreme Court
PartiesJessie W. BRANCH, Executrix of Estate of Douglas M. Branch, v. Delhart DEMPSEY and Walter LeRoy Simons.

Jordan & Toms, Douglass & Douglass, Raleigh, and John R. Jenkins, Jr., Aulander, for plaintiff appellant.

Pritchett & Cooke, Windsor, Cherry & Cherry, Ahoskie, Broughton & Broughton, Raleigh, for defendant Simons.

Jones, Jones & Jones, Ahoskie, for defendant Dempsey.

LAKE, Justice.

Upon a motion for judgment of nonsuit the evidence of the plaintiff, together with all reasonable inferences to be drawn therefrom, must be taken to be true and must be interpreted in the light most favorable to the plaintiff. Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E.2d 338; Ammons v. Britt, 256 N.C. 248, 123 S.E.2d 579. However, in order to survive such motion by Dempsey, the evidence, when so construed, must be sufficient to sustain the burden which rests upon the plaintiff of proving negligence by the defendant Dempsey and that such negligence was the proximate cause of the death of Dr. Branch or of the damage to the station wagon or both. To survive such motion by Simons, the evidence, so construed, must also show that Dempsey was driving Simon's truck under such circumstances as to impose legal liability upon Simons for Dempsey's negligence.

Each defendant in his answer admits that Simons was the owner of the Ford truck. A certified copy of the registration of the truck with the North Carolina Department of Motor Vehicles was introduced in evidence by the plaintiff and so shows.

G.S. § 20-71.1 provides that in an action to recover damages for injury to property or for injury to or the death of a person, arising out of an accident or collision involving a motor vehicle, 'Proof of the registration of a motor vehicle in the name of any person, firm, or corporation, shall for the purpose of any such action, be prima facie evidence of ownership and that such motor vehicle was then being operated by and under the control of a person for whose conduct the owner was legally responsible, for the owner's benefit, and within the course and scope of his employment.' (Emphasis added.) Proof of ownership, which is here admitted by the pleadings, is also prima facie proof of agency. Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767. This statute creates no presumption and gives rise to no inference as to the existence of any agency relation before the operation of the vehicle begins or after it stops. It makes no reference to any authority of the driver to affect the owner's liability to other persons otherwise than by the driver's conduct in the operation and control of the vehicle.

There being no evidence to rebut this prima facie proof, the plaintiff's evidence is sufficient to show that, if Dempsey was driving the truck, he was the agent of simons and was driving in the course of his employment so as to impose upon Simons legal liability for any negligence by Dempsey in such driving which was the proximate cause of the death of Dr. Branch or of damage to the station wagon. Howard v. Sasso, 253 N.C. 185, 116 S.E.2d 341. It, of course, remains for the plaintiff to show, by evidence competent against Simons, that the driver was negligent.

It is, indeed, elementary that if an agent is negligent in the performance of an act in the course of his employment and such negligence is the proximate cause of the death of a third person, the principal, or master, is liable in damages without any showing of negligence on the part of the principal, himself. However, it is equally well settled that judgment may not be recovered against either the agent or the principal until the plaintiff introduces evidence competent against that defendant and sufficient to support a finding of each fact upon which the liability of that defendant depends.

Dempsey, the agent, is not liable for the death of Dr. Branch, unless (1) Dempsey was negligent in the operation of the truck and (2) his negligence was the proximate cause of the death. Unless there is in the record evidence, competent against Dempsey, to prove both of these essential facts the judgment of nonsuit against Dempsey should be affirmed.

Simons, the principal, is not liable for the death of Dr. Branch unless (1) at the time of the collision the relation between Simons and Dempsey was such as to make Simons legally responsible for Dempsey's acts and omissions in the operation and control of the truck, (2) Dempsey was negligent in such operation or control, and (3) this negligence was the proximate cause of the death. Unless there is in the record evidence, competent against Simons, to prove each of these essential facts the judgment of nonsuit against Simons should be affirmed.

By the force of G.S. § 20-71.1 there is sufficient evidence to support, but not compel, a finding for the plaintiff against Simons on the first of these essential facts, but that is the full effect of this statute. Before the plaintiff may recover from Simons, she must prove, by evidence competent against him, that Dempsey was negligent and that his negligence was the proximate cause of the death.

If the plaintiff had elected to sue only Simons, the principal, as she might have done, it would be obvious that she could recover only upon the basis of evidence, competent as against him, to show these three basic facts. Even if she had first sued Dempsey, the agent, and had obtained a judgment against him, the matter of his negligence would not be deemed res judicata in a subsequent action by her against Simons, the principal. Pinnix v. Griffin, 221 N.C. 348, 20 S.E.2d 366, 141 A.L.R. 1164; Gadsden v. George H. Crafts & Co., 175 N.C. 358, 95 S.E. 610, L.R.A.1918E, 226. In the Pinnix case, Barnhill, J., later C. J., speaking for the Court, said:

'It is an obvious principle of justice that no man ought to be bound by a proceeding to which he is a stranger. * * * Hence, a judgment against the agent is not conclusive in an action against the principal.'

If a judgment against the agent, judicially determining that his negligence was the proximate cause of the plaintiff's injury, is not sufficient to establish the principal's liability under the doctrine of respondeat superior, surely mere evidence of his negligence will not be sufficient for that purpose unless it be evidence competent against the principal. Suing both the principal and the agent in the same action is merely for convenience. It does not change the facts essential for recovery or the applicable rules of evidence.

In Anderson v. Talman Office Supplies, 234 N.C. 142, 66 S.E.2d 677, Barnhill, J., later C. J., again speaking for the Court, said:

'That the declarations of Dockery [the driver] made immediately after the collision were admitted only as against him does not affect the result as to the corporate defendant. It is not alleged that the corporate defendant committed any act of negligence. As to it, plaintiff relies on the doctrine of respondeat superior. If, upon consideration of all the evidence, the jury shall find that plaintiff suffered injuries as a proximate result of the negligence of Dockery, then Dockery's negligence will be imputed to the corporate defendant, thus imposing liability upon it for the injuries sustained.'

It appears from the report of the Anderson case that there the statement of the driver admitting his negligence was made immediately after the collision and so might well have been admitted as evidence against the employer on the ground that it was part of the res gestae. 20 Am.Jur., Evidence, § 676. Furthermore, an examination of the record in that case discloses that there the plaintiff, himself, testified as to the negligent act of the driver. Thus, in the Anderson case there was ample evidence, competent against the owner-principal, to support a finding that his agent was negligent and that such negligence was the proximate cause of the plaintiff's injury, so the reversal of the judgment of nonsuit as to the principal was proper. The Anderson decision does not support the proposition that such a judgment as to the principal should be reversed when there is evidence of negligence competent against the agent but no such evidence competent against the principal. In the latter situation, though the agent may be held liable the principal may not be so held. This is not in conflict with, or an erosion of, the doctrine of respondeat superior. It is simply a refusal to apply that doctrine where, as against the principal, there is no evidence of a fact which is an essential element of the doctrine.

Two years after the Anderson case, Barnhill, J., later C. J., again speaking for the Court, said in Hartley v. Smith, supra, with reference to G.S. § 20-71.1:

'[T]his Act was designed and intended to, and does, establish a rule of evidence which facilitates proof of ownership and agency in automobile collision cases where one of the vehicles is operated by a person other than the owner. It was not 'enacted and designed to render proof unnecessary,' nor does proof of registration or ownership make out a prima facie case for the jury on the issue of negligence. Neither is it sufficient 'to send the case to the jury', or 'support a finding favorable to the plaintiff under that first (negligence) issue,' or 'to support a finding against a defendant' on the issue of negligence. * * *

'Non constat the statute, it is still necessary for the party aggrieved to allege both negligence and agency in his pleading and to prove both at the trial.'

Each defendant in his answer denies that Dempsey was driving the truck, denies that any collision occurred between the truck and the Branch vehicle, denies all allegations of negligence by either defendant and denies that the death of Dr. Branch and the damage to the station wagon resulted from any negligent act or omission of either defendant.

No witness testified that Dempsey was driving...

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