Donivant v. Swaim

• Decision Date: 19 May 1948
• Docket Number: 669
• Citation: 47 S.E.2d 707,229 N.C. 114
• Parties: DONIVANT v. SWAIM et al.
• Court: North Carolina Supreme Court

47 S.E.2d 707

229 N.C. 114

DONIVANT v. SWAIM et al.

No. 669

Supreme Court of North Carolina

May 19, 1948

Civil action to recover for personal injuries alleged to have been sustained by plaintiff as a result of the negligence of the defendants.

On 5 April, 1946, about 8:30 A.M., the plaintiff was standing on the sidewalk at the intersection of West Lee Street and Highland Avenue, in the City of Greensboro, N. C., waiting for the trackless trolley to take her into town, when she was struck and seriously injured by an automobile driven by the defendant Slocum S. Siler.

The appellant's truck, driven by Hubert Ring was proceeding West on West Lee Street, and the defendant Siler was proceeding in the same direction. The driver of the appellant's truck testified that he gave the required signal to indicate his intention to turn left at the intersection of West Lee Street and Highland Avenue. The defendant Siler denied that any signal was given by the driver of the appellant's truck, but Siler testified he undertook to pass the truck in the intersection without sounding his horn or giving any signal of his intention to pass the truck. The evidence tends to show that when the appellant's truck started to turn left, the defendant Siler's car came in contact with the left front fender of the truck and Siler lost control of his car and ran on the sidewalk, at the Southwestern intersection of the streets and hit the plaintiff.

The jury returned a verdict against both defendants, and judgment was duly entered thereon.

The defendant J. H. Swaim appealed to the Supreme Court assigining error.

Frazier & Frazier and J. A. Cannon, Jr., all of Greensboro, for plaintiff.

Smith, Wharton & Jordan and McNeill Smith, all of Greensboro, for defendant-appellant.

DENNY Justice.

The appellant assigns as error the refusal of the court below to allow his motion for judgment as of nonsuit, made at the close of plaintiff's evidence and renewed at the close of all the evidence.

The appellant contends the evidence adduced in the trial below is insufficient to show that the driver of his truck was his agent, and engaged in the scope of his employment at the time plaintiff sustained her injury, citing Temple v. Stafford, 227 N.C. 630, 43 S.E.2d 845; Rogers v. Black Mountain, 224 N.C. 119, 29 S.E.2d 203; Russell v. Cutshall, 223 N.C. 353, 26 S.E.2d 866; Riddle v. Whisnant, 220 N.C. 131, 16 S.E.2d 698; Hawes v. Haynes, 219 N.C. 535, 14 S.E.2d 503; Swicegood v. Swift & Co., 212 N.C. 396, 193 S.E. 277; Cotton v. Transportation Co., 197 N.C. 709, 150 S.E. 505; and Grier v. Grier, 192 N.C. 760, 135 S.E. 852.

The plaintiff alleges in paragraph 3 of her complaint: 'That at the times herein complained of, Hubert Ring was in the employ of the defendant and such agent was at such time engaged within the scope of his employment in the furtherance of the business of said defendant, and was at such time engaged in the very transaction out of which the personal injury to the plaintiff arose. ' The defendant Swaim says in his answer: 'That as to the allegations contained in Article 3 of the complaint, it is admitted that Hubert Ring was in the employ of the defendant on 5 April, 1946,' and in his further answer he says: 'That on 5 April, 1946, at about 8:30 A.M., Hubert Ring, an employee of the defendant J. H. Swaim, was operating the defendant J. H. Swaim's Ford pick-up truck in a westerly direction along West Lee Street in the City of Greensboro at a careful, prudent and lawful rate of speed not in excess of 25 miles per hour,' etc.

The appellant introduced evidence tending to show that at the time of plaintiff's injury, Hubert Ring was driving his truck on a trip for the appellant's father, C. M. Swaim. The evidence is conflicting as to who paid Ring for his work on 5 April, 1946. It does appear, however, the appellant had employed him for two or three months prior to the time in question to do whatever he was told to do. The appellant operated four or five farms. He had two trucks at the time and Hubert Ring had driven both of them. He had collected money, and on such trips...