Duckworth v. Metcalf, 363

• Decision Date: 19 October 1966
• Docket Number: No. 363,363
• Parties: Howard J. DUCKWORTH, Plaintiff, v. James P. METCALF and William L. Courtney, Defendants.
• Court: North Carolina Supreme Court

Page 485

150 S.E.2d 485

268 N.C. 340

Howard J. DUCKWORTH, Plaintiff, v. James P. METCALF and William L. Courtney, Defendants.

No. 363.

Supreme Court of North Carolina.

Oct. 19, 1966.

Patton, Ervin & Starnes, Morganton, for defendant appellant.

Byrd, Byrd & Ervin, Morganton, for defendants appellees.

LAKE, Justice.

There was no error in the denial of the motion by Metcalf for a judgment of nonsuit. Upon such motion, the evidence offered by the plaintiff must be taken to be true and considered in the light most favorable to him and evidence offered by the defendant tending to contradict or rebut the plaintiff's evidence must be disregarded. Bennett v. Young, 266 N.C. 164, 169, 145 S.E.2d 853, and cases there cited. So interpreted, the plaintiff's evidence is sufficient to show that the proximate cause of the plaintiff's injuries was the act of Courtney in undertaking to pass another vehicle proceeding in the same direction when the left side of the highway was not clearly visible and free of oncoming traffic for a sufficient distance ahead to permit him to pass in safety. This, if true, showed a violation of G.S. § 20--150(a) and such evidence was sufficient to require the submission to the jury of the issue of negligence by Courtney. Bondurant v. Mastin, 252 N.C. 190, 113 S.E.2d 292; McEwen Funeral Service v. Charlotte City Coach Lines, 248 N.C. 146, 102 S.E.2d 816; Cole v. Fletcher Lumber Co., 230 N.C. 616, 55 S.E.2d 86. Proof that the automobile was owned by and registered in the name of Metcalf, which is admitted in his answer and in his testimony, is prima facie evidence that it was being operated with his authority and knowledge at the time of the accident, and that Courtney was driving the vehicle within the course and scope of his employment by Metcalf. G.S. § 20--71.1. The evidence of Metcalf to the contrary could not be considered upon his motion for judgment of nonsuit. Consequently, there was evidence which would support a verdict that the plaintiff was injured by the negligence of Metcalf and it was proper to submit that issue to the jury. Johnson v. Wayne Thompson, Inc., 250 N.C. 665, 110 S.E.2d 306; Travis v. Duckworth, 237 N.C. 471, 75 S.E.2d 309.

G.S. 20--71.1 does not, however, abrogate the well settled rule of law that mere ownership of an automobile does not impose liability upon the owner for injury to another by the negligent operation of the vehicle on the part of a driver, who was not, at the time of the injury, the employee or agent of the owner or who was not, at such time, acting in the course of his employment or agency. The burden of proof continues to rest upon the plaintiff to prove such agency relationship between the driver and the owner at the time of the driver's negligence which caused the injury. The statute merely creates a rule of evidence. Proof of ownership of the automobile by one not the driver makes out a prima facie case of agency of the driver for the owner at the time of the driver's negligent act or omission, but it does not compel a verdict against the owner upon the principle of respondeat superior. Chappell v. Dean, 258 N.C. 412, 128 S.E.2d 830; Osborne v. Gilreath, 241 N.C. 685, 86 S.E.2d 462.

It is elementary that a principal or employer is not liable for injury due to a negligent act or omission of his agent or employee when such agent or employee has departed from the course of his employment and embarked upon a mission or frolic of his own. Travis v. Duckworth, supra, and cases there cited. It is, of course, not sufficient to take the servant out of the course of his employment, and thus to relieve the employer from responsibility for the negligent act or omission...