Dupree v. Batts, 8

• Decision Date: 10 December 1969
• Docket Number: No. 8,8
• Citation: 276 N.C. 68,170 S.E.2d 918
• Parties: Theodore Jefferson DUPREE, Sr., Administrator of the Estate of Theodore Jefferson Dupree, Jr. v. Buren Thomas BATTS and Minerva Parker Batts and the Chrysler Corporation.
• Court: North Carolina Supreme Court

Page 918

170 S.E.2d 918

276 N.C. 68

Theodore Jefferson DUPREE, Sr., Administrator of the Estate

of Theodore Jefferson Dupree, Jr. v. Buren Thomas BATTS and Minerva Parker Batts and the Chrysler

Corporation.

No. 8.

Supreme Court of North Carolina.

Dec. 10, 1969.

Smith, Leach, Anderson & Dorsett, by John H. Anderson, Young, Moore & Henderson, by Carter G. Mackie, Raleigh, for defendants Buren Thomas Batts and Minerva Parker Batts.

Teague, Johnson Patterson, Dilthey & Clay, by I. Edward Johnson, Raleigh, for defendant Chrysler Corporation.

HIGGINS, Justice.

The plaintiff's evidence disclosed that on and prior to December 22, 1964, Buren Thomas Batts, age 19, lived and worked as an automobile mechanic in Raleigh. At all times pertinent to this controversy his mother, Minerva Parker Batts, resided in Pender County, more than 100 miles from Raleigh.

On the above date, Buren Thomas Batts purchased from O'Neal Motor Company of Raleigh the Plymouth automobile involved in the accident. Because of his age, the purchaser was unable to execute a satisfactory deferred payment lien on the automobile. The purchaser, with his mother's consent, caused the vehicle to be registered in her name. She executed the lien agreement. Buren Thomas Batts kept and used the automobile in Raleigh. Minerva Parker Batts contributed neither to the purchase nor to the maintenance of the automobile which was never in her possession. Consequently, the allegations in the complaint that the kept and maintained the Plymouth as a family purpose automobile, and that Buren Thomas Batts was a member of her household, failed for lack of supporting proof. The complaint did not allege that Buren Thomas Batts was the agent, servant, or employee of his mother, or that he acted or purported to act for her at any time in the use of the automobile.

It is settled law that a court's decree of civil liability must be based on both allegation and proof. In this case, allegation of family purpose is present--proof is absent. There is no allegation that Buren Thomas Batts was acting as his mother's agent in any capacity at the time he wrecked the Plymouth automobile. 'The court can not submit a case to the jury on a particular theory unless such theory is supported by both the pleadings and the evidence.' Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25. 'Proof without allegation is as ineffective as allegation without proof.' Calloway v. Wyatt, 246 N.C. 129, 97 S.E.2d 881.

The plaintiff, however, contends that proof of registration of the Plymouth automobile in the name of Minerva Parker Batts under G.S. § 20--71.1 is sufficient to take the case to the jury as to her without allegation of agency. Actually, the section referred to relates soely to proof and not to allegation. Proof of ownership or proof of registration under G.S. § 20.71.1 shall be Prima facie evidence, etc. However, evidence, direct, circumstantial, or prima facie, does not take away the necessity of alleging agency if the principal is to be held liable. G.S. § 20--71.1 applies when '* * * the plaintiff, Upon sufficient allegations (emphasis added) seeks to hold the owner liable for the negligence of a nonowner operator under the doctrine of respondeat superior.' Howard v. Sasso, 253 N.C. 185, 116 S.E.2d 341; Belmany v. Overton, 270 N.C. 400, 154 S.E.2d 538; Taylor v. Parks, 254 N.C. 266, 118 S.E.2d 779; Whiteside v. McCarson, 250 N.C. 673, 110 S.E.2d 295; Osborne v. Gilreath, 241 N.C. 685, 86 S.E.2d 462; Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767.

Neither Perkins v. Cook, 272 N.C. 477, 158 S.E.2d 584, nor Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47 is in conflict with the above cited cases. In Perkins, the plaintiff alleged the offending vehicle was a family purpose automobile owned by Mrs. Clay and maintained by her for the benefit of her family, including her minor sister, Ruth Cook, the driver. But, in addition to the allegation of family purpose, the complaint, after detailing specific acts of negligence on the part of Ruth Cook, contained this additional allegation: '* * * (A)ll of which acts of negligence on the part of the defendant Ruth Cook, while acting as the agent, employee and servant of the defendant Joan Cook Clay were the direct and proximate causes of the injuries and damages sustained by the plaintiff.' Such allegations of agency make proof of ownership prima facie evidence that the vehicle was being operated at the time of the accident by the owner's agent. Carter v. Thurston Motor Lines, 227 N.C. 193, 41 S.E.2d 586. Proof of registration is prima facie evidence of ownership and that the agent was acting for the owner's benefit and in the scope of his employment, but there must be allegation of agency to make evidence of agency admissible against the principal. Travis v. Duckworth, 237 N.C. 471, 75 S.E.2d 309.

In Bowen, supra, this Court cited Perkins, supra. However, in Bowen, the trial court entered judgment of involuntary nonsuit. The Court of Appeals affirmed the judgment on the ground the plaintiff's evidence disclosed her contributory negligence as a matter of law. This Court reversed the nonsuit, holding the evidence of contributory negligence presented a jury question.

In the instant case, the plaintiff's evidence permitted the inference the defendant Batts placed an oversized, unbalanced tire on the right rear wheel of his Plymouth automobile which would cause the vehicle, during road use, to shimmy and vibrate to the extent he should have known that speed would render the vehicle unsafe. 'Generally speaking, it is the duty of one operating a motor vehicle on the public highways to see that it is in reasonably good condition and properly equipped, so that it may be at all times controlled, and not become a source of danger to its occupants or to other travelers. * * *' Scott v. Clark, 261 N.C. 102, 134 S.E.2d 181. Excessive speed is negligence. Smart v. Fox, 268 N.C. 284, 150 S.E.2d 403.

After the wheel broke down, the vehicle moved 443 feet before it came to rest, 'on its top'. The driver admitted to the investigating officer that his speed...