Hartley v. Smith

• Decision Date: 15 January 1954
• Docket Number: No. 239,239
• Citation: 79 S.E.2d 767,239 N.C. 170
• Parties: HARTLEY, v. SMITH et al.
• Court: North Carolina Supreme Court

Page 767

79 S.E.2d 767

239 N.C. 170

HARTLEY, v. SMITH et al.

No. 239

Supreme Court of North Carolina.

Jan. 15, 1954

Ruark, Ruark, & Moore, Raleigh, and Wilson & Johnson, Lillington, for plaintiff appellee.

Salmon & Hooper, Lillington, for defendant appellants.

BARNHILL, Justice.

Both the oral and physical testimony tend to show that the collision occurred within the intersection of South Washington Avenue and East Pearsall Street. Therefore it appears beyond peradventure that the two vehicles in fact reached the intersection at approximagely the same time. No witness tendered by plaintiff testified that Hartley reached and entered the intersection at a time when Pope was a sufficient distance away to furnish reasonable grounds for him to assume, and that he did assume, that he could cross the intersection in safety, ahead of Pope's vehicle, without creating an unnecessary traffic hazard. Indeed, there is no evidence, either oral or physical, such as skid marks, tending to show that Hartley ever saw Pope before the vehicles collided. A witness testified the two vehicles were traveling 'at about the same speed' and approached the intersection 'about the same time.' Even so, on this record, the exception to the refusal of the court to enter judgment of nonsuit is untenable. The testimony affords some evidence tending to show that Hartley was not under the duty to slow down and, if necessary, stop and yield the right of way to Pope. The weight and credibility to be accorded this testimony is for the jury to decide.

It is axiomatic with us that in deciding the merits of an exception to the refusal of the trial court to grant a judgment of involuntary nonsuit we must consider the testimony in the light most favorable to the plaintiff and disregard any evidence which tends to contradict or impeach such testimony. When the testimony appearing in this record is so considered, it is made to appear that Hartley was traveling at a speed of only thirty or thirty-five m. p. h.--within the maximum limit allowed in a residence district--while Pope was traveling at least sixty m. p. h.; that Pope did not apply his brakes until the front part of his automobile had entered the intersection, and that although Pope's vehicle ran into the side of Hartley's truck, which must have checked or retarded his speed to a considerable extent, he skidded forty-two feet over the curb, across the sidewalk, knocked down a cement street marker and stopped several feet inside the yard of a house on the lot located at the southeast corner of the intersection. This testimony, if accepted by the jury as representing the truth of the unfortunate occurrence, will support an inference that Pope was operating his vehicle at an excessive rate of speed and that, except for such speed, Hartley reached the intersection in ample time to cross in safety without creating an unnecessary traffic hazard.

It is true the truck traveled--one witness said was knocked--across the sidewalk and yard and ran into the house more than twenty-five feet from the sidewalk. But Hartley received fatal injuries. They may have been inflicted at the time the two vehicles collided. Therefore, on the question of Hartley's apparent lack of control of his truck, Bailey v. Michael, 231 N.C. 404, 57 S.E.2d 372, and Yost v. Hall, 233 N.C. 463, 64 S.E.2d 554, are controlling.

Defendants admit in their answer that defendant Smith owns the 1951 Mercury sedan automobile being operated by her son, defendant Pope, at the time of the collision, 'and that the defendant Thomas Gilbert Pope frequently drove the same by and with the consent, knowledge and approval of the defendant Mrs. B. G. Smith. * * * ' Since this was the admission of a fact which establishes, prima facie, the agency of Pope--a fact at issue--we are of the opinion it was not necessary for plaintiff to offer it in evidence. McCaskill v. Walker, 147 N.C. 195, 61 S.E. 46; Leathers v. Blackwell's Durham Tobacco Co., 144 N.C. 330, 57 S.E. 11, 9 L.R.A.,N.S., 349; Barbee v. Davis, 187 N.C. 78, 121 S.E. 176; Wells v. Clayton, 236 N.C. 102, 72 S.E.2d 16; Royster v. Hancock, 235 N.C. 110, 69 S.E.2d 29; Nantahala Power & Light Co. v. Sloan, 227 N.C. 151, 41 S.E.2d 361; State v. Martin, 191 N.C. 401, 132 S.E. 14.

Connor, J., speaking for the Court in Leathers v. Blackwell's Durham Tobacco Co., supra, says [144 N.C. 330, 57 S.E. 14]:

'It is true that for the purpose of availing himself of admissions not responsive to nor called for by the specific allegations in the former pleadings, but made by way of recital, the party relying upon them must put them in evidence; the reason given in Smith v. Nimocks, 94 N.C. 243, and cases in which it is cited, being that it is but fair to give the party making such admissions an opportunity to explain them. * * * When, however, the plaintiff in making a 'plain and concise statement of facts constituting a cause of action' sets out a date or other material fact, and the defendant, being thus fully informed of the allegation by the plaintiff, expressly admits such material fact so alleged, we can see no good reason why the court may not take such admission as settling such fact for all purposes connected with the trial. It must be conceded that the decisions, heretofore made, in respect to admissions which come within the rule announced in Smith v. Nimocks do not so clearly mark the line of distinction as might be desired. The difficulty experienced in doing so is manifest, but we think it safe to say that when a material fact is alleged in the complaint and admitted in the answer--a fact the denial of which would have presented an issuable controversy in the cause--it may for the purpose of the trial be taken as true. Cui bono submit to the jury an issue or offer proof of something solemnly admitted to be true'?

Plaintiff offered no testimony tending to show that at the time of the collision Pope was the agent or employee of Mrs. Smith and was about his master's business at the time of the collision. He sues on the theory the Mercury was a 'family purpose' automobile and that Pope was a member of Mrs. Smith's family, and, on this aspect of the case, he relies solely on the rule of evidence created by G.S. § 20-71.1 which makes proof of ownership prima facie proof of agency.

As to defendant Smith, these admissions make out a prima facie case of agency which will support, but does not require, a verdict against her, under the doctrine of respondeat superior, for any damages assessed against Pope. G.S. § 20-71.1.

That statute, ch. 494, S.L. 1951, G.S. § 20-71.1, provides that:

'(a) In all actions to recover damages for injury to the person or to property or for the death of a person, arising out of an accident or collision involving a motor vehicle, proof of ownership of such motor vehicle at the time of such accident or collision shall be 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. (b) 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 Provided, that no person shall be allowed the benefit of this section unless he shall bring his action within one year after his cause of action shall have accrued.'

As this statute constitutes the law of the case on the question of the liability of defendant Smith, the court below undertook to analyze and explain it to the jury and apply it to the facts, as they relate to her liability under the doctrine of respondeat superior, as it was its duty to do. G.S. § 1-180. In so doing, it instructed the jury as follows:

'The plaintiff contends, in answer to the defendants' contention that you cannot hold Mrs. Smith liable for that the plaintiff has not shown the relationship of a principal and agent, or master and servant, or employer and employee, and that the servant was about his master's business at the time, plaintiff contends that this very statute was enacted and designed to render proof unnecessary. That is to say, that by reason of this statute, particularly the portion of it reading, 'Proof of registration of a motor vehicle in the name of any person, firm or corporation, shall for the purpsse 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,' not only sends this case to the jury upon the question of ownership and...