Helms v. Rea

• Decision Date: 02 February 1973
• Docket Number: No. 84,84
• Citation: 282 N.C. 610,194 S.E.2d 1
• Court: North Carolina Supreme Court
• Parties: Glenn E. HELMS v. W. Reid REA, Administrator of the Estate of Mabel Rea, Deceased.

Page 1

194 S.E.2d 1

282 N.C. 610

Glenn E. HELMS v. W. Reid REA, Administrator of the Estate of Mabel Rea, Deceased.

No. 84.

Supreme Court of North Carolina.

Feb. 2, 1973.

Harkey, Faggart, Coira & Fletcher, Charlotte, for plaintiff-appellee.

Craighill, Rendleman & Clarkson and Ervin, Burroughs & Kornfeld, Charlotte, for defendant-appellant.

SHAPP, Justice.

This appeal presents a two-fold question: (1) Did Judge McLean err in granting plaintiff's motion to dismiss defendant's counterclaim (made under G.S. § 1A--1, Rule 41(b) and (c)) on the ground that there was no evidence tending to show that plaintiff was the operator of the automobile at the time of the accident in suit; and (2) if so, since this was a nonjury case, was this error of law cured by the judge's subsequent finding in his judgment on the merits that Miss Rea was the operator of the vehicle and plaintiff the passenger? This question requires us to marshal the evidence, which--in pertinent part--is briefed below:

In December 1968 Miss Rea, as president and owner of 98% Of the stock of Mabel Rea, Inc., was engaged in building Swan Run Village Apartments in Charlotte. Plaintiff was employed by the corporation as superintendent. Miss Rea had living quarters in a house in the Swan Run area. Plaintiff, along with his teenage son and daughter, also lived in the house.

Plaintiff frequently drove Miss Rea's two-door Mercedes Benz automobile, and on the night of 23 December 1968 he had attached to it the license plates which had been issued to him for his 1966 Thunderbird automobile. The Mercedes had two individual bucket seats in the front compartment; they were not equipped with seat belts. Between these two seats was a console, about seat level, which went to the fire wall.

About 10:00 p.m. on that evening plaintiff and Miss Rea arrived at the home of Mrs. Dotty Ross, where a Christmas party was in progress. Plaintiff wore a tuxedo and Miss Rea, a long, formal evening gown, the skirt of which 'went to the ground.' Her wrap was a mink (or ermine) stole. The weather was very cold.

Plaintiff's own testimony tended to show:

Before leaving Miss Rea's house for the party at about 9:30 p.m., both he and she had had 'a little drink.' He drove the Mercedes to the home of Mrs. Ross. It was common knowledge that Miss Rea did not like to drive a car and that he 'almost always did the driving' when he was with her. However, it was not unusual for her to drive home from a party. At Mrs. Ross's party they both 'had something to drink' and had been drinking 'in each other's presence.' When they left Mrs. Ross's home about 4:00 a.m., Miss Rea was driving. She drove because the car had been parked on the curb and she would have had to walk through a mud puddle to get in on the right or passenger's side. At a point about 10 miles from the Ross home, driving south on Providence Road, Miss Rea approached its intersection with Cedar Lane at a speed of 70 mph. She was 'in the left most lane' where a left turn was required. To avoid hitting the median, which separated the lanes for north and south-bound traffic, she swerved to the right, then to the left, and back to the right into a utility pole and a cedar tree. When plaintiff saw there would be a collision, he picked up a glass which had been sitting on the console and put it between his legs 'so it wouldn't get broke.' The collision occurred about ten miles from the Ross home.

Police Officers Luther and Rushing received notice of the accident about 4:18 a.m. At that time the temperature was 12 and everything was frozen. Luther arrived at the scene at 4:22 a.m. and Rushing came a few minutes later. Luther found the lights burning on the Mercedes, which was located a few feet south of the east line of Cedar Lane. The vehicle was sitting diagonally across the line separating the two southbound lanes of Providence Road and pointed toward the utility pole.

Miss Rea was lying face up in the highway, her body about parallel with the line dividing the lanes for southbound traffic. Her head was to the north (toward Charlotte) and her feet were pointed toward the right front wheel of the Mercedes. Varying estimates put her feet from 3--17 feet away from the wheel and her head from 15 or 20 feet to 8.5 or 10.5 feet away. Her stole was about two feet from her body; her small clutch bag, which contained no driver's license or other identification, was on the highway close to her. The right front door of the automobile was open; the left door was closed. In the opinion of Officer Rushing Miss Rea was dead when he arrived at the scene. She had hemorrhaged from her nose, mouth, and ears. On the side of her face she had a lump that stuck out from her cheekbone about three inches. Her lips were swollen as if 'she had hit something real hard.' The coroner reported the cause of death as a broken neck and severe head injuries.

Plaintiff was partly in and partly out of the right side of the car. His legs 'from some point near the knee' were in the car and the rest of his body was hanging out of the right door of the car to the pavement. His head was angling toward the rear of the car. He was unconscious and there was an odor of alcohol about him. He had suffered head injuries, facial lacerations, broken ribs, and a ruptured right kidney.

There was no damage to the roof of the car and none to the left side. There was considerable damage on the right side. The right fender of the Mercedes was damaged and the right side of the windshield broken. However, the hole in the windshield was not large enough for a person to have gone through it. The rearview mirror, which had been attached above the windshield over the console and had protruded downward several inches from the top of the windshield, was broken off. The bloody mirror was found on the pavement approximately one foot to the right of plaintiff's belt line. There was an indentation on the right door and also extensive damage to the body back of the right door. The right rear tire was flat.

Skid marks, 250--300 feet in length, led to the automobile. They began on the right side of Providence Road north of Cedar Lane, continued through the intersection, and into the utility pole and cedar tree. The pole was located in the southeast corner of the intersection about three feet from the curb line. The tree was in line with the pole and about six to eight feet south of it. The pole was broken and the cedar tree was so badly damaged it had to be removed. Debris from the impact was scattered about the area and onto the highway.

In the floorboard of the automobile, on the left side of the console, Officer Luther found an empty drinking glass from which came the strong odor of an intoxicant.

Approximately seven and a half weeks after the accident, on 14 February 1969, Officers Rushing and Luther interviewed plaintiff at his brother's home, where he was recuperating. Plaintiff told the officers that he had no recollection whatever of the accident or of preceding events; that the last thing he remembered was getting a haircut at least twelve hours prior to the accident. After making that statement he asked the officers what they thought had happened. Each told plaintiff that, in his view, the evidence pointed to him as the driver of the car. When he asked them on what they based that opinion the officers told him that, in their opinion, the Mercedes was traveling out of Charlotte of Providence Road at a high rate of speed; that it hit the median curb, went out of control, hit the utility pole and tree, and was whirled around 23 feet; that he and Miss Rea were thrown out, that the construction of the car, its path before and after the impact, the position of the bodies, and the damage to the car convinced them that the person on the right must have fallen out first, and that plaintiff could not have possibly been sitting on the right. In reply to this plaintiff said that he could give them no information they did not have; that he just did not know who was driving. He never denied that he was the driver.

At the trial on cross-examination plaintiff testified that when Rushing and Luther interviewed him he knew they were investigating a possible manslaughter case; that notwithstanding, and although he knew Miss Rea was driving and he was not, he told the officers he did not know who was driving the Mercedes. When asked why he didn't drive the car home from the party he said that, upon arriving at Mrs. Ross's, he had parked the vehicle on the shoulder of the road; that when they 'came out it just so happened that ther was a mud puddle there' on the passenger's side, and Miss Rea had said, 'I'll drive.'

Plaintiff admitted that since the accident he had been convicted of driving while intoxicated. He also said he could not remember all the speeding tickets he had received from time to time.

Billy Gene Somerset, a witness for defendant and a former escort of Miss Rea's, testified that at some indefinite time in the early morning hours of December 24th he had passed her Mercedes Benz on Rama Road and recognized plaintiff as the driver and Miss Rea as the passenger.

It is well established in this jurisdiction that the identity of the driver of an automobile at the time of a collision may be established by circumstantial evidence, either alone or in combination with direct evidence. Drumwright v. Wood, 266 N.C. 198, 146 S.E.2d 1 (1966); Thomas v. Morgan, 262 N.C. 292, 136 S.E.2d 700 (1964); Pridgen v. Uzzell, 254 N.C. 292, 118 S.E.2d 755 (1961); Bridges v. Graham, 246 N.C. 371, 98 S.E.2d 492 (1957). '(C) ircumstantial evidence is not only a recognized and accepted instrumentality in the ascertainment of truth, but is essential, and, when properly understood and applied, highly satisfactory in matters of the gravest moment.' State v. Alston, 233 N.C. 341, 344, 64 S.E.2d 3, 5 (1951). When sufficiently strong, circumstantial evidence is as competent as positive evidence to prove a...