Johnson v. Wayne Thompson, Inc.

• Decision Date: 23 September 1959
• Docket Number: No. 89,89
• Citation: 110 S.E.2d 306,250 N.C. 665
• Parties: Mrs. Betty W. JOHNSON v. WAYNE THOMPSON, INC.
• Court: North Carolina Supreme Court

Page 306

110 S.E.2d 306

250 N.C. 665

Mrs. Betty W. JOHNSON v. WAYNE THOMPSON, INC.

No. 89

Supreme Court of North Carolina.

Sept. 23, 1959

Uzzell & DuMont, by William E. Greene, Asheville, for plaintiff, appellee.

Williams & Williams, Asheville, for defendant, appellant.

PARKER, Justice.

Plaintiff's evidence tends to show these facts:

On 29 December 1956 plaintiff, while riding in an automobile driven by her sister, Lona W. Thompson, was seriously injured, when the automobile ran off the road and crashed into a tree. On that date, W. A. W. Thompson, husband of Lona W. Thompson was president of the defendant company and his wife was treasurer. R. E. Perkins was vice-president, and his wife was secretary. The Thompsons owned 50% of the stock of the defendant, and the Perkins 50%. The board of directors were the officers of defendant corporation. R. E Perkins was general manager of defendant. Gerald Lacy Johnson, husband of plaintiff, was the used car sales manager, and by the terms of his contract of employment with defendant he was paid a salary, plus commissions, and he and his wife were to be provided by defendant with an automobile. During his several years of employment as used car sales manager, defendant from time to time furnished automobiles for him and his wife to use.

On 28 December 1956 Gerald Lacy Johnson left Asheville with salesmen of the defendant to see the 'Gator Bowl game in Jacksonville, Florida, as a result of winning a contest put on by defendant. Before leaving he asked Harry Baxley, a salesman of defendant, to take out an automobile of defendant for his wife's use during his absence. On 27 December 1956 Baxley carried a 1950 grey Buick automobile, owned by defendant, to plaintiff's home in Asheville. Defendant received this automobile in a trade the day before. When Baxley delivered the automobile to plaintiff, he testified this conversation took place: 'When I delivered the car to Mrs. Johnson I told her I had had a fade-away at the light, that I could stop the car at reasonable speed. I advised her to do the same, drive it at a reasonable speed, but bring the car to me as soon as possible so brakes could be put on it; Mrs. Johnson said she had to come to town in the morning and would come by then; I told her I thought she could drive it.'

This is plaintiff's testimony as to the conversation between Baxley and herself: 'When Mr. Baxley brought me the car I had a conversation with him; he said when he got to the Grace Methodist Church he discovered that the brakes were worse and if I would bring it in and have it adjusted at my earliest convenience and I asked him if it would be all right to drive it and he said yes.'

When Baxley returned after delivering the automobile to plaintiff, he told plaintiff's husband, 'the brake pedal had to be pumped and only had an inch to an inch and a half brake pedal on it when we went out. ' When plaintiff's husband returned home that night, he saw the automobile in the yard, and asked her did Baxley say anything about the brakes. Plaintiff replied, 'Mr. Baxley told me they (the brakes) needed adjusting.'

On the morning following delivery of the automobile, plaintiff drove it to her sister's, Lona W. Thompson, home at 14 Club View Road about four or five miles from her home. She had no difficulty with the brakes on the trip, except she had to pump them a little. Upon arrival she told her sister about the brakes.

On cross-examination plaintiff testified as to driving the automobile the morning after its delivery to her as follows: 'The next morning around ten o'clock I got into that automobile with my little boy and I came into Asheville from my home by Highway 70 through the tunnel; I am not good on distances but I would say it is about three miles from my home to the tunnel; I came down the long hill in front of the Highway Patrol Office just the other side of Haw Creek and I came down the hill from the Haw Creek light to the Kenilworth Road intersections; at that time the brakes were working perfectly because I had to stop at both stoplights; I did notice some freedom in the pedal; when driving into town that morning, there was about an inch and a half or halfway, of pedal off the floor; that is considerably less than normal pedal. I am accustomed to driving cars with this type brake; the thing I am not accustomed to driving is power brakes; these brakes are the kind I drive pretty regularly.'

Plaintiff spent the night at her sister's home. That night when W. A. W. Thompson, president of defendant, came home, he, his wife and plaintiff had a conversation in respect to the brakes of the 1950 grey Buick automobile. Mr. Thompson said they should not drive the automobile, and for his wife to take it back the next day. The next morning it began to snow, and was snowing a little when the collision occurred, but the ground was not white. After Mr. Thompson had left home, plaintiff and her sister, Lona W. Thompson, decided to go and get a sled for plaintiff's little boy and Mrs. Thompson's little girl. Lona W. Thompson said, 'first we have got to get the brakes adjusted,' and they started to defendant's place of business. Lona W. Thompson was driving. Plaintiff was in the front seat, with her little niece sitting on her lap, and her little boy in the back seat.

In coming down an inclined driveway from the Thompson home into Club View Road, 'the brakes worked perfectly.' After the automobile entered Club View Road, there is a pretty steep grade going up a hill, and it is about 100 yards from the crest of the hill to Country Club Road. Plaintiff testified on cross-examination: 'I don't know if my sister was going more than 35 miles per hour as she crested the top of the hill. ' When the automobile reached the crest of the hill, plaintiff pushed on the foot brake, and it went all the way to the floor. Her sister said: 'Betty, we don't have any brakes. ' She was trying to find with her left hand the emergency brake. When the automobile was travelling down the hill, and had reached a speed of about 50 miles an hour, it swerved or ran completely off the road, and crashed into a tree near the intersection of Club View Road and Country Club Road.

In the collision plaintiff was seriously injured. It would seem from the evidence before us that Lona W. Thompson was killed in the crash.

Attorneys for plaintiff and defendant stipulated in open court that at the time of the accident the defendant was the owner of the 1950 Buick automobile in which plaintiff was riding.

Plaintiff in her complaint avers inter alia that Lona W. Thompson, as an agent, servant and employee of defendant, was negligently operating the Buick automobile within the scope of her employment and with defendant's consent, and alleged specific acts of negligence. Plaintiff further alleges that defendant was negligent in failing to repair the automobile before permitting its use, in failing to exercise reasonable care in furnishing an automobile for the use of Lona W. Thompson, and in other things, and that such negligence proximately caused plaintiff's injuries. Defendant pleads as defenses contributory negligence of plaintiff, and that if defendant were negligent, the negligence of Lona W. Thompson in eight specified acts in the operation of the automobile 'was active and insulating negligence, which was the sole direct proximate cause of the plaintiff's injury and damage, if any she sustained, and which said negligence as will be more fully hereinafter set forth insulated any and all conduct of this defendant, and which said insulating negligence is hereby pleaded in bar of this action against this defendant. ' Defendant alleges inter alia that Lona W. Thompson negligently operated the automobile with defective brakes under the conditions then and there existing, and is advised, informed and believes that the negligent acts and omissions of Lona W. Thompson were the proximate cause of the accident in which plaintiff was injured, and 'which insulated this action against this defendant.'

The defendant having stipulated that it was the owner of the 1950 Buick automobile at the time of the accident, G.S. §...