Jyachosky v. Wensil

Decision Date05 May 1954
Docket NumberNo. 534,534
Citation81 S.E.2d 644,240 N.C. 217
CourtNorth Carolina Supreme Court
PartiesJYACHOSKY, v. WENSIL et al.

Taliaferro, Grier, Parker & Poe, Charlotte, for plaintiff-appellee.

Coble Funderburk, Monroe, for defendant Garmon, appellant.

Jones & Small, Charlotte, Bernard W. Cruse, Concord, for defendant Wensil, appellant.

BOBBITT, Justice.

The assignments of error upon which appellants place great stress challenge the sufficiency of the evidence to warrant submission to the jury of the first and third issues. These assignments are directed to the refusal of the court below to sustain their motions for judgment of nonsuit (AE 11, 12, 13 and 14) and to its refusal to direct a verdict in their favor on the first and third issues. (AE 15, 16).

Plaintiff's case rests principally upon evidence as to appearance of the truck involved in causing her injury; evidence as to the appearance of the truck in possession of Garmon at the service station in Matthews when he was arrested and thereafter parked at the Police Station in Monroe; and evidence from two witnesses who saw the truck at the scene of injury and who identified the truck at the Police Station in Monroe as being the same truck. It was sufficient for submission to the jury on the question as to whether the truck operated by Garmon was the truck involved in causing plaintiff's injury. In this connection, we note that the rule as to the sufficiency of circumstantial evidence in criminal prosecution differs from that applicable in civil actions. National Shirt and Hat Shops v. American Motorists Ins. Co., 234 N.C. 698, 68 S.E.2d 824, and cases cited.

While defendants assign as error (AE 1, 4) the admission of the quoted testimony of Jyachosky and Garland, they cite no authority in support of this contention. The testimony is clearly competent. Its credibility was for the jury. We have considered all the evidence, testimony and exhibits, carefully. It would serve no useful purpose to set forth in detail the testimony of Jyachosky and Garland or of the other witnesses. Analysis thereof only emphasizes the conflicts and contradictions and brings us to the conclusion that decision on the crucial issues was dependent upon determination of the credibility of the witnesses. The testimony of Jyachosky and Garland, considered with the testimony of Patrolmen Ward and Pierce, fully justified submission of the first issue.

Defendant Wensil further challenges the sufficiency of the evidence to warrant submission to the jury on the third issue on the ground that defendant Garmon, in any event, was on a personal mission and was not operating the ywensil truck within the scope of his employment and in furtherance of his employer's business.

It is true now, as it was when Carter v. Thurston Motor Lines, 227 N.C. 193, 41 S.E.2d 586, was decided, that plaintiff was required to allege and establish that the operator of the truck was an agent or employee of the owner thereof and that this relationship existed at the time and in respect of the very transaction out of which injury arose before the doctrine respondeat superior applies. As to necessity for such pleading: Parker v. Underwood, 239 N.C. 308, 79 S.E.2d 765; Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767.

In Carter v. Thurston Motor Lines, supra, where plaintiff was nonsuited, Barnhill, J. (now C. J.), after reviewing many decisions, pointed out that the well established rule in North Carolina required a plaintiff, after showing ownership of the truck and the employment of the operator by such owner, to go further and offer positive evidence that the operator was about his employer's business at the time and in respect of the very transaction out of which the injury arose. This rule imposed a very difficult and often insurmountable burden on an injured plaintiff. Cases cited by defendants are in accord with Carter v. Thurston Motor Lines, supra, all arising prior to G.S. § 20-71.1.

Thereafter, the General Assembly enacted Ch. 494, Session Laws of 1951, entitled, 'An Act To Provide New Rules Of Evidence In Regard To The Agency Of The Operator Of A Motor Vehicle Involved In Any Accident. ' This statute, now codified as G.S. § 20-71.1, did not change the basic rule as to liability. It did establish a new rule of evidence, changing radically the requirements as to what the injured plaintiff must show in evidence in order to have his case passed on by the jury. Hartley v. Smith, supra; Parker v. Underwood, supra.

Under G.S. § 20-71.1, all now required for submission of the issue to the jury, is that the injured party show ownership of the motor vehicle, which may be done prima facie by proof that the motor vehicle was registered in the name of the person sought to be charged, and if ownership is established this constitutes prima facie evidence 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' '. Hartley v. Smith, supra [239 N.C. 170, 79 S.E.2d 771].

A candid appraisal prompts the observation that in passing from the rule recognized in Carter v. Thurston Motor Lines, supra, to the rule prescribed by G.S. § 20-71.1, the pendulum seems to have swung from one extreme to the other. For under G.S. § 20-71.1, proof of ownership alone takes the case to the jury. It is not required that positive evidence be offered that the operator was then and there acting as employee or agent within the scope of his employment or agency. Moreover, it is not required that positive evidence be offered that the operator was an employee or agent of the owner.

Evidence offered by defendants tends to show that defendant Wensil was the owner of the 1940 Dodge pick-up truck in defendant Garmon's possession in Matthews on the occasion of his arrest. Plaintiff's evidence tends to show that N. C. license plate attached thereto bore license number 841-730. Certificate of registration, offered by plaintiff, tends to show that defendant Wensil was the owner in 1951 of the 1940 Dodge pick-up for which this license was issued. By virtue of G.S. § 20-71.1, proof of such registration was competent and constituted prima facie evidence of ownership. Defendants' assignment of error (AE 10) to its admission in evidence is without merit. Ownership, if established, under G.S. § 20-71.1, was prima facie evidence that the truck was being operated by defendant Garmon as employee of defendant Wensil within the scope of his employment.

The trial judge instructed the jury, in relation to the third issue, that if plaintiff satisfied the jury by the greater weight of the evidence that defendant Wensil was the owner of the truck involved in causing injury to plaintiff, then the jury would consider the question of agency; and upon consideration thereof, the burden of proof rested upon plaintiff to satisfy the jury by the greater weight of the evidence that the operator of defendant Wensil's truck was then and there operating it as employee or agent of defendant Wensil and within the scope of his employment or agency.

When plaintiff has offered evidence of facts sufficient to give rise to a prima facie case, the ultimate issue is for the jury; and when the defendant offers evidence, which, if accepted, would establish that he is not legally responsible, the credibility of such evidence is for the jury. The significance of a prima facie case has been often discussed and authorities cited. Millers Mutual Ins. Ass'n v. Atkinson Motors, Inc., N.C., 81 S.E.2d 416. The trial judge correctly stated the law in relation to the significance of a prima facie case; and assignments of error (AE 18, 19, 20) are without merit.

True, the only positive evidence as to the relationship between defendant Garmon and defendant Wensil was offered by the defendants. While to the effect that defendant Garmon was an employee of defendant Wensil in connection with his business, defendants' evidence tended to show explicitly that on 16 June, 1951, on the highway between Charlotte and Monroe, defendant Garmon was on a purely personal mission wholly unrelated to his employer's business. In Travis v. Duckworth, 237 N.C. 471, 75 S.E.2d 309, it was held that proof of ownership of the tractortrailer was prima facie evidence that the operator was then and there acting as agent and within the scope of such agency; that motion of nonsuit was properly overruled, the issue being for the jury; but a new trial was ordered because of the failure of the trial judge to give a peremptory instruction to the effect that it would answer the issue of agency in the negative if it found the facts to be as the defendants' evidence tended to show, namely, that the operator was on a purely personal mission at the time of the collision. Correctly applying the law as stated in Travis v. Duckworth supra, the trial judge instructed the jury as follows:

'Now, the Court charges you, as a matter of law, that if you believe the evidence of the defendants that he was sent from Kinston to Concord on business for the defendant Wensil, and that, having transacted the defendant Wensil's business, he was on his way back to Kinston, and had reached the town of Monroe, and that...

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    ...and that this relationship existed at the time and in respect of the very transaction out of which the injury arose. Jyachosky v. Wensil, 240 N.C. 217, 81 S.E.2d 644. As to the necessity for such pleading: Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767; Parker v. Underwood, 239 N.C. 308, 79 ......
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