McKinney v. Patterson

• Decision Date: 07 November 1917
• Docket Number: 369.
• Citation: 93 S.E. 967,174 N.C. 483
• Parties: MCKINNEY v. PATTERSON ET AL.
• Court: North Carolina Supreme Court

93 S.E. 967

174 N.C. 483

MCKINNEY v. PATTERSON ET AL.

No. 369.

Supreme Court of North Carolina

November 7, 1917

Appeal from Superior Court, Forsyth County; Stacy, Judge.

Action by Robah McKinney, by his next friend, J. A. McKinney against F. F. Patterson and another. Judgment against defendant named, and plaintiff appeals. No error.

Party cannot object after time for submitting issues has passed and certainly not after verdict, that issue, for which he made no request, was not submitted.

The plaintiff alleges that he was run over and seriously injured by an automobile driven by the defendant Francis F. Patterson, and owned by his uncle and codefendant, John L. Patterson, and that his injuries were caused by the negligence of the defendant Francis F Patterson, in driving the automobile on Cherry street, in the city of Winston, at an excessive and dangerous speed, and in a reckless manner. The court charged, in part, as follows:

"The plaintiff has offered evidence, as I said a moment ago, tending to show that the defendant John L. Patterson knew that F. F. Patterson was using the car, or that he had reason to know that he had driven it on previous occasions, and that he had driven it on previous occasions for the defendant John L. Patterson, that is, in carrying out the business for which John L. Patterson had the car in Winston, then he did it with John L. Patterson's approval, and then he would be a quasi agent or a quasi servant for that purpose, and so plaintiff contends and argues to you that at the time in question the defendant Francis F. Patterson was the agent or servant of John L. Patterson, and was driving the car of John L. Patterson, and that he was also driving it in furtherance of the purposes for which the car was left in Winston; that is, the plaintiff says it was left here for the use of the defendant John L. Patterson's wife and his mother, and for their family use, and that the defendant Francis F. Patterson was at that time practically a member of the family, and that he was using it for his pleasure and for the pleasure of the family. * * * The defendant John L. Patterson takes issue with the plaintiff on the question as to whether he is liable in this case, and has offered evidence tending to show that, notwithstanding the fact he was the owner of the car, he left it here for the use of his wife and his mother, and not for the use of Francis F. Patterson; that he does know that Francis F. Patterson used the car probably on one or more occasions, but that the defendant F. F. Patterson had no permission or authority from him to use the car, and that at the time the injury occurred he was not using the car in the employment of the defendant John L. Patterson, nor was he about John L. Patterson's business, or in the scope of any employment which John L. Patterson may have intended, or given the defendant Francis F. Patterson. * * * If you find, gentlemen, as a fact from this evidence that F. F. Patterson was at the time engaged in running the car to Mrs. Patterson's home, after he had been out driving some of his friends, and that his errand on that day was simply for his own pleasure, and not for the purpose or in the employment of which the defendant left his car in Winston-Salem, then the defendant John L. Patterson is not liable in this case, and it would be your duty to answer the second issue 'No.' * * * The plaintiff says, gentlemen, that you ought to be satisfied and find that F. F. Patterson was virtually a member of Mrs. M. F. Patterson's family; that the defendant John L. Patterson knew the fact; that he left the car here for their use, and that included the use of F. F. Patterson. * * * It is a question of fact, gentlemen, under this evidence for you. If you find as a fact, from this evidence, that F. F. Patterson was an agent or servant of John L. Patterson, and at the time of the injury was in the furtherance of John L. Patterson's business, or in the scope of his employment, it would be your duty to answer the second issue 'Yes.' If you do not so find, gentlemen, it would be your duty to answer it 'No.' "

The jury returned the following verdict:

"(1) Was the plaintiff injured by the negligence of the defendant Francis F. Patterson, as alleged in the complaint? Answer: Yes.

(2) Was the plaintiff injured by the negligence of the defendant John L. Patterson, as alleged in the complaint? Answer: No.

(3) Did the plaintiff by his own negligence contribute to his injury, as alleged in the complaint? Answer: No.

(4) What damages, if any, is the plaintiff entitled to recover? Answer: $3,500."

Plaintiff moved, upon the verdict, for a personal execution against the defendant Francis F. Patterson if the execution against his property is returned unsatisfied. This the court refused, and plaintiff excepted. In this connection, the following statement appears in the record:

"While the court was determining the issues, one of the counsel for the plaintiff asked the court to submit a specific issue as to whether the injury to the plaintiff was done willfully or not by the defendant F. F. Patterson. Whereupon the other counsel for the plaintiff told the court that the plaintiff did not desire to have such an issue, in which both counsel acquiesced; and thereupon the issues, as suggested by the court, and as appear in the record, were submitted."

Judgment upon the verdict against Francis F. Patterson, and plaintiff appealed.

W. J. Swaim, Benbow, Hall & Benbow, and Fred M. Parrish, all of Winston-Salem, for appellant.

Lindsay Patterson, of Winston-Salem, for appellee.

WALKER, J. (after stating the facts as above).

The court properly denied the plaintiff's motion for an execution against the body of the defendant Francis F. Patterson. In order that such an execution may be issued after the plaintiff has exhausted his remedy against the property of the defendant, a distinct and separate issue as to the essential fact upon which the right to the execution is based must be submitted to the jury, so as to have an affirmative finding as to the existence of the fact. We so held in Ledford v. Emerson, 143 N.C. 527, 55 S.E. 969, 10 L. R. A. (N. S.) 362. In that case, which involved the charge of fraud, not at all dissimilar in principle from our case, we said:

"We adopt the view taken by the court in Davis v. Robinson, 10 Cal. 411, where Judge Field (since a Justice of the United States Supreme Court) said: 'There is no doubt as to the correctness of the position that the execution must be warranted by the judgment. It rests upon and must follow the judgment; if it exceeds the judgment, it has no validity. To authorize, therefore, an arrest on execution, the fraud must be stated in the judgment, for the writ issues, in the language of the statute, in the "enforcement" of the "judgment." Nor do we entertain any doubt that the question of fraud must be submitted to the jury, except so far as may be necessary to authorize the arrest pending the action. To justify execution against the person, which may be followed by imprisonment, an issue must be framed, and be determined like issues of fact raised upon the pleadings. Fraud is an offense involving moral turpitude, and is followed by imprisonment not merely as a means of enforcing payment, but also as a punishment, and it would indeed be strange if on a mere question of indebtedness the right to a trial by jury should be held sacred and inviolate, and yet such trial be denied upon a question involving a possible loss of character and liberty. We should hesitate long before we held that this latter question could be tried upon affidavits where the accuser is also a witness, where the affiants are not present, and no cross-examination of witnesses is allowed. We are aware of decisions in other states holding a different view, but we do not find sufficient reasons advanced in them to induce us to deny what we cannot but regard as the clear right of the party accused. * * * The arrest upon affidavit is only intended to secure the presence of the defendant until final judgment; and in order to detain and imprison his person afterwards, the fraud must be alleged in the complaint, be passed upon by the jury, and be stated in the judgment. * * * By requiring the charges to be stated in the complaint, the rights of the defendant will be fully guarded. He can then meet the charges, and have a fair opportunity of defending himself by a trial before a jury.' "

Commenting upon that case, in which the opinion of the court was written by a very able and learned judge, it was said by this court:

"There was no appropriate issue submitted in this case upon the alleged fraudulent conduct of the defendant, and we cannot hold that the general issue submitted embraced the matters relating to it. As soon as the money was paid by the purchaser of the options to

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