Osborne v. Gilreath
| Decision Date | 23 March 1955 |
| Docket Number | No. 239,239 |
| Citation | 86 S.E.2d 462,241 N.C. 685 |
| Court | North Carolina Supreme Court |
| Parties | Jesse A. OSBORNE, Administrator of the Estate of Dorothy Jean Osborne v. Charles GILREATH. |
W. H. McElwee, Jr. and Ralph Davis, No. Wilkesboro, for plaintiff, appellant.
Larry S. Moore, Trivette, Holshouser & Mitchell and Robert M. Gambill, No. Wilkesboro, for defendant, appellee.
In his complaint plaintiff first alleges that the defendant was operating the automobile at the time it overturned. Further on he alleges that at the time it was being operated by the defendant, or by some one under his direction and control. And further on he alleges that the defendant was either operating the automobile or controlling its operation.
All of plaintiff's evidence as to the operator of the automobile at the time it overturned is the statement of the defendant to the State Highway Patrolman Arledge, 'that it was all his fault * * * the deceased girl was driving the automobile at the time of the fatal collision.'
It seems to us, considering the evidence in the light most favorable to the plaintiff, that the evidence shows that plaintiff's intestate was driving the automobile when it overturned, and that plaintiff's repeated statements it was all his fault was an expression of his distress of conscience in permitting an inexperienced 15-year old girl to drive his automobile and to turn it over causing her tragic and untimely death. The statement of defendant here is a far cry from the statement in Wells v. Burton Lines, Inc. (Stanley v. Burton Lines, Inc.), 228 N.C. 422, 45 S.E.2d 569, in which the appellant said, without qualification, that the collision was his fault. See also the remorseful statement of the defendant in an automobile collision in Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383. While the plaintiff has allegation that the defendant was driving the automobile at the time, he lacks proof. While there is allegation that the defendant interfered with the operation of the automobile, there is no proof of such allegation.
Plaintiff further alleges that the automobile at the time was being operated by the defendant, or by some one under his direction and control, and contends in his brief, that if either plaintiff's intestate or Clint Johnson or Margaret Hayes was operating the automobile, he is entitled to go to the jury by virtue of G.S. § 20-71.1, entitled, 'Registration evidence of ownership; ownership evidence of defendant's responsibility for conduct of operation.'
G.S. § 20-71.1 establishes a rule of evidence, but does not relieve a plaintiff from alleging and proving negligence and agency. Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767; Parker v. Underwood, 239 N.C. 308, 79 S.E.2d 765. In Parker v. Underwood, plaintiff alleged that the driver of defendant's vehicle was his son and at the time was operating his father's automobile "with the express consent, knowledge and authority'' of his father. The provisions of G.S. § 20-71.1 could not save the complaint when a demurrer was filed. In Jyachosky v. Wensil, 240 N.C. 217, 81 S.E.2d 644, plaintiff alleged that the automobile owned by defendant Wensil was operated by defendant Garmon, who, upon the occasion, was an employee of defendant Wensil, and then and there acting within the scope of his employment.
Plaintiff in his complaint alleged that his intestate met her death as a proximate result of defendant's negligence. And in his amended complaint he alleges that his intestate's death was caused by defendant's negligence, and set forth five specifications of defendant's negligence. He has alleged no negligence against any other person.
By reason of plaintiff's total failure to allege agency and negligence of his intestate or Clint Johnson or Margaret Hayes, he cannot invoke the aid of G.S. § 20-71.1.
Plaintiff cannot call to his aid the principle that a person, who by his independent and wrongful breach of duty entrusts his automobile to one he knows or should know is likely to cause injury by reason of incompetency, carelessness or recklessness, and injury to a third person results proximately from such incompetency, carelessness or recklessness, is liable in damages, because he has no allegations in his complaint and amended complaint to invoke the application of this principle of law. Roberts v. Hill, 240 N.C. 373, 82 S.E.2d 373; Heath v. Kirkman, 240 N.C. 303, 82 S.E.2d 104; McIlroy v. Akers Motor Lines, 229 N.C. 509, 50 S.E.2d 530; Bogen v. Bogen, 220 N.C. 648, 18 S.E.2d 162; Taylor v. Caudle, 210 N.C. 60, ...
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Whiteside v. McCarson, 30
...for such pleading: Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767; Parker v. Underwood, 239 N.C. 308, 79 S.E.2d 765; Osborne v. Gilreath, 241 N.C. 685, 86 S.E.2d 462. G.S. § 20-71.1 established a new rule of evidence. In passing from the rule stated in Carter v. Thurston Motor Lines, 227 N.C......
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Belmany v. Overton, 765
...the owner of an automobile where the plaintiff has failed to allege the operator of the car was the agent of the owner. Osborne v. Gilreath, 241 N.C. 685, 86 S.E.2d 462; Lynn v. Clark, 252 N.C. 289, 113 S.E.2d 427; Cohee v. Sligh, 259 N.C. 248, 130 S.E.2d 310; Beasley v. Williams, 260 N.E. ......
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Dupree v. Batts, 8
...400, 154 S.E.2d 538; Taylor v. Parks, 254 N.C. 266, 118 S.E.2d 779; Whiteside v. McCarson, 250 N.C. 673, 110 S.E.2d 295; Osborne v. Gilreath, 241 N.C. 685, 86 S.E.2d 462; Hartley v. Smith, 239 N.C. 170, 79 S.E.2d Neither Perkins v. Cook, 272 N.C. 477, 158 S.E.2d 584, nor Bowen v. Gardner, 2......
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Meachum v. Faw, 9220SC1080
...nor has one held that only a third party may recover under the theory of negligent entrustment. The case of Osborne v. Gilreath, 241 N.C. 685, 86 S.E.2d 462 (1955), although not directly addressing the question, leaves open the possibility that one who is not a third party might recover und......