Riddle v. Whisnant

• Decision Date: 08 October 1941
• Docket Number: 165.
• Parties: RIDDLE v. WHISNANT et al.
• Court: North Carolina Supreme Court

16 S.E.2d 698

220 N.C. 131

RIDDLE v. WHISNANT et al.

No. 165.

Supreme Court of North Carolina

October 8, 1941

This is an action brought by plaintiff against the defendants for damages for injuries sustained by the plaintiff while riding as a passenger in an automobile, operated by one E. C Riddle, which collided with a 1936 Plymouth Tudor Sedan, on December 15, 1940, while being operated by the defendant Wilburn Whisnant, whom the plaintiff alleges was acting as agent and servant of his co-defendant, J. E. Guy.

The defendant, Wilburn Whisnant, filed no answer in the action. The defendant, J. E. Guy, filed an answer and denied the allegations of the complaint. "That at said time and place the defendant Wilburn Whisnant was operating the said Plymouth automobile as agent and servant of his co-defendant J. E. Guy."

Wilburn Whisnant, a defendant in this action and a witness for plaintiff, testified, in part: "I began working for Mr Guy on December 5th, 1940, as a mechanic and to help sell anything there was to sell. I was paid a straight salary of $10.00 per week. I worked there in the shop part of the time. There was no agreement what I was to do, whether I was to sell cars, or mechanic or what, I never sold a car. I would work around there from eight o'clock in the morning to five in the afternoon, I would say, something like that. I live about four miles from Spruce Pine, at Estatoe. Up until Friday, December 13th, I would go back and forward to work with John Miller. Then John Miller quit working there on Friday, the 13th, and I asked Mr. Pierce if I could have a car to go to my home and back the next morning. I had a conversation with Mr. Guy, when I started home Saturday. He asked me which car I was going to drive, he asked me if I was going to use that car on Sunday and I told him if I was going on any particular business of my own I could get another car. He did not tell me he didn't want me to drive that car. He did not ask me if I was going to drive it anywhere on Sunday. He asked me if I was going anywhere on Sunday. I told him not that I knew of, and if I was going anywhere on any other business, I could get another man's car. I told him if I was going anywhere on particular business, I could get another car. I told him I wasn't going to use the car and if I went anywhere on particular business I could get another car. I did not tell him anything about going to Micaville and I didn't tell him anything about going anywhere with the car on Sunday. At that time, Miss Pearl Wilson was staying with us and she lived with Mr. Zeb Thomas at Micaville. My wife and I did not take Pearl Wilson to Zeb Thomas' house at Micaville on Saturday night. She had gone on Friday on the bus. Mrs. Zeb Thomas is my wife's aunt, I think. I and my wife went to her aunt's house Zeb Thomas', Saturday night. Miss Faye Wilson was there at that time. She volunteered to come home with us, and came home with us Saturday night. She is no kin to my wife. I did not see Fred Thomas at all that night. I spent the evening at Zeb Thomas' house from around 7:30 to around 9:00 o'clock. On Sunday, I and my wife and family went back to Zeb Thomas' at Micaville, and we took Faye Wilson back with us. *** On Sunday afternoon, I went to see Fred Thomas and my wife and two children went along with me. Like I told you a while ago, there was no parking place, and I went up to Zeb Thomas' house. It was where I always parked when I used to live there. Faye Wilson was living with her mother upstairs in the same house with Zeb Thomas. I took my wife and two children to Zeb Thomas' house, they went along with me. We got there around two to two-thirty o'clock. *** Fred Thomas came up to Zeb Thomas' house while my family and I were there, and he and I got in this car and went from Micaville up to the Jig Mine, which was a little better than five miles from Micaville. That Jig Mine was between Micaville and Estatoe, my home. Fred Thomas and I went to the Jig Mine and I left Fred Thomas at the Jig Mine. That was about five miles East of Micaville. I then went back to Micaville to get my family. Fred Thomas was not with me when I went back to Micaville. I got my wife and children and Pearl Wilson and it was about dusk then. I was going back to see Fred Thomas. I wanted to see him before I went home. *** I went back and got my family in Micaville and then was going East when this accident happened. This accident happened before I got back to the point where I had left Fred Thomas. I had left Fred Thomas on this main highway from Micaville to Spruce Pine and the accident happened about a mile and a half from Micaville. I had gone back five miles to get my family and was about a mile and a half back on the road when the accident happened East of Micaville. In going from Micaville to Estatoe to my home, I go right by the place I had left Fred Thomas. I did not see Fred Thomas any more that day."

At the close of plaintiff's evidence, the defendant, J. E. Guy moved for judgment as in case of nonsuit, which motion was allowed, and judgment was thereupon rendered by the Court dismissing the action as of nonsuit. Upon the dismissal of the action, as to the defendant, J. E. Guy, the plaintiff took a voluntary nonsuit as to the defendant, Wilburn Whisnant,...