Templeton v. Kelley

• Court: North Carolina Supreme Court
• Citation: Templeton v. Kelley, 217 N.C. 164, 7 S.E.2d 380 (N.C. 1940)
• Decision Date: 28 February 1940
• Docket Number: 524.
• Parties: TEMPLETON v. KELLEY et al.

7 S.E.2d 380

217 N.C. 164

TEMPLETON v. KELLEY et al.

No. 524.

Supreme Court of North Carolina

February 28, 1940

H L. Taylor, of Charlotte, for defendants appellants.

Uhlman S. Alexander, of Charlotte, for plaintiff appellee.

BARNHILL Justice.

In the original opinion it is stated that the portion of the charge there quoted is erroneous (1) in that it omits the element of proximate cause and, (2) in that it required an affirmative answer to the issue of negligence as against the alleged employer if the jury should find negligence on the part of the alleged employee. It was further held that the charge of the court on the law controlling the right of pedestrians to cross a public street at a point other than at the intersection, sec. 135(c), ch. 407, P.L.1937, was incorrect.

The petition to rehear is predicated upon the assertion (1) that this Court overlooked instructions of the trial Judge on proximate cause immediately following the quoted portion of the charge, as well as in other sections thereof, and that (2) the error, if any, as to the liability of the alleged employer is cured by subsequent instructions thereon. The opinion in respect to the error in the charge as to the right of the pedestrian to cross the street is not challenged.

From a rereading of the charge it is made to appear clearly that there was an inadvertence in the original opinion in respect to the failure of the Court below to charge the jury on the element of proximate cause in relation to the first issue. We are now of the opinion that this phase of the law was adequately presented to the jury.

The fact remains, however, that the portion of the charge discussed was defective in that it required the jury, upon a finding of negligence on the part of the alleged employee, to answer the issue of negligence in the affirmative as against the alleged employer. But the petitioner asserts and contends that this error was later corrected by the court.

After the trial Judge had completed his charge, addressing counsel he inquired: "Now is there any particular matter gentlemen, that the Court has overlooked?" After a conference with counsel for plaintiff he further instructed the jury as follows: "Now, upon this first issue, gentlemen, going back to that temporarily, you will notice the wording of the issue: 'Was the plaintiff injured by the negligence of the defendant?' As the court originally instructed you, that has no reference to the defendant Ledbetter. He is, so to speak, a nominal party in this suit. It does refer, however, to Claude Kelley and to the Beaty Service Company."

Then, after briefly stating the contentions of the parties as to whether Kelley was an employee of the Beaty Service Company, the Court proceeded further:

"Now, remembering the rules that the Court has given you, if you find that the defendant Kelley was responsible for this accident, and that the plaintiff is entitled to recover of him, then the Court further charges you, the burden being upon the plaintiff, if you find that Mr. Alexander took his car down to the Beaty Service Company and turned it over to the Beaty Service Company for the purpose of them using it as a taxi, and they in turn made some arrangement with the defendant Kelley, retaining over Kelley the right to hire him and to fire him at their own motion, and, further, that they retained the right to fix the amount of charge that he would make; that they required the said Kelley to report to them any accidents or injuries that might occur, and that they required him to come here to get his gas and oil and his repairs, then the Court charges you that he was a servant of the Service Company, and that you will answer the issue Yes; but if you fail to so find, the burden being upon the plaintiff, then you will answer the issue 'Yes, as to the defendant Kelley.' Is that clear, gentlemen?

"And I forgot to say, gentlemen, that you further find that they put up the deposit as required by the statute covering this particular car. Take the case, gentlemen."

We were cognizant of this later portion of the charge when the original opinion was written. We simply refrained, perhaps unwisely, from extending the discussion to include the principle...