Torres v. Smith, 114
| Decision Date | 01 March 1967 |
| Docket Number | No. 114,114 |
| Citation | 269 N.C. 546,153 S.E.2d 129 |
| Court | North Carolina Supreme Court |
| Parties | Juan F. TORRES (Louisa M. Torres) v. Michael Zeb SMITH, a Minor, by his Guardian Ad Litem, Earl J. Fowler, andElizabeth A. Lowry. |
Meekins & Roberts, by Landon Roberts, Asheville, for defendant appellant.
Loftin & Loftin, by E. L. Loftin, Asheville, for plaintiff appellee.
The appellant, Mrs. Lowry, challenges the verdicts and judgments against her upon these grounds: (1) all the evidence is to the effect that co-defendant Smith was operating the Ford automobile without the knowledge, consent or permission and against the wishes of the appellant; (2) and if a showing that she was the owner makes out a prima facie case under G.S. § 20--71.1, nevertheless all the evidence being to the contrary, the trial judge should have entered judgment of nonsuit or should have given the jury a peremptory instruction to answer the issues 'NO'; (3) if the Court's charge amounts to a peremptory instruction, the same is so restricted as to dilute, minimize and destroy its full benefit.
The critical issues in the cases are not unlike those involved in Whitesides v. McCarson, 250 N.C. 673, 110 S.E.2d 295. The record fails to disclose evidentiary facts sufficient to make out a case of liability against the owner of the vehicle under the doctrine Respondeat superior. But for G.S. § 20--71.1, compulsory nonsuit for lack of evidence would be required. Upon a showing of ownership, the artificial force of the prima facie rule under the above Section seems to permit a finding of agency. Haynes Electric Corporation v. Justice Aero Company, 263 N.C. 437, 139 S.E.2d 682. The plaintiffs' evidence does not negate agency. Hence, the statute is sufficient to repel the motion for nonsuit. Dellinger v. Bridges, 259 N.C. 90, 130 S.E.2d 19; Millers Mutual Insurance Ass'n of Illinois v. Atkinson Motors, 240 N.C. 183, 81 S.E.2d 416.
The evidence disclosed that the appellant did not know defendant Smith. She did not consent for him to drive her vehicle. She did not authorize her minor son or anyone else to consent for her. 'Ordinarily, one permittee does not have authority to select another permittee without specific authorization * * *', Bailey v. General Insurance Company, 265 N.C. 675, 144 S.E.2d 898; 5 A.L.R.2d 566; 160 A.L.R. 1195, et seq. The evidence is to the effect the owner gave directions to her son to take the vehicle to the Atlantic Station for the repairs she had discussed with owner Jones. The son obeyed the instructions, took the vehicle to the garage for the repairs; Mr. Jones was not present and Smith said that Jones was in town and that he, Smith, had helped put in the clutch and knew how to repair it.
Smith stated he had only a permit and not an operator's license but that Bailey, his friend, had a driver's license and would help him return the Ford to the garage. Thereafter, the owner's son, with his sister, co-defendant Smith and Smith's friend Bailey in the vehicle, drove to the Holiday Inn. Thereafter, Smith took over and was on his way back to the garage when the accident occurred. Smith was operating the vehicle without authority of the owner who had not authorized her son or anyone else to turn her vehicle over to Smith, an unlicensed driver....
To continue reading
Request your trial
-
Belmany v. Overton, 765
...Passmore v. Smith, 266 N.C. 717, 719, 147 S.E.2d 238, 240; also, see Duckworth v. Metcalf, 268 N.C. 340, 150 S.E.2d 485; Torres v. Smith, 269 N.C. 546, 153 S.E.2d 129. Under the decisions cited in the preceding paragraph, defendant, without request therefor, was entitled to an instruction s......
-
Brown v. Nesbitt
...if they found the facts to be as the evidence on behalf of Nesbitt tended to show. See Whiteside v. McCarson, supra, and Torres v. Smith, 269 N.C. 546, 153 S.E.2d 129. For error in the court's instruction relating to the second issue, and mindful of the dubious purport of certain of the evi......
-
Scallon v. Hooper
...of agency tending to show that the driver was on a purely personal mission or errand at the time of the collision. Torres v. Smith, 269 N.C. 546, 153 S.E.2d 129 (1967); Passmore v. Smith, 266 N.C. 717, 147 S.E.2d 238 (1966); Nolan v. Boulware, 21 N.C.App. 347, 204 S.E.2d 701, cert. den., 28......
-
Nationwide Mut. Ins. Co. v. Aetna Cas. & Sur. Co., 67SC5
...was operating such car at the time of the accident without the knowledge or permission of the insured owner. See, Torres v. Smith, 269 N.C. 546, 153 S.E.2d 129 (1967); Bailey v. General Insurance Company of America, 265 N.C. 675, 144 S.E.2d 898 (1965). The defendants in their answers have d......