Westmoreland v. Gregory
| Decision Date | 16 June 1961 |
| Docket Number | No. 529,529 |
| Citation | 255 N.C. 172,120 S.E.2d 523 |
| Parties | Florence R. WESTMORELAND v. William Harold GREGORY and Eugene Robert Gregory. |
| Court | North Carolina Supreme Court |
Dupree, Weaver, Horton & Cockman, Raleigh, for defendants-appellants.
Wilson & Bain, Dunn, for plaintiff-appellee.
Defendants' motions for judgments of nonsuit were properly overruled. The evidence, when considered in the light most favorable to plaintiff, was amply sufficient to support findings that Harold Gregory's actionable negligence proximately caused the mishap and that Buddy Gregory was liable therefor under the family purpose doctrine. Whether plaintiff was contributorily negligent, as alleged by defendants, was for jury determination upon sharply conflicting evidence.
On April 30, 1959, Harold Gregory was twenty years old. He had been in the military service from 1955 until April 28, 1958. From November, 1958, until April 30, 1959, he resided in the home of Buddy Gregory, his uncle, on the Sanford Road (Highway 421), west of Lillington. During this period, he worked for Buddy Gregory in his motor boat business on Main Street in Lillington, referred to as Buddy's Marine, where Jack Westmoreland, plaintiff's husband, was employed by Buddy Gregory as a mechanic.
On April 30, 1959, plaintiff was thirty-four years old. she had married Jack Westmoreland in December, 1946. They, and their three children, lived on First Street in Lillington. Buddy Gregory's home was 'on the opposite side of town' from the Westmorleand residence.
Harold Gregory, also Buddy Gregory and his wife, had visited in the Westmoreland home. There is no evidence of any impropriety in the relations of Harold Gregory and plaintiff prior to April 30, 1959. Harold Gregory testified he had played cards with the Westmoreland boys in the Westmoreland home.
Jack Westmoreland left Lillington during the morning of April 30, 1959, on a business trip. He was to go, and did go, to Durham and from there to Greensboro. At that time, Jack Westmoreland had, in his home, some 'bootleg' whiskey. Harold Gregory went to the Westmoreland home between 1 and 2 p. m. When he arrived, and while he was there, plaintiff was the only other person in the Westmoreland home. Harold Gregory had a drink of the Westmoreland whiskey while he and plaintiff sat in the Westmoreland home and watched a television program. Apart from these facts, the testimony of plaintiff and the testimony of Harold Gregory as to what transpired between them from the time he arrived at the Westmoreland home until the mishap on the McDougald Road are in sharp conflict.
Plaintiff's testimony, in summary, tends to show she did not telephone Harold Gregory or otherwise invite him to her home; that, upon his arrival, he stated her husband had told him 'he had some whiskey there that he could have a drink of'; that, when she brought the whiskey to Harold Gregory, he poured out 'an inch in a juice glass' and drank it while they watched television; that she loaned Harold Gregory one dollar to buy beer and handed him an extra dollar to buy two cans of beer for her; that, upon leaving to go for the beer, he did not take the two dollars, which were on the kitchen table; that, upon his return, he commented that he had forgotten the money and asked her if she wanted to go with him to get the beer; that she consented to go upon his assurance they would be gone only five or ten minutes; that she was in the car when Harold Gregory bought four cans of beer; that, upon his return to the car, he gave her an opened can of beer, kept an opened can and put the two unopened cans in the foot of the car; that, instead of taking her home, Harold Gregory drove out into the country under the pretext of showing her where his girl lived and ignored her repeated requests that he take her home; that, after he had turned off the highway and stopped the car, he made an improper proposal to her, which she indignantly refused and demanded that he take her home; that there was no 'kissing and petting' there or elsewhere; that she did not sit 'real close up to (him)' at any time while riding with him; that, on their return to Lillington, Harold Gregory drove between 60 and 65 miles an hour, around curves, on the wrong side of the road; that she repeatedly told him to slow down and drive on his side of the road but did not physically interfere with him in any way; that she knew he had had a drink when she left her house with him to go and purchase beer and that thereafter he had had a can of beer but '(i)t did not appear to (her) then he was under the influence of anything that he had been drinking.'
Harold Gregory's testimony, in summary, tends to show he went to plaintiff's home, in response to her telephone request, and upon arrival was invited into her house and given a drink of whiskey; that she gave him money with which to go and buy beer; that he went and bought the beer and upon his return he and plaintiff drank beer at the Westmoreland house; that she then went with him to buy more beer; that after this second purchase of beer he drove several miles, she 'sitting over real close' to him, and turned off the highway to a secluded spot known as 'Hell's Half Acre,' where they stayed some 50 minutes or more, drinking beer and 'kissing and petting'; that, after these events, plaintiff asked him to take her home; that, on the way back to Lillington, plaintiff 'was sitting real close up to (him)'; that she made no objection or comment as to how he was driving; that he had had 'one glass of whiskey and two beers'; that plaintiff, to the best of his knowledge, had had four cans of beer, three at the house (first purchase) and...
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