Maynor v. Townsend , 2 N.C. App. 19 ( 1968 )

162 S.E.2d 677 (1968) 2 N.C. App. 19

Aggie Neil MAYNOR
v.
William J. TOWNSEND, Administrator of the Estate of Berline Carter.

No. 68SC63.

Court of Appeals of North Carolina.

August 14, 1968.

Bryan, Bryan & Johnson, Dunn, for plaintiff appellee.

William J. Townsend, Fayetteville, for defendant appellant.

BRITT, Judge.

In determining the propriety of the court's allowance of the motion for nonsuit of defendant's counterclaim, the question arises as to the sufficiency of the evidence to be submitted to the jury on three crucial points: (1) Whether there was pecuniary loss to the estate of the defendant's decedent; (2) Whether the plaintiff was the driver of the automobile; and (3) Whether the plaintiff was actionably negligent. We will discuss the points in the order listed.

(1) Was the evidence sufficient to present a jury question with respect to whether there was a pecuniary loss to the estate of defendant's decedent?

It was established in the pleadings—alleged by the defendant and "not denied" by the plaintiff—"[t]hat prior to said automobile accident Berline Carter was in good health and was thirty (30) years of age, being born on May 10, 1933, and as a result of said automobile accident received injuries resulting in her death." At the trial, the decedent's husband, Wade Lee Carter, testified that his wife "was in good health" at the time of the accident and able to take care of their five children and keep house; that she was able to do "house work" and "most any kind of farm work. She was raised on a farm."

On these facts, the evidence of pecuniary loss to the estate of Berline Carter was sufficient to require submission to the jury. Recovery under the North Carolina Wrongful Death Act, G.S. §§ 28-173, 174 is limited by § 174 to "such damages as are a fair and just compensation for the pecuniary injury resulting from such death." Thus, the statute permits recovery of neither nominal nor punitive damages and the burden is on the party seeking recovery "to prove that the estate of his intestate suffered a net pecuniary loss as a result of her death." Greene v. Nichols, 274 N.C. 18, 161 S.E.2d 521. Direct evidence of earnings is not essential, it being sufficient to present evidence of "health, age, industry, means and business," Reeves v. Hill, 272 N.C. 352, 158 S.E.2d 529, but "it is required that plaintiff offer some evidence tending to show that intestate was potentially capable of earning money in excess of that which would be required for her support." Greene v. Nichols, Supra. See also Stetson v. Easterling, 274 N.C. 152, 161 S.E.2d 531.

Here, evidence of the decedent's age, general health and capacity to work was sufficient to present a question for the jury with respect to the question of damages.

(2) Was the evidence sufficient to present a jury question with respect to whether the defendant's decedent was driving the automobile at the time of the wreck?

This issue drew the sharpest conflict in the evidence adduced at the trial. No less than eight witnesses, who knew the plaintiff Aggie Maynor as relatives, friends and neighbors in Saint Pauls, and whose periods of acquaintance ranged from three to 15 or 20 years, testified in her behalf that they had never seen her drive a car. Some of the witnesses testified to having seen Aggie Maynor and Berline Carter in the 1956 Ford, always with Berline driving.

Plaintiff herself took the stand and testified that she had never owned a car, had never operated a car, did not know how to operate a car, and had no driver's license. She further testified that she had contributed about $200.00 toward the purchase price of the 1956 Ford on the understanding that Berline would take her places when she had to go. She further stated that on the night of the wreck, Berline was driving and she was a passenger in the front seat.

Defendant put on two witnesses who testified that they visited Aggie Maynor in the hospital on the morning of 8 February 1964, some twelve hours after the wreck. Mrs. Pauline Davis, a sister of Berline Carter, testified that while she was in Mrs. Maynor's room, in the presence of two other people: "I spoke to her; she spoke. I asked her who was driving and she said ``I was.' Then she changed the subject and said, ``We wasn't driving fast.'" Brady Locklear testified that he also visited plaintiff in the hospital on the morning of 8 February and that, in response to a question by his brother, Mrs. Maynor said that she was driving.

Dr. Biggs had testified earlier in behalf of the plaintiff that plaintiff was in such condition due to concussion and shock and other physical injuries that he was unable to administer anesthetic to her until 11 February. Plaintiff testified in rebuttal that she remembered seeing no one at the hospital on 8 February and knew nothing at all for three or four days after the wreck.

The presence of the owner in his car at the time of a wreck raises no presumption that he was the operator. Greene v. Nichols, Supra; Johnson v. Fox, 254 N.C. 454, 119 S.E.2d 185; Parker v. Wilson, 247 N.C. 47, 100 S.E.2d 258. But the identity of the driver at the time may be established by any combination of circumstantial and direct evidence. Greene v. Nichols, Supra.

Here, there was no evidence as to the positions of the two occupants after the wreck; apparently they were both thrown from the car. There was, however, direct evidence tending to show that defendant's intestate was driving and direct evidence tending to show plaintiff was driving. This conflicting evidence clearly raised a question of fact for the jury. Myers v. Southern Public Utilities Co., 208 N.C. 293, 180 S.E. 694.

(3) Was the evidence sufficient to present a jury question with respect to whether the plaintiff was actionably negligent?

The burden of proving actionable negligence in an action for damages for wrongful death grounded in negligence is, of course, on the party seeking recovery. Sowers v. Marley, 235 N.C. 607, 70 S.E.2d 670. But if the evidence, that offered by both plaintiff and defendant, construed in the light most favorable to the party with the burden of proof, Boyd v. Blake, 1 N.C.App. 20, 159 S.E.2d 256, is sufficient to make out a prima facie case of actionable negligence, a motion for nonsuit should be denied and the case submitted to the jury. Mills, Inc. v. Terminal, Inc., 273 N.C. 519, 160 S.E.2d 735.

The facts in the case at bar are similar to the facts in Greene v. Nichols, Supra, which our Supreme Court held were sufficient to make out a case of actionable negligence. There, an automobile left the highway on a curve and crashed into a tree, killing all three occupants. There were no eyewitnesses. An action for wrongful death was brought by the administrator of one occupant against the administrator of another. At the trial, the plaintiff introduced no evidence tending to show why the car left the highway and, from a judgment of nonsuit, appealed to the Supreme Court. The Court held that the evidence was sufficient to present a jury question with respect to whether defendant's intestate was the driver of the car. Then, reviewing prior decisions in this jurisdiction, and other authority, the Court held that the evidence was sufficient to present a jury question with respect to the actionable negligence of the defendant's intestate. Sharp, J., writing for the majority, explained the Court's reasoning:

"It is generally accepted that an automobile which has been traveling on the highway, following ``the thread of the road,' does not suddenly leave it if the driver uses proper care. Such an occurrence is an unusual event when the one in control is keeping a proper lookout and driving at a speed which is reasonable under existing highway and weather conditions. * * * The inference of driver-negligence from such a departure is not based upon mere speculation and conjecture; it is based upon collective experience which has shown it to be the ``more reasonable probability.' * * *

"When a motor vehicle leaves the highway for no apparent cause, it is not for the court to imagine possible explanations. Prima facie, it may accept the normal and probable one of driver-negligence and leave it to the jury to determine the true cause after considering all the evidence—that of defendant as well as plaintiff."

The Court concluded that, on the basis of this rationale, the plaintiff had made out a prima facie case of actionable negligence.

In the instant case, the evidence, in the light most favorable to the defendant, tends to show these facts: On the evening of Friday, 7 February 1964, the defendant's decedent was a passenger in an automobile being operated by the plaintiff. Traveling north toward Fayetteville on U. S. 301-A, the car came to a left-hand curve about two miles north of Lumberton. As it went into the curve, the car swerved across the center line into the southbound lane, came back into the northbound lane, left the pavement on the right-hand side, traveled along the shoulder, struck the bank beyond the ditch, and finally came to rest facing back toward Lumberton, at least 258 feet from where it first began to swerve.

The jury should first consider the issue of who was driving the car. If it concludes, as plaintiff's evidence tended to show, that defendant's decedent was the driver, then the issue of negligence will not be reached. But if it finds that plaintiff was the driver, as defendant's evidence tended to show, then it must determine the issue of actionable negligence, weighing against the defendant's prima facie case any evidence in explanation offered by the plaintiff, including the evidence which tended to show that the car had slick tires and that the highway was wet. It would seem that separate issues should be submitted with respect to the identity of the driver and negligence.

* * *

We conclude that in the light of Greene v. Nichols, Supra, filed on 14 June 1968— since the trial of the case at bar—defendant was entitled to have a jury pass upon his counterclaim.

The judgment of compulsory nonsuit to the counterclaim is

Reversed.

CAMPBELL and MORRIS, JJ., concur.