Jyachosky v. Wensil , 240 N.C. 217 ( 1954 )

81 S.E.2d 644 (1954) 240 N.C. 217

JYACHOSKY
v.
WENSIL et al.

No. 534.

Supreme Court of North Carolina.

May 5, 1954.

Taliaferro, Grier, Parker & Poe, Charlotte, for plaintiff-appellee.

Coble Funderburk, Monroe, for defendant Garmon, appellant.

Jones & Small, Charlotte, Bernard W. Cruse, Concord, for defendant Wensil, appellant.

BOBBITT, Justice.

The assignments of error upon which appellants place great stress challenge the sufficiency of the evidence to warrant submission to the jury of the first and third issues. These assignments are directed to the refusal of the court below to sustain their motions for judgment of nonsuit (AE 11, 12, 13 and 14) and to its refusal to direct a verdict in their favor on the first and third issues. (AE 15, 16).

Plaintiff's case rests principally upon evidence as to appearance of the truck involved in causing her injury; evidence as to the appearance of the truck in possession of Garmon at the service station in Matthews when he was arrested and thereafter parked at the Police Station in Monroe; and evidence from two witnesses who saw the truck at the scene of injury and who identified the truck at the Police Station in Monroe as being the same truck. It was sufficient for submission to the jury on the question as to whether the truck operated by Garmon was the truck involved in causing plaintiff's injury. In this connection, we note that the rule as to the sufficiency of circumstantial evidence in criminal prosecution differs from that applicable in civil actions. National Shirt and Hat Shops v. American Motorists Ins. Co., 234 N.C. 698, 68 S.E.2d 824, and cases cited.

While defendants assign as error (AE 1, 4) the admission of the quoted testimony of Jyachosky and Garland, they cite no authority in support of this contention. The testimony is clearly competent. Its credibility was for the jury. We have considered all the evidence, testimony and exhibits, carefully. It would serve no useful purpose to set forth in detail the testimony of Jyachosky and Garland or of the other witnesses. Analysis thereof only emphasizes the conflicts and contradictions and brings us to the conclusion that decision on the crucial issues was dependent upon determination of the credibility of the witnesses. The testimony of Jyachosky and Garland, considered with the testimony of Patrolmen Ward and Pierce, fully justified submission of the first issue.

Defendant Wensil further challenges the sufficiency of the evidence to warrant submission to the jury on the third issue on the ground that defendant Garmon, in any event, was on a personal mission and was not operating the Wensil truck within the scope of his employment and in furtherance of his employer's business.

It is true now, as it was when Carter v. Thurston Motor Lines, 227 N.C. 193, 41 S.E.2d 586, was decided, that plaintiff was required to allege and establish that the operator of the truck was an agent or employee of the owner thereof and that this relationship existed at the time and in respect of the very transaction out of which injury arose before the doctrine respondeat superior applies. As to necessity for such pleading: Parker v. Underwood, 239 N.C. 308, 79 S.E.2d 765; Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767.

In Carter v. Thurston Motor Lines, supra, where plaintiff was nonsuited, Barnhill, J. (now C. J.), after reviewing many decisions, pointed out that the well established rule in North Carolina required a plaintiff, after showing ownership of the truck and the employment of the operator by such owner, to go further and offer positive evidence that the operator was about his employer's business at the time and in respect of the very transaction out of which the injury arose. This rule imposed a very difficult and often insurmountable burden on an injured plaintiff. Cases cited by defendants are in accord with Carter v. Thurston Motor Lines, supra, all arising prior to G.S. § 20-71.1.

Thereafter, the General Assembly enacted Ch. 494, Session Laws of 1951, entitled, "An Act To Provide New Rules Of Evidence In Regard To The Agency Of The Operator Of A Motor Vehicle Involved In Any Accident." This statute, now codified as G.S. § 20-71.1, did not change the basic rule as to liability. It did establish a new rule of evidence, changing radically the requirements as to what the injured plaintiff must show in evidence in order to have his case passed on by the jury. Hartley v. Smith, supra; Parker v. Underwood, supra.

Under G.S. § 20-71.1, all now required for submission of the issue to the jury, is that the injured party show ownership of the motor vehicle, which may be done prima facie by proof that the motor vehicle was registered in the name of the person sought to be charged, and if ownership is established this constitutes prima facie evidence that "``such motor vehicle was then being operated by and under the control of a person for whose conduct the owner was legally responsible, for the owner's benefit, and within the course and scope of his employment' "Hartley v. Smith, supra [239 N.C. 170, 79 S.E.2d 771].

A candid appraisal prompts the observation that in passing from the rule recognized in Carter v. Thurston Motor Lines, supra, to the rule prescribed by G.S. § 20-71.1, the pendulum seems to have swung from one extreme to the other. For under G.S. § 20-71.1, proof of ownership alone takes the case to the jury. It is not required that positive evidence be offered that the operator was then and there acting as employee or agent within the scope of his employment or agency. Moreover, it is not required that positive evidence be offered that the operator was an employee or agent of the owner.

Evidence offered by defendants tends to show that defendant Wensil was the owner of the 1940 Dodge pick-up truck in defendant Garmon's possession in Matthews on the occasion of his arrest. Plaintiff's evidence tends to show that N. C. license plate attached thereto bore license number 841-730. Certificate of registration, offered by plaintiff, tends to show that defendant Wensil was the owner in 1951 of the 1940 Dodge pick-up for which this license was issued. By virtue of G.S. § 20-71.1, proof of such registration was competent and constituted prima facie evidence of ownership. Defendants' assignment of error (AE 10) to its admission in evidence is without merit. Ownership, if established, under G.S. § 20-71.1, was prima facie evidence that the truck was being operated by defendant Garmon as employee of defendant Wensil within the scope of his employment.

The trial judge instructed the jury, in relation to the third issue, that if plaintiff satisfied the jury by the greater weight of the evidence that defendant Wensil was the owner of the truck involved in causing injury to plaintiff, then the jury would consider the question of agency; and upon consideration thereof, the burden of proof rested upon plaintiff to satisfy the jury by the greater weight of the evidence that the operator of defendant Wensil's truck was then and there operating it as employee or agent of defendant Wensil and within the scope of his employment or agency.

When plaintiff has offered evidence of facts sufficient to give rise to a prima facie case, the ultimate issue is for the jury; and when the defendant offers evidence, which, if accepted, would establish that he is not legally responsible, the credibility of such evidence is for the jury. The significance of a prima facie case has been often discussed and authorities cited. Millers Mutual Ins. Ass'n v. Atkinson Motors, Inc., N.C., 81 S.E.2d 416. The trial judge correctly stated the law in relation to the significance of a prima facie case; and assignments of error (AE 18, 19, 20) are without merit.

True, the only positive evidence as to the relationship between defendant Garmon and defendant Wensil was offered by the defendants. While to the effect that defendant Garmon was an employee of defendant Wensil in connection with his business, defendants' evidence tended to show explicitly that on 16 June, 1951, on the highway between Charlotte and Monroe, defendant Garmon was on a purely personal mission wholly unrelated to his employer's business. In Travis v. Duckworth, 237 N.C. 471, 75 S.E.2d 309, it was held that proof of ownership of the tractortrailer was prima facie evidence that the operator was then and there acting as agent and within the scope of such agency; that motion of nonsuit was properly overruled, the issue being for the jury; but a new trial was ordered because of the failure of the trial judge to give a peremptory instruction to the effect that it would answer the issue of agency in the negative if it found the facts to be as the defendants' evidence tended to show, namely, that the operator was on a purely personal mission at the time of the collision. Correctly applying the law as stated in Travis v. Duckworth, supra, the trial judge instructed the jury as follows:

"Now, the Court charges you, as a matter of law, that if you believe the evidence of the defendants that he was sent from Kinston to Concord on business for the defendant Wensil, and that, having transacted the defendant Wensil's business, he was on his way back to Kinston, and had reached the town of Monroe, and that having reached Kinston—I mean Monroe—having reached Monroe on his way back to Kinston, he then turned and drove the truck from Monroe to Charlotte on business for his own, and not on business for the defendant Wensil, and in pursuit of something entirely unrelated and disconnected with his employment, the Court charges you if you find those things to be true, it would be your duty to answer the third issue No."

In addition to the portion of the charge quoted above, the court restated the same proposition in other instructions. A careful reading of the charge gives the impression that it was made quite clear to the jury that if they believed the defendants' evidence relating to this issue it was their duty to answer the third issue, "No." Too, the trial judge repeatedly emphasized that the burden of proof on the issue rested and remained on plaintiff throughout the trial to establish agency at the time and in respect of the very transaction out of which plaintiff's injury arose. The charge in these respects was correct and adequate. Indeed, considered in its entirety, we find therein no error of law prejudicial to the defendants.

Defendants assign error (AE 2) to the admission in evidence of testimony by Andrew Jyachosky tending to show amounts paid by him to doctors, nurses, hospital, etc., in treatment of plaintiff, approximating $1,900. The bills and cancelled checks were produced and checked by counsel for defendants. Jyachosky's testimony is that these payments were made from funds belonging to him and plaintiff, his wife, jointly. The total amount of these joint funds does not appear. Nor is there evidence as to the respective rights of the co-owners, as between themselves. There is evidence that plaintiff had been regularly employed as State Secretary for the Reserve Life Insurance Company since the latter part of 1946, and that her salary had been $225 per month. Whether her interest in these joint funds exceeded the amounts paid therefrom does not appear. Ordinarily, such expenses are proper elements of damages in a wife's tort action. Helmstetler v. Duke Power Co., 224 N.C. 821, 32 S.E.2d 611. It does not appear that her husband's money was expended in discharge of these bills. In any event, under the circumstances disclosed here, he would be estopped to recover in a separate action for these items of damage. Consequently, no error prejudicial to defendants is made to appear.

Defendants assign as error (AE 16) this excerpt from the portion of the charge relating to the first issue. "Now, this issue presents a question of fact. There is no law involved in that question. Was it the automobile of the defendant Wensil, or wasn't it? The Court does not consider any useful purpose to be served by reviewing the testimony of the witnesses."

The wording of the first issue is set out above. In his instructions, the trial judge submitted it, not on questions of negligence, proximate cause or agency, but solely on the question as to the identity of the truck involved in the incident causing plaintiff's injury. The second issue was: "If so, was said collision and resulting injuries proximately caused by the negligence of the defendant Garmon, as alleged in the Complaint?" Here the trial judge, in a charge to which no exception was taken, instructed the jury bearing upon the alleged negligence of the operator of the truck (Garmon) in forcing the Jyachosky car off the highway and causing it to collide with the parked car. The trial judge was certainly correct in stating that the first issue presented a question of fact. Perhaps his further statement, "There is no law involved in that question," was unnecessary and rather sweeping in its implications. However, considered in context, we cannot conclude that this remark was prejudicial to defendants. It is plain that the jury understood what they had to decide concerning the first issue.

Defendants assign as error (AE 17) this excerpt from the portion of the charge relating to the third issue: "Now, it is alleged by the plaintiff and admitted by the defendant that a red Dodge panel truck belonging to the defendant Wensil and driven by the defendant Garmon was in the general vicinity or somewhere along Highway 74 between Charlotte and Monroe at the time plaintiff was injured." No objection was interposed to this statement when made, nor at the close of the charge when, in response to the court's inquiry, "Anything further, gentlemen?" counsel for defendant Wensil observed: "I don't believe anything that would be helpful at this time. You did forget to tell the jury that the court excused Mr. Funderburk (Garmon's separate counsel) for having another appointment." The reference to a "panel" instead of a "pick-up" truck was an obvious inadvertence. No one contended that a "panel" truck was involved. All the evidence tended to show that Garmon traveled on Highway No. 74 between 7:00 p.m. and 9:00 p.m. between Monroe and Charlotte. Plaintiff's evidence tended to show that he was driving the truck that caused her injury 3-31/2 miles west of Monroe about 7:45 p.m. Defendants' evidence tended to show that Garmon was in or near Charlotte when plaintiff was injured. The respective positions of plaintiff and defendants were crystal clear. The quoted statement of the trial judge, considered alone, did not develop the precise contentions of the respective parties; but, considering the evidence and the charge in its entirety, there is no sound reason to believe that the jury was in any way misled as to defendants' position. Evidently, counsel for defendants did not so consider at the time for no suggestion was made that the trial judge modify or clarify the statement.

Other assignments of error are brought forward in the brief of defendants, supported by argument but without citation of authority. To discuss each would unduly extend this opinion. We have examined each assignment and find none of sufficient merit to constitute reversible error.

The preliminary statement of the evidence, necessarily incomplete, indicates the sharp conflicts in testimony Such conflicts are for jury determination, to be resolved largely on the basis of the credibility of the several witnesses. The jury, had it rejected the evidence favorable to plaintiff or had it accepted the evidence favorable to defendants, might have reached a different conclusion. However, as to the facts, both the trial court and this Court are bound by the jury's findings. True, in proper cases, the trial judge, in his discretion, may set the jury's verdict aside as being contrary to the greater weight of the evidence. This Court, upon appeal, is limited to a consideration of errors of law in the court below. No prejudicial error of law has been shown. The result is that the judgment of the court below will not be disturbed.

No error.

BARNHILL, Chief Justice (concurring).

There is grave error appearing in the record. But it is error committed by the jury. No error was committed by the presiding judge unless it was error on his part to decline to exercise his discretionary power to grant the motion to set aside the verdict. Thus he could have saved the situation. In the absence of prejudicial error committed by him, we are without authority to disturb the verdict and judgment entered thereon.

When a nonowner-operator of a motor vehicle, by his negligent operation thereof, injures the person or damages the property of another, G.S. § 20-71.1 makes proof of the ownership of the vehicle prima facie evidence that the operator was, at the time, the agent or employee of the owner and was about his master's business, so as to render the owner liable in damages under the doctrine of respondeat superior. This fact, which the jury may, but is not compelled to infer from the mere proof of ownership, is not an inference of fact which naturally and necessarily follows proof of ownership. It is a bare, artificial inference manufactured by statute.

In this case it is not supported by a single fact or circumstance appearing of record. On the contrary, all the testimony and every fact and circumstance disclosed by the record tend to show that the operator was on a mission of his own and was at the time operating the vehicle without the knowledge, consent, or approval—either express or implied—of the owner. There was no effort to attack the reputation or impeach the testimony of any one of the witnesses who so testified. We must, therefore, assume they are persons of character and integrity. Yet the jury adopted the bare artificial inference of fact permitted by the statute and found that it was sufficient to override and outweigh all the positive evidence to the contrary. While we may grant new trials for errors of law committed by the trial judge, we are without authority to correct this error in the verdict. The jury was the final arbiter of the facts. Therefore we must affirm a judgment which compels the defendant to pay plaintiff $18,000 which he should not be required to pay. This offends my every sense of justice and fair play. I can only say that it is most unfortunate that judicial officers should be placed in a position where they must deny relief against injustice in the name of the law. While we need some statute such as G.S. § 20-71.1, this Act should be so amended as to afford the court an opportunity to grant relief in a case of this kind.

Since the trial judge committed no error in the trial of the cause, I must, in compliance with my oath to administer the law as it is written, concede that the judgment entered must be affirmed. In so doing, I make my assent as negative as language will permit.

WINBORNE and PARKER, JJ., join in concurring opinion.