Dosher v. Hunt , 243 N.C. 247 ( 1955 )

90 S.E.2d 374 (1955) 243 N.C. 247

Marion S. DOSHER
v.
Harlowe G. HUNT and J. B. Hunt and Sons, Inc.

No. 598.

Supreme Court of North Carolina.

December 14, 1955.

Nance & Barrington and Rudolph G. Singleton, Jr., Fayetteville, for plaintiff appellant.

Oates, Quillin & Russ, Fayetteville, and Smith, Leach, Anderson & Dorsett, Raleigh, for defendant Hunt, appellee.

McNeill Smith, Greensboro, Cale Burgess, Raleigh, and Smith, Moore, Smith & Pope, Greensboro, for defendant J. B. Hunt & Sons, Inc., appellee.

BARNHILL, Chief Justice.

Plaintiff offered ample evidence of negligence on the part of defendant Hunt to repel the motion to nonsuit as to him. Indeed, his own testimony suffices. Therefore the judgments entered in the court below must be sustained, if at all, either on the theory that plaintiff, the owner of the automobile being driven by the defendant Hunt, was guilty of contributory negligence, or that since she was the owner of and a passenger in the automobile with the present right to control and direct its operation, any negligence on the part of Hunt must be imputed to her under the doctrine of imputed negligence.

We are unable to say that the plaintiff was guilty of contributory negligence as a matter of law. The road was straight, Hunt was not operating the automobile in excess of the maximum speed limit, and the rear lights of the forward car were visible for some considerable distance ahead. There is nothing in the record to support the conclusion as a matter of law that the plaintiff knew, or by the exercise of ordinary care should have known, that Hunt did not see the forward car and would not, unless cautioned, take any action to avoid a collision therewith. When they were within about eighty feet of the automobile, plaintiff did exclaim, "Watch out," or "Look out," and Hunt cut the automobile to the left, but not sufficiently to avoid a collision. This presents a question for the jury, and not the court, as to the contributory negligence of the plaintiff. Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Samuels v. Bowers, 232 N.C. 149, 59 S.E.2d 787; Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E.2d 740.

On this question Bogen v. Bogen, 220 N.C. 648, 18 S.E.2d 162, is easily distinguishable. There the plaintiff passenger knew that the defendant driver habitually drove in a reckless manner and at a high rate of speed without keeping a proper lookout. There is no such evidence in this record.

"The doctrine of imputed negligence visits upon one person legal responsibility for the negligent conduct of another. It applies, however, only in limited classes of cases. In its application to the law of master and servant, it appears in these two rules:

"1. The master is liable to a third person for an injury caused by the actionable negligence of his servant acting within the scope of his employment. [Authorities cited.]

"2. The master is barred from recovery from a negligent third person by the contributory negligence of his servant acting within the scope of his employment. [Authorities cited.]" (Italics supplied.) Rollison v. Hicks, 233 N.C. 99, 63 S.E.2d 190, 194.

Therefore, the doctrine of imputed negligence has no application in an action by the master against his servant to recover for injuries suffered by the former as a result of the latter's actionable negligence. Rollison v. Hicks, supra; Darman v. Zilch, 56 R.I. 413, 186 A. 21, 110 A.L.R. 826; Annotation ibid, at page 831.

"* * * it would offend justice and right to impute the negligence of a servant to his master and thus exempt him from the consequences of his own wrong-doing where the negligence proximately causes injury to a master who is without personal fault." Rollison v. Hicks, supra.

While there is evidence that the defendant Hunt was in the general employment of the defendant corporation, it cannot be gainsaid that at the very time and place of the accident he was then acting as the agent of the plaintiff in operating her automobile with her consent or at her direction.

The owner-passenger on an automobile has the right to control and direct its operation. So then, when he seeks to recover from a third party damages resulting from a collision of the vehicle with some other automobile or object, the negligence, if any, of the party who is operating the automobile with the owner-passenger's permission or at his request is imputed to the owner-passenger. The driver's negligence is the negligence of the owner and bars recovery against the third party. Harper v. Harper, 225 N.C. 260, 34 S.E.2d 185. Therefore, as to the corporate defendant, the doctrine of imputed negligence does apply.

"Inasmuch as the master undertakes to manage his affairs through his servant, it is just that he be charged in law with the negligent conduct of his servant acting within the scope of his employment where the rights or liabilities of third persons are involved." Rollison v. Hicks, supra.

The defendant Hunt may not exculpate himself from the result of his alleged negligence on the plea that he and the plaintiff were engaged in a joint enterprise in the operation of the automobile and that any negligence in its operation by him is imputable in law to his fellow adventurer, the plaintiff, and defeats any recovery in this action.

"The doctrine of joint enterprise whereby the negligence of one member of the enterprise is imputable to others, resting as it does upon the relationship of agency of one for the other, does not apply in actions between members of the joint enterprise and does not, therefore, prevent one member of the enterprise from holding another liable for personal injuries inflicted by the latter's negligence in the prosecution of the enterprise. In other words, the doctrine of common or joint enterprise as a defense is applicable only as regards third persons and not parties to the enterprise * * *." 38 A.J. 925; Rollison v. Hicks, supra; Note, 30 NCL Rev. 179, at p. 182; 65 C.J.S., Negligence, § 158, p. 799.

Bass v. Ingold, 232 N.C. 295, 60 S.E.2d 114, and Evans v. Johnson, 225 N.C. 238, 34 S.E.2d 73, are factually distinguishable. In those cases the defendant was seeking to bring in a third party as a joint tortfeasor under the provisions of G.S. § 1-240.

To summarize: (1) There is sufficient evidence in the record to require the submission of an issue of negligence as against defendant Hunt; (2) the record fails to disclose that plaintiff was guilty of contributory negligence as a matter of law; it only presents a question for the jury on that issue; (3) as to plaintiff's suit against defendant Hunt, any negligence on the part of Hunt is not imputable to plaintiff; (4) the doctrine of joint enterprise does not apply as between plaintiff and defendant Hunt; and (5) in plaintiff's suit against the corporate defendant, the negligence of the defendant Hunt is imputable to her and bars any recovery by her from the corporate defendant.

It follows that the judgment of nonsuit entered as against the corporate defendant must be sustained, and the judgment of nonsuit as against the individual defendant must be reversed.

As to corporate defendant: Affirmed.

As to individual defendant: Reversed.