Wilcox v. Glover Motors, Inc.

153 S.E.2d 76 (1967) 269 N.C. 473

Hugh WILCOX
v.
GLOVER MOTORS, INC., and Doran Kent Anders.
Juanita WILSON
v.
GLOVER MOTORS, INC., and Doran Kent Anders.

No. 116.

Supreme Court of North Carolina.

March 1, 1967.

Robinson & Randle, Jacksonville, Fla., Parker, McGuire & Baley, Asheville, for plaintiff appellant Wilcox.

John C. Cheesborough and G. Edison Hill, Asheville, for plaintiff appellant Wilson.

Van Winkle, Walton, Buck & Wall, by O. E. Starnes, Jr., Lee & Allen, by H. Kenneth Lee, Asheville, for defendant appellees.

LAKE, Justice.

The principal contention of the defendants, with reference to the issue of negligence by Anders, was that Anders was faced with a sudden emergency due to the failure of the brakes on the Glover car which he was driving. The plaintiffs assign as error portions of the charge to the jury with reference to the doctrine of sudden emergency. We find in these instructions, when read in context, no error prejudicial to the plaintiffs.

In his argument to the jury upon this issue, one of the trial counsel for Anders (not his counsel in this Court) read to the jury excerpts from the published opinions of this Court in Crowe v. Crowe, 259 N.C. 55, 129 S.E.2d 585; Stephens v. Southern Oil Co., 259 N.C. 456, 131 S.E.2d 39; and Hudson v. Drive It Yourself, 236 N.C. 503, 73 S.E.2d 4. In those cases, this Court, applying the doctrine of sudden emergency to the facts there recited, affirmed a judgment of nonsuit in the first case, granted the defendant a new trial in the second, and reversed the denial of a motion for nonsuit in the third.

Counsel introduced this portion of his argument with the statement, "The fact situation in these cases is the same as in Mr. Anders' case." He concluded this portion of his argument by saying, "I say to you that the facts in this case are the same as the facts in the case I have just read [Hudson v. Drive It Yourself, supra], and that the defendant Anders is no more liable here than the defendants in the other cases."

The portions of the opinions in the Crowe and Hudson cases, supra, so read to the jury, contained summaries of the facts shown by the records in those cases. Counsel's reading from the opinion in the Crowe case, supra, closed with this quotation therefrom: "Plaintiff's evidence, considered in the light most favorable to him, and giving to him the benefit of every legitimate inference to be drawn therefrom, fails to show any negligence on defendant's part which was a proximate cause of his injuries." Counsel's reading from the opinion in the Hudson case, supra, that being a case of a sudden brake failure, closed with this quotation therefrom: "We reach the conclusion that the evidence offered was insufficient to show a negligent breach of duty on the part of the defendant, and that the motion for judgment of nonsuit should have been allowed."

During this portion of the argument, the plaintiffs objected on the ground that counsel for Anders was reading to the jury the facts in these other cases. The record shows no ruling by the trial judge upon this objection. Plaintiffs' briefs, however, state that upon their objection the judge stopped this argument, but did not instruct the jury to disregard it. There is no reference to this argument in the charge of the court to the jury. There is nothing in the charge bearing upon the matter, except the court's general statement that the jury was not to take the law from counsel but from the court and was to apply it to the facts as the jury found the facts to be from all the evidence.

This was not proper argument. It was highly prejudicial to the plaintiffs. The trial judge should have promptly sustained the objection, directed counsel to desist from so comparing the facts of the reported cases with the one on trial and instructed the jury to disregard this portion of counsel's argument, or he should have so instructed the jury in his charge so specifically as to leave no doubt in the minds of the jurors that such excerpts from the former decisions of this Court were not to be considered by them in determining whether or not these plaintiffs were injured by the negligence of Anders. State v. Smallwood, 78 N.C. 560; 88 C.J.S. Trial § 200. It is not sufficient merely to stop such an argument without an appropriate direction to the jury.

In McIntosh, North Carolina Practice and Procedure, 2d ed., § 1492, with reference to the procedure for correcting and removing the effects of improper argument, it is said:

"The Court may correct the impropriety by at once checking the argument and restricting it within proper bounds, or he may correct it in his charge to the jury, or if a favorable verdict is given he may set aside the verdict and grant a new trial. It is difficult to lay down the line, further than to say that it must ordinarily be left to the discretion of the judge who tries the case; and the Court will not review his discretion, unless it is apparent that the impropriety of counsel was gross and well calculated to prejudice the jury."

Since, in the present instance, the trial judge did not correct the impropriety by any of these methods, it is necessary for us to do so by granting a new trial.

G.S. § 84-14 provides, "In jury trials the whole case as well of law as of fact may be argued to the jury." It is well settled that this statute permits counsel, in his argument to the jury, to state his view of the law applicable to the case on trial and to read, in support thereof, from the published reports of decisions of this Court. Brown v. Vestal, 231 N.C. 56, 55 S.E.2d 797; Howard v. Western Union Telegraph Co., 170 N.C. 495, 87 S.E. 313. It is often necessary for counsel to do so in order that the jury may understand the issue to which counsel's argument on the evidence is addressed.

In order to make meaningful a statement of a rule of law found in a reported decision, it is sometimes necessary to recount some of the facts which the court had before it when it pronounced the rule in question. For this purpose, counsel, in his argument in a subsequent case, may not only read the rule of law stated in the published opinion in the former case but may also state the facts before the court therein. Cashwell v. Fayetteville Pepsi-Cola Bottling Works, 174 N.C. 324, 93 S.E. 901; Harrington v. Commissioners of Town of Wadesboro, 153 N.C. 437, 69 S.E. 399. Counsel's freedom of argument should not be impaired without good reason, but where both the impropriety and the prejudicial effect are clear, the court should act.

It is not permissible argument for counsel to read, or otherwise state, the facts of another case, together with the decision therein, as premises leading to the conclusion that the jury should return a verdict favorable to his client in the case on trial. That is, counsel may not properly argue: The facts in the reported case were thus and so; in that case the decision was that there was no negligence (or was negligence); the facts in the present case are the same or stronger; therefore, the verdict in this case should be the same as the decision there. Forbes v. Harrison, 181 N.C. 461, 107 S.E. 447; State v. Corpening, 157 N.C. 621, 73 S.E. 214, 38 L.R.A.,N.S., 1130; 53 Am.Jur. Trial, § 493; 88 C.J.S. Trial § 171. This is but an application of the rule that, in his argument to the jury, counsel may not go outside the record and inject into his argument facts of his own knowledge, or other facts not included in the evidence. See Hamilton v. Henry, 239 N.C. 664, 80 S.E.2d 485. The ultimate test is whether the reading from the reported case "would reasonably tend to prejudice either party upon the facts" of the case on trial. See: Conn. v. Seaboard Air Line R.R. Co., 201 N.C. 157, 159 S.E. 331, 77 A.L.R. 641; Forbes v. Harrison, supra. An examination of passages read to the jury by counsel in his argument in the present case compels the conclusion that the reading of them could contribute little, if anything, to the jury's understanding of the doctrine of sudden emergency in the law of negligence. These passages do not meet the test of permissibility. We do not imply any criticism of those decisions or any statement therein.

It is alleged in the complaint in each case now before us that Glover was the owner of the automobile operated by Anders. This is admitted by the answer of each defendant in each case. By reason of G.S. § 20-71.1, these admissions in the pleadings are sufficient to take the case to the jury for its determination upon the issue of whether Anders, at the time of the collision, was driving this vehicle as the employee or agent of Glover and in the course of such employment. Whiteside v. McCarson, 250 N.C. 673, 110 S.E.2d 295; Johnson v. Wayne Thompson, Inc., 250 N.C. 665, 110 S.E.2d 306; Travis v. Duckworth, 237 N.C. 471, 75 S.E.2d 309. Consequently, though there was no other evidence of agency, Wells v. Clayton, 236 N.C. 102, 72 S.E.2d 16, it was necessary for the court to submit to the jury, as it did, in each case, the issue, "Was the defendant Doran Anders operating the 1963 Plymouth automobile owned by the defendant Glover Motors, Inc., at the time herein complained of as an agent of the defendant Glover Motors?"

The court instructed the jury:

"[I]f you find these to be the facts, that is that Anders had the car in order to try it out in anticipation of a purchase, that there was no agent of the defendant Glover Motor Company with him at the time of the accident, then the Court charges you as a matter of law that the relationship between Anders and Glover Motor Company was that of bailor and bailee, and not that of principal and agent, and it would be your duty to answer this issue NO; otherwise, you would answer this issue, YES."

That instruction was proper, there being no evidence of agency other than that which was supplied by G.S. § 20-71.1 and the above mentioned admissions in the pleadings. Chappell v. Dean, 258 N.C. 412, 128 S.E.2d 830.

The jury, however, did not answer the issue as to the agency of Anders for Glover, having been instructed not to do so if it answered the issue as to Anders' negligence in the negative, as it did. Since the cases must go back for a new trial because of the improper argument of counsel upon the issue of whether the plaintiffs were injured by the negligence of Anders, and since it has not been determined whether Glover would be liable for such injury on the principle of respondeat superior, the cases must also go back for new trials as to the defendant Glover.

The third issue submitted to the jury was, "Was the plaintiff injured by the negligence of the defendant Glover Motors, as alleged in the complaint?" The court instructed the jury that it would answer this issue, if it came thereto, in the same way that it answered issue No. 2 relating to the agency of Anders for Glover. Thus, the court excluded from consideration by the jury the contention of the plaintiffs that Glover, itself, was negligent, independent of any negligence by Anders in that Glover permitted Anders to drive its automobile when Glover knew, or in the exercise of reasonable care should have known, that the brakes on the automobile were defective. Although the jury did not come to and so did not answer this issue, it appears probable that upon the further trial of these actions the question will again arise as to whether the alleged independent negligence by Glover should be excluded from the jury's consideration upon the third issue. Consequently, we deem it advisable to examine the correctness of this ruling upon the evidence contained in the present record.

When a prospective purchaser of an automobile is permitted by the dealer to take the car and drive it for the purpose of trying it out to determine whether he wishes to buy it, no representative of the dealer accompanying him, the relationship between the dealer and the prospective purchaser is that of bailor and bailee. The bailment is one for the mutual benefit of the parties.

G.S. § 20-124 provides that every motor vehicle "when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop such vehicle * * * and such brakes shall be maintained in good working order." The purpose of this statute is to protect from injury all persons using the highway, both occupants of the vehicle in question and others. With reference to this statute, Rodman, J., speaking for the Court, in Stephens v. Southern Oil Co., supra, said:

"Notwithstanding this mandatory language, the statute must be given a reasonable interpretation to promote its intended purpose. The Legislature did not intend to make operators of motor vehicles insurers of the adequacy of their brakes. The operator must act with care and diligence to see that his brakes meet the standard prescribed by statute; but if because of some latent defect, unknown to the operator and not reasonably discoverable upon proper inspection, he is not able to control the movement of his car, he is not negligent, and for that reason not liable for injuries directly resulting from such loss of control."

The duty imposed by this statute rests both upon the owner and upon the driver of the vehicle, though knowledge of a defect, or negligence in failing to discover it, on the part of the one would not necessarily be imputed to the other. A bailor who knows, or by a reasonable inspection of his vehicle should know, that its brakes are defective and unsafe, is negligent in permitting that vehicle to be taken from his premises and driven upon the highway by a bailee and may be held liable in damages to a third person injured by the operation of such vehicle, if such defect in its brakes is the proximate cause of such injury. Hudson v. Drive It Yourself, Inc., supra. See also Austin v. Austin, 252 N.C. 283, 113 S.E.2d 553.

The bailor, even though a dealer in second hand automobiles and engaged in the repair of automobiles, is not an insurer of the brakes upon a vehicle held by him for sale and delivered by him to a prospective customer for a trial drive upon the highway. Hudson v. Drive It Yourself, Inc., supra; Stephens v. Southern Oil Co., supra. The burden is upon the plaintiff to prove that the bailor, at the time he allowed the vehicle to leave his possession for such purpose, knew, or in the exercise of reasonable care in the inspection of the vehicle should have known, that the brakes were defective. In the record now before us there is no evidence of such negligence by Glover. The doctrine of res ipsa loquitur does not apply to a brake failure several hours and many miles after delivery of the car to the bailee. See Hudson v. Drive It Yourself, Inc., supra. In the absence of such evidence, it was not error to refuse to submit to the jury an issue as to negligence by Glover, separate and apart from negligence by Anders, its alleged agent. Wells v. Clayton, supra, 236 N.C. at page 105, 72 S.E.2d 16. That is, there was no error in the instruction limiting the jury's consideration upon the third issue to the question of Glover's liability upon the basis of respondeat superior.

Wilcox v. Glover Motors, Inc., et al.: New trial.

Wilson v. Glover Motors, Inc., et al.: New trial.