Hearne v. Smith

208 S.E.2d 268 (1974) 23 N.C. App. 111

Joe Chris HEARNE, Jr.
v.
Clarence Odell SMITH.

No. 7419SC625.

Court of Appeals of North Carolina.

September 18, 1974. Certiorari Denied November 8, 1974.

Ottway Burton, Asheboro, for plaintiff appellant.

Henson, Donahue & Elrod by Daniel W. Donahue, Greensboro, for defendant appellee.

Certiorari Denied by Supreme Court November 8, 1974.

VAUGHN, Judge.

Defendant-movant relies on plaintiff's allegation that plaintiff was the owner of and passenger in an automobile which was negligently driven by Walter Ivey Smith so as to proximately cause a collision and resulting injury and damage to plaintiff. Defendant then moves for summary judgment on the grounds that as a result of plaintiff's capacity as owner and status as passenger, Walter Ivey Smith's negligence is imputed to him, thereby making plaintiff contributorily negligent as a matter of law.

"In North Carolina, negligence is imputed to the owner-occupant of an automobile according to the following test: "Did the owner, under the circumstances disclosed, have the legal right to control the manner in which the automobile was being operated—was his relation to the operation such that he would have been responsible to a third party for the negligence of the driver?'"

Etheridge v. R. R. Co., 7 N.C.App. 140, 144, 171 S.E.2d 459, 462. Also see Shoe v. Hood, 251 N.C. 719, 724, 112 S.E.2d 543, 548.

Here, although plaintiff may not have had physical control, he did have the legal right to control, and that is the test.

The application of "imputed negligence" to contributory negligence has been upheld in cases to bar recovery by an owner-occupant. Etheridge v. R. R. Co., supra, 7 N.C. App., at 145, 171 S.E.2d, at 462. Such an application to the present case establishes the contributory negligence of plaintiff, owner-occupant, and thus bars any recovery by plaintiff against defendant.

The foregoing necessitates our conclusion that the movant did satisfy his burden of showing that he was entitled to judgment as a matter of law.

Pursuant to G.S. § 1A-1, Rule 56(e), "an adverse party may not rest upon the mere allegations or denials of his pleading" and his response "must set forth specific facts showing that there is a genuine issue for trial." If the adverse party fails to do so, summary judgment shall be entered against him.

Following defendant's motion for summary judgment in the case at bar, plaintiff, as the adverse party, did not meet his burden of coming forward with specific facts showing that there was a genuine issue for trial.

The judgment granting defendant's motion for summary judgment is affirmed.

Affirmed.

CAMPBELL and PARKER, JJ., concur.