*1 TERM, Dempsey. when a funeral home he married. Thereafter he employed by company company. a construction and for lumber On worked for he was issued, the date on the warrant was February 24, employed. of the trial he was Defendant working; at the time sober, when “he is all but, drank intoxicants to excess frequently beat his wife and accused her of in- intoxicated, sweet.” When he April contributed to his August Between 1964 and fidelity. spent Ten dollars of this sum he for support only $25.00. wife’s her medicine. guilty charged. prison From a jury
The found defendant usual condition in such defend- suspended upon cases, sentence, appeals. ant Attorney Bruton and Assistant
Attorney T. W. General General State. Harrell Bernard A. appellant. Melton Alexander Elreta defendant evidence; offered no State’s evi- Defendant Pee Cueiam. light it, Kelly, in the most favorable to State v. dence, considered plenary withstand defendant’s mo- 177, 90 S.E. when charge, contextually, fully considered tion for nonsuit. 1-180. The has found the with G.S. facts de- complies being law, no error in there he must abide the fendant, and, results of his trial.
No error. BRANCH, ESTATE OF DOUGLAS M. W. BRANCH Executrix JESSIE DEMPSEY WALTER LeROY DELHART SIMONS.
(Filed December, 1965.) 52—
1. Automobiles § light must be considered in the evidence most While favorable nonsuit, plaintiff employer on motion to to hold .seeks liable respondeat superior, the doctrine the evidence must under be sufficient employee negligent permit the inference and acted under impose liability upon employer. such as to circumstances IN THE SUPREME COURT. 'v.
BRanci-i *2 2. Automobiles 54f—§ prima ownership proof of The effect of G.S. is to make 20-71.1 facie change proof agency, that of venue of and a statement in a motion collision involved the movant was the owner of one of the vehicles jury, present agency raises question statute but the of sufficient to the negligence, the presumption owner liable to hold the of and order no against competent the owner that the must introduce evidence proximate negligent the cause and that such was driver was injury. the Agent Principal 4— § 3. prove alleged incompetent fact of to the of the are Statements agency. 54e; render 31— G.S. does not Evidence 20-71.1 § 4. Automobiles § competent principal. post rem admission in the driver of vehicle involved no evidence that the the There was route to the at the scene of the collision or en made statement collision hospital, patrolman driver the hos- testified that he talked to the at but a police pital that made a at station and the driver statement and later the in a certain manner as he was at- that accident occurred to the effect tempting the driveway. highway was turn from the into a There to make a left prima arising by. except agency virtue G.S. case no evidence of facie part gestee was of the res and any statement not Held: The driver’s 20-71.1. discharge being was made in the the statement no that there authority vehicle, upon owner of the state- driver conferred prove- negligence incompetent owner to of the driver ment I driver. 5. Same— (e) nor has G.S. 20-166.1 the effect 20-166.1 nor G.S. 20-166 G.S. Neither subsequent rendering driver of a vehicle made registered competent owner vehicle in suit accident the to proximate prove negligence cause. 41h—§ Automobiles 6. Testimony that when at- to the effect he of the driver of a statement highway private driveway tempted into a from the a left turn to make gear stalled, and that while the truck was motor of the truck lunge immediately motor, causing forward into it to start undertook the opposite direction, approaching path from the held sufficient of a vehicle negligence, being jury on of the driver’s it the issue submitted to the to be driver in fact whether the made the statement and to determine for the correctly inference of what occurred whether the recounted it whether negligence drawn therefrom. should 55.1— Automobiles § 7. good permitting condition that vehicle Evidence conclusion suit, prior approximately to the collision vehicle, that it was involved 30 minutes immediately and that thereafter defendant’s in a collision with except damaged salvage, it was about its front so of no value that support finding damage amply that the the result of sufficient to nn ' collision. TERM, 1965. Branch
8. Death 1—§ approximately tending the colli- minutes before Evidence to show that condition, physical good that sion in was in health and sound suit testate dead, strapped immediately driver’s found after collision he was chest, car, injuries face, seat of his steering hanging about, about his shoulders with upward, his head was wheel of was bent his vehicle and, position, forward held in would fall his chest unless support was the held sufficient to testate’s death the inference that result of the collision. Pleadings 9. 25—§ power permit discretionary The trial court has an amendment typographical a motion to correct an asserted error. Same; Evidence 44—§ expert may testify solely A medical as to the cause death based *3 upon purely superficial body expert examination of the whom the one seen, testimony upon had not theretofore since must be based facts within upon hypothetical knowledge brought his own out in evidence facts em- questions. proper in bodied 1; 24—
11. Death Evidence § § competent copy prove A in certified of a death certificate is occurred, death, place identity the fact of the time and where it of the bodily injury death, deceased, or disease which was cause of body, relating disposition death, and other matters but of the state- repeated by therein ments from unidentified sources or summarized incompetent in evidence. G.S. 130-73. coroner are 12. Trial 17—§ entirety portions is offered in a document its of it contain Where matter, ruling excluding incompetent the court it from evidence will held for error. part dissenting part.
Parker, J.,concurring in in Denny. Parker, G.J., joins opinion in J.
Sharp. part J., concurring dissenting part. in in plaintiff Bundy, J., from by February 1965 Session of Appeal BERTIE. wrongful Douglas an action for the death of This is Dr. M. Branch, Secretary-Treasurer of the North Carolina Baptist General damages Convention, Dodge and for to his 1961 station wagon, State resulted from a alleged to have between both collision station wagon and a Ford truck owned the defendant Simons and Dempsey. the defendant driven complaint alleges; February substance, On 1 ap- at driving Dr. p.m., Dodge 1:30 Branch was his 1961
proximately sta- IN SUPREME COURT. THE Branch Highway 13, wagon right S. southwardly tion and on his side U. At same time approximately half a mile north of Ahoskie. northwardly being driven 1956 Ford truck owned Simons was Dempsey performance highway by defendant negligently truck Dempsey duties as of Simons. drove the a defective con- among things, other when it was in that, he drove it a left warning, attempted to make and, suddenly dition and without path directly into the private driveway turn into a and drove inevitable, a collision so near as to make Branch vehicle when was re- wagon with the thereby causing truck and station to collide damaged. wagon station was killed and his sult that Dr. Branch permitted Dempsey negligent that he defendant Simons was also incompetent when knew to be to drive his truck condition. truck to be in defective and careless driver and the identical, except separate answers are The defendants filed negligence. Each allegations of admits that as noted. Each denies all which bore 1963 North Carolina owner of truck Simons was the on 1 admits that Dr. died plate license 5349-RC. Each qualified duly executrix February 1963, and that the is the place question, High- U. that, Each at the S. of his estate. admits running north highway from to south way paved 13 is a two lane for a considerable distance straight, level, and unobstructed and is dividing lanes of with a white center line the two direction either allegations complaint except denies all other traffic. Each advised that there was a collision answer admits “he is Simons on Ahoskie, Carolina, February near North Highway 13 on U. S. ve- this defendant and another motor involving a truck of *4 negli- defense, contributory a further pleads, answer hicle.” Each .adequate operating his vehicle without Dr. Branch gence by greater speed proper lookout, at a than keeping a brakes, without circumstances, having without his prudent under the lawful and was using applying without control and proper under vehicle brakes thereon. County, in Wake re- originally instituted and was action was The by motions County for trial on filed the defendants Bertie to moved Both except as noted. motions were offered identical were stated: Each by plaintiff. alleged wrongful said “(1) death, is an action That this brought Branch, Jessie W. Executrix of the being by action Branch, alleged and said Douglas M. cause of action Estate occurring on day collision an automobile first out of arose County, on Carolina, in Hertford North February, point approximately five-tenths of a 13 at mile Highway U. S. TERM, Beaítch: North Car- County,
north of the Town of in Hertford Ahoskie being operated olina; that said an automobile collision involved by traveling truck owned alone, the deceased who was and a * * * * * operated *. [Dempsey] [Simons] n K* # 4C* “(4) alleged indicated, That as herein this is action wrongful deceased met dispute death and it is not in * * sup- (Emphasis death as a his result the accident plied.)
Dempsey further motion: stated
“(7) the two ve- That as result of the collision between per- hicles referred defendant sustained serious above, * * * injuries assert a counterclaim for sonal intends to [and] * * deceased; personal injuries against the estate each defendant When these motions were offered in evidence motion, paragraph amend four of his permitted, objection, over ground on changing “now,” the word “not” to the word original typographical plain- word was a Counsel for the error. originally jury paragraph tiff then read to the four each motion written. age, tending show plaintiff then introduced evidence earning expectancy health and life
employment, capacity, habits, wagon im- damage station and its value Branch, the done to his Dr. introduced evidence and after the collision. also mediately before She tending to show: p.m. on the was last seen alive a few minutes after 1:00
Dr. Branch good physical was in health and death, at which time he day of his alleged p.m., 1:30 at the scene approximately At condition. severely driver’s seat of his body was found collision, his was no wagon safety belt fastened. There damaged with the station upward dash was bent and the steering wheel of life. The indication on driver’s side. Dr. was broken The windshield was dented. upon chin there was hanging chest, with his Branch’s head damaged. hands were had been His face and his nose upon his blood vehicle removing body from the him. In hanging down beside that it would not fall about. necessary his head so support it was pro- approximately p.m., 2:00 hospital, at arrival at the Upon examining physician. There were abrasions by nounced dead grated right shoulder and bones chest, bruise upon *5 was moved. arm when it right the light rain. There was no intersection from a was wet highway The private alleged collision but drive- the point highways at the being residential sides, from both highway into the ways led IN THE SUPREME COURT.
Branch headed south stopped, section. The Branch vehicle was found end, right badly damaged, the front its side of the road. It was right on its bumper hood The truck was fender, and were bent. being feet from the road, center of its front end about 10 the right right right wheel, bumper front, fender, Branch vehicle. The damaged. composed of broken Debris, were and hood the truck (Branch) lane glass lay highway on the the southbound dirt, investigating highway when the was at scene Dempsey of traffic. after He approximately 15 minutes the collision. patrolman arrived, hospital body with the the ambulance rode from there to There no evidence that he the ambulance crew. Dr. Branch and en collision or route at the scene of the made hospital at him at and later The talked to hospital. patrolman stating which of these conversations Without police station. long accident, the made, patrol- or how after the was the statement objection as testify, by Simons, follows: permitted to over man was what and here what Dempsey happened, “I asked Delhart on headed north U. S. and was stated he was he told me. He private turn making left-hand into the drive- process of in the making was on him. Said he left- way and the truck stalled again and it caught, crank his truck he tried to turn, hand again. and cut off lunged forward happened? “Q. what Then caught, lunged forward, again, cut off then
“A. It vehicles struck.” that what instructed Dempsey The Court told pa- Dempsey was be considered
trolman and not as to ruling object did not To this and she Simons. does not assign it error. Dempsey nor Simons was called as
Neither a witness. The plaintiff registration evidence introduced certificate for the truck, showing registered name of Simons, was ownership of the being by Simons admitted truck answer of each defendant. of the coroner’s exception report, below, With the mentioned no other to show existence of offered the relation of principal Dempsey, Simons and between agency, which any, driving or the the truck. driving north Highway witness Brauer on The 13. He observed road, on side of being truck his left attention attracted rising. truck then went backward a steam few feet and he ob- wagon station the Branch for the first served time. There was noth- *6 TEEM, 1965. Dempsey. Braitch
ing between vehicles, damaged. the two both of which badly were The steam which he coming observed was from the truck. plaintiff
The also offered in copy evidence certified of the death certificate and a copy report. certified objection the coroner’s On both documents plaintiff put were excluded. The evidence a sub- poena served on the coroner which showed that he was in hos- pital. signed
The death certificate, coroner, among contained, other things, the statement: * * * by: (a) Broken neck and other “Death Was Caused * * *
bruises of chest and abdominable cavities. [sic] Due * * * (b) Auto wreck on Highway Ahoskie, 13 near N. C. Hit * * * head-on with truck. passenger Deceased car ran into making truck left turn.” report coroner’s contains the statement: “Cause of death: Cavity.” It further con- Neck,
BROKEN INTERNAL Breaks in Chest tains findings the coroner’s statement of Dempsey was driv- ing truck, for which driving it, he was and the dam- age done to the Branch It also purported vehicle. sets forth state- ments the defendant to the coroner with reference to in which driving the manner he was truck immediately before alleged collision. judgment From a of nonsuit as to each defendant, entered at the plaintiff’s plaintiff evidence, close of the appeals, assigning as granting of error the the defendant’s motions for such judgment, copy of the certified the exclusions of the death certificate and of the portions copy above of the certified of the coroner’s report, the ex- proposed testimony by physician clusion of certain who examined body and the action of Dr. Branch’s the court in permitting each de- change fendant to amend his motion for of venue, as above stated. Douglass Toms, Douglass Jordan and and John Jenkins, R. appellant. Jr., for Broughton Cooke, Cherry Cherry, Broughton Pritchett & & & Simons. defendant Jones Jones, Dempsey. Jones & defendant Upon a motion for J. nonsuit Lake, together all with reasonable plaintiff, inferences to be drawn therefrom, must be taken to interpreted be true must in plaintiff. light most favorable Coleman v. Colonial Stores, Inc., 338; 259 N.C. 130 S.E. 2d Ammons Britt, 256 IN THE SUPREME COURT.
Branch by Dempsey, such motion However, S.E. order to survive to sustain the evidence, construed, when so must be sufficient *7 negligence by the proving burden rests upon plaintiff the of proximate negligence such was the Dempsey defendant and that station damage cause of or to the the death of Dr. Branch of the so wagon by Simons, evidence, or both. To survive such motion the truck driving was Simon’s construed, Dempsey must also show that impose liability upon legal under such Simons circumstances to negligence. Dempsey’s for
Each in that was owner defendant his answer admits Simons the registration of truck copy of the Ford truck. A certified of the the Department the Motor intro- with North Carolina of Vehicles was in so plaintiff duced evidence the and shows. damages provides in an action in-
G.S. 20-71.1
that
to recover
for
injury
arising
or
the
of a
property
person,
to
for
to or
death
out
involving
vehicle,
of an
or
a motor
“Proof of the
accident
collision
registration
person,
in
of any
firm,
of motor vehicle
the name
or
any
action,
prima,
of
such
corporation, shall for the
facie
being
and
such motor
was
ownership
evidence of
that
vehicle
then
a person
and
the control of
for whose conduct the
operated by
under
legally
for the owner’s
and within the
responsible,
benefit,
owner was
(Emphasis added.)
employment.”
Proof
and
of
of
course
admitted
pleadings,
prima
which is here
the
also
ownership,
Hartley
Smith,
N.C.
proof
agency.
of
tiff’s evidence driving and agent of Simons he was course truck, legal impose upon so as to Simons employment for driving proximate such which was the by Dempsey damage wagon. Dr. Branch or of station death of cause Sasso, It, 116 S.E. 341. course, re- Howard show, by competent plaintiff against for mains negligent. the driver that Simons, elementary negligent indeed, per- is, It employment an act in the course negli- such formance person, cause of the death of third prin- proximate is the gence damages any showing without master, negli- liable cipal, TERM, However, equally it is himself. gence part principal, on the against either recovered judgment may not be well settled that compe- until the introduces evidence principal or the support finding of each defendant sufficient to tent depends. liability of that defendant which the fact for death of un- agent, Branch, is not liable Dr. Dempsey, the operation (1) negligent the truck and less proximate cause of the death. Unless (2) negligence was the competent evidence, Dempsey, is in the record there facts of nonsuit these essential prove both of affirmed. Dempsey should be is not liable the death of principal, Dr. Branch
Simons, (1) of the collision the relation between at the time Simons unless responsible Simons legally such as to make Dempsey was operation in the acts and omissions control of the Dempsey’s *8 operation negligent was such (2) Dempsey control, truck, and proximate cause the (3) negligence was the death. Unless competent against evidence, Simons, record to prove is the there judgment against of nonsuit facts the these essential Simons each of affirmed. should be there sufficient evidence of G.S. 20-71.1 to support, the force
By
plaintiff against
finding for the
a
Simons on
compel,
but not
that is
full
facts, but
effect of this
these essential
first of
statute.
Simons,
recover from
may
she must
plaintiff
prove, by
Before
him,
against
negligent
was
competent
evidence
proximate
cause
negligence was
death.
that his
only Simons,
to sue
the principal,
had elected
as
plaintiff
If the
be obvious that she could
done,
only
it would
recover
have
might
she
competent
against him,
as
evidence,
to show
these
the basis
upon
Dempsey,
first sued
agent,
if she had
facts. Even
basic
three
against him,
negligence
the matter of his
judgment
a
had obtained
subsequent
judicata
a
res
action by
deemed
her
not be
would
Griffin, 221
Pinnix v.
principal.
348,
Simons,
S.E.
against
Crafts, 175 N.C.
It there admitting driver statement of the made immedi- might collision and so well have been ately after the admitted as ground employer part on the that it was Furthermore, Evidence gestee. Jur., Am. examination res § in that case discloses that there the himself, the record negligent Thus, act of the driver. as to the testified Anderson competent against ample evidence, the owner-prin- case there negligent finding that his cipal, support that such *9 proximate plaintiff’s cause of the injury, was the negligence so the re- principal nonsuit as proper. of to the was of the versal The support proposition the decision does that such judg- Anderson a should be reversed when principal as to the there is ment against the negligence competent but no such of evidence com- though against principal. situation, the In the latter petent the principal may may liable the not be so held. be held This is not in of, respondeat an erosion the doctrine with, superior. or conflict apply against a to that doctrine simply where, refusal as It is the is no evidence of a fact which is essential there element principal, of the doctrine. case, Barnhill, J., again after the Anderson later years C.J.,
Two Hartley Smith, Court, supra, for the said with refer- speaking to 20-71.1: ence G.S. TERM,
BRANCH designed to, does, was and intended and establish Act “[T]his proof ownership a of evidence which facilitates and rule collision cases where one of the vehicles agency automobile It was by person other than the owner. not ‘enacted operated designed proof unnecessary,’ proof nor does and to render prima registration ownership or make out a case for the 'facie negligence. Neither is it jury the issue of sufficient ‘to send on ‘support finding jury,’ favorable to plaintiff the case (negligence) issue,’ or support first ‘to a finding under that * * * negligence. on the issue against a defendant’ it is statute, necessary still party constat “Non negligence allege agency both to aggrieved pleading trial.” both at the prove to denies Dempsey in his answer that was driving defendant Each any collision occurred between denies that truck, truck and allegations vehicle, all by denies the Branch either de- the death of Dr. Branch denies that and the damage fendant to negligent wagon resulted from act or station omission defendant. either Dempsey driving that was testified witness truck. There
No present was at testimony that he the scene and that he had suf- hospital for which he was taken to the cuts some treated. fered testified to investigating patrolman statements made to him Dempsey driving effect that Dempsey to truck. change venue, introduced evi-
motion although entirety, the record indicates in its that dence jury, was read to the Dempsey thereof paragraph fourth stated that vehicles, between the two operating was a collision he was there he, himself, personal and that the collision sustained truck in- he then intended to for which file counterclaim. juries This is jury justify finding, Dempsey, sufficient evidence driving the Dempsey was truck. however, such evidence as not, Simons, as the It is court Dempsey’s with reference to instructed statements below Simons, As the fact that driving patrolman. finding alleged only basis for a agency, is the truck there be Extra-judicial of it. proof alleged other statements ing no distinguished testimony him, from are not admissible agent, alleged principal prove agency. Sealey Insurance 744; 774, 117 S.E. Commercial Solvents v. Co., Johnson, *10 2d 716. 237, 69 S.E. 235 N.C. . IN THE SUPREME COURT. [26®
BeaNch v. own. in' evidence Simons’ However, the. also introduced collision stated: change motion for of venue which Simons “[S]aid was- deceased who being operated by involved automobile who lived in traveling by a truck this defendant alone and owned a co-de- operated by Dempsey, and one Delhart County Hertford by County.” This admission fendant who also resides Hertford permit finding a against him, as to sufficient, defendant Simons bring driving therefore, truck into Dempsey and, was statutory making prima proof that provision such operation the facie driving the truck was the Dempsey Simons agent. such employment as course of plaintiff’s defendants, admissions In addition to these vehicles, two found physical as condition evidence nothing them, plus the testi- highway with between apart on the feet saw truck in the mony witness Brauer that he southbound rising back it, steam from saw it roll traffic, observed lane of Branch vehicle and noted that both immediately observed the were justify finding damaged, ample evidence severely collided. two vehicles course, offered no evidence view of the defendants,
The present motions for of nonsuit. granting of their any evidence whatever of there is no Dr. record wagon. driving of his station After the collision, in the right highway. side of the center was found on its line vehicle right on his side of the center truck was found line. The The debris its left of the center line before it rolled was observed on back. patrolman investigating highway they testified that after had Dempsey collision he talked with scene of the left the Dempsey, process making was in turn he, left into stated that whereupon driveway stalled, and the truck private “tried to again caught, lunged again and it forward and cut truck off crank his * * * struck.” Dempsey, himself, then the vehicles objection by Upon a witness. Simons the court as admitted called testimony by Dempsey this statement but stated that it was only. against Dempsey ruling This is not now to be considered as- signed as error. been
Assuming by Dempsey, statement to have made driving of the truck had ended and he had after his left the made appear It does not from the record the collision. whether scene of during hospital subsequent the course of a at the in- it was made station, appear. the time of which does not police at terview nothing any authority given record to indicate There There is Dempsey to make statement. no Simons *11 745 TERM, 1965. Dempsey. Beanch v. In absence
any 20-71.1. agency except whatever virtue of G.S. by n motor driving a act of from the mere agency, apart evidence of deemed agency must be another, registered vehicle the name of a final brought vehicle to has to have terminated when the driver conversa- any he had stop and did before has left it. This patrolman. tion with the Stacy, 675, 802, C.J., S.E. Railroad,
In Hubbard v. 203 N.C. speaking Court, for the said: employee says what an or
“It is the rule with us that within being him presently an act done relative to part a agency employment, is admissible as res or or evidence, either for gestos, may and be offered says af- employee or what the principal employer, or but past though occurrence, narrative of a terwards, merely matters, continue as to other or employment may agency, or competent hearsay and is not generally, employer.” or principal in support cited of this authorities there well to the
In addition Co., Teague v. Power 258 N.C. 129 S.E. see: rule, established 829; S.E. 2d Hester Harris, 220 507; Howell 2d 794; Stansbury, North Caro- S.E. Lines, 219 N.C. Motor Jur., Evidence, 169; 20 Am. Evidence, lina § § of the law as to the admissibility statement a correct If this employment principal general by the con- whose by one a statement statement, applies with even more to force the time tinues to for the sole any, driving if employment, whose one driving, and whose single trip employment, upon vehicle motor was made. statement before terminated investigating highway to the question making the con- acting pursuant any authority to not Dempsey was patrolman, duty performing imposed no He him Simons. upon ferred upon law Simons. an accident vehicle, involved in of a the driver requires 20-166
G.S. any person, stop, render death to injury or resulting collision or information specified give certain assistance reasonable but the statute does with, collided of the vehicle driver or occupant driving or what he was as to how by him a statement require not collision. caused in a colli- vehicle involved any driver of requires 20-166.1 G.S. give notice of person, death of injury resulting sion, Patrol) Highway (in case to officers police collision l'HE IN SUPREME COURT.
Branch within 24 hours report to make a written Department of Motor upon Vehicles supplied form by it. These are duties which the law imposes upon driver, In performing the owner. them, he did, Dempsey acting was not on behalf of Simons but for him- self. Furthermore, investigating whatever statement he made to the *12 patrolman leaving after of scene the collision was not shown to have been in performance made statutory of these is duties. It also to be noted that this provides reports required statute that the by it of the driver any “shall not used in be manner as evidence, or any other purpose any in civil trial, criminal, arising out such collision” in except respect not involved here. (e)
G.S. 20-166.1 duty makes it the Highway the State Patrol to investigate all collisions required reported to be it by this sec- tion, requires investigating report officer to in make writ- ing to the Motor Department, report open Vehicle which inspec- tion by public. However, provision this statute contains no re- quiring a driver involved in such a collision to any make statement to the officer. cannot,
It therefore, be said that, by virtue of these statutes, one registers who the title of a motor in thereby gives vehicle his name authority blanket may to whomsoever subsequently drive it to make statements as to driving the manner of his so as to such cause state- competent registered ments to be evidence owner as vicarious negligence admissions of which is legally he liable.
Apart extra-judicial from this Dempsey, no there is evidence as to how the collision occurred or as to the manner in is, being operated prior either vehicle was thereto. There therefore, no evidence as the defendant negli- Simons of gence by the driver of his Consequently, truck. of non- proper. suit as to was Simons
As to Dempsey, patrolman the defendant his statement permit sufficient to an Dempsey inference that undertook to start the gear stalled truck it was in and thereby lunge while caused it to immediately forward in front of the Branch vehicle. This would con- operation stitute in the truck. It would, course, be for the to determine whether fact made such statement, correctly occurred, whether, whether it stated what it, However, upon from such inference should be drawn. a motion his statement must deemed for nonsuit true and all reasonable inferences therefrom favorable to the must be drawn. wagon evidence tends to show that the station plaintiff’s The good approximately was in condition prior Dr. Branch 30 minutes immediately thereafter was to the collision and observed to be dam- TERM, Beanch salvage.
aged except for about its front so that it value was no dam- finding The amply permit sufficient to age collision between the Branch vehicle was the result of the negli- caused truck, proximately which collision was gence of Dempsey. plaintiff’s approximately 30 evidence tends to show that health and good
minutes before the collision Dr. Branch physical immediately sound after the condition. It tends to show that having dead, strapped seat, collision he was found the driver’s injuries sustained about chest and broken face, shoulders and right steer- bones the area of the arm. It tends to show that the ing upward, wheel of his vehicle was bent dash was dented the windshield broken out where head would have struck if he show when thrown forward it. It tends to hanging and, found his head- was forward his chest unless held support position, would fall about. This is sufficient evidence to such inference that his death was the result of the collision. Whether question is, course, inference should be drawn to be determined *13 judgment jury. purpose nonsuit, For the of the it must be by the drawn. in Dempsey, there is the record evidence
As to the defendant negligent driving he was in permit jury sufficient to to find that proximate such was the cause of a colli- truck, of the that and driven by between the truck the vehicle Dr. Branch and sion a result of such collision Dr. came to his death and that as being damaged. true, jury That it is for the his vehicle to de- granting these were the facts. The of the motion for termine whether Dempsey was, as to the defendant therefore, of nonsuit error. permitting in each defendant to was no error amend his mo-
There ground of change typograph- venue on the correction of a tion North McIntosh, Procedure, Carolina Practice and See ical error. 1283. Ed., 2d § relating error to the exclusion of assignments proposed tes- The examined body hospital who at the physician are timony “purely superficial that he made a exam- He testified without merit. prior he had not seen the deceased to his ination,” and that death. express opinion him to an as to qualify the cause of did not This findings. questions of his own The were upon the basis death on basis of an permit hypothesis. him to do so form to proper injuries the nature of the witness not recite was to They did opinion. stating such forming “The rule is that consider opinion upon facts within his own knowledge, base his ‘must expert 748 IN THE SUPREME COURT.
Branch re-
of certain facts
hypothesis
finding by
”
400, 413,
Co.,
Sales
259 N.C.
question.’
cited
Service Co. v.
The of error relates to the copy a certified certificate, the death copy evidence of certified report. portions certain of such Since report of the coroner’s against Dempsey, the com- must be a new trial of the action there petency should be determined. “Any death, a birth or provides: copy of the record of
G.S. 130-73 evi- Registrar, prima shall be properly certified the State facie places of the facts therein stated.” dence all courts opin- suggested provide that the statute does not It has been shall appearing prima or conclusions a death certificate ions Co., proof of the cause of death. Rees v. Insurance 216 N.C. facie 428, 154; Durham, S.E. 2d 2d Blalock v. N.C. 5 S.E. necessary cases was it for the court to determine In neither of these may to which a death certificate be introduced in extent, any, death. In Flintall v. Co., show the cause of Insurance evidence to brought on a policy suit life insur- S.E. certain excepted death from causes. The death certificate ance which report who, present of the coroner case, attached and the the cause of death was “unknown.” physician, stated was not It interposed objection was appear that the introduction of does not This said: Court defendant intro- these documents. “[W]hen of death proof plaintiff, filed in evidence and the duced death, they were sufficient to show certificate of coroner’s was undetermined.” death cause of permit appears statute to be to of the the death death, as evidence of the fact of introduced the time to be
certificate occurred, identity deceased, of the bodily where it place disposition death, cause of which was the or disease injury *14 relating matters to the death. other We think it body possibly Legislature compe- to make the certificate the was not might be stated thereon. The death cer- of whatever evidence tent contains statements from present in the case uniden- offered tificate Branch how the collision between the vehicle and as to tified sources signed who it did not see the acci- The coroner occurred. the truck witness, he could not have related such called as he been dent. Had competent evidence reason of its be- hearsay. not become It does signed by in the certificate death him. or summarized ing repeated portions entirety of it were was offered its document the Since excluding it. court did not err admissible, the not TERM, Dempsey. exclusion the cer- reason, For the was no error in the of same there copy report portions tified of thereof the coroner’s of those report portions offered in- were after the was excluded. These entire inquiries cluded as to the coroner “learned” from statements what conclusion what persons, to unidentified and the coroner’s as to the coroner deceased knew with to the collision. Had the reference been as a him to these matters would not witness, testimony by called as incorporated when They
have been admissible. do not become so into report. his official
Reversed as to defendant as
Affirmed to the defendant Simons. Concurring dissenting part, part. J. PakiceR, opinion agree majority statement I with the to the effect carry plaintiff has sufficient case to the that jury granting and that Dempsey, defendant of his motion for judgment of reversible error. nonsuit agree majority opinion not with in the
I do that judgment of nonsuit granting the motion for as to defend- of majority opinion, As I understand the such proper. ant Simons is, on statement therein “there based there- a conclusion is any negligence defendant as Simons no evidence fore, extrajudicial Dempsey’s truck” because driver of his state- by the incompetent Simons. ment S.E. 2d Supplies, was a
Anderson v. Office damages resulting truck-motorcycle from a collision. action for civil was an employee the individual defendant was admitted It business and was about his master’s at the corporate defendant court, in the was nonsuited trial Plaintiff of the collision. time entered reversed. The Court its appeal on J., said: Barnhill, written opinion, Dockery immediately made after declarations
“That not against him does affect admitted collision were alleged It is that the defendant. corporate to the result as negligence. it, As any act committed corporate defendant If, superior. upon of respondeat on doctrine relies plaintiff shall find that evidence, all the consideration proximate result injuries suffered imputed corp- negligence will be
Dockery, Dockery’s then injuries for the imposing thus defendant, orate sustained.” *15 IN THE COURT. SUPREME prior law in a infrequently appellate
Not courts call a statement of deciding a case obiter dictum. they decision which find troublesome in n —(cid:127) — quoted Conceding arguendo admitting the above but not my dictum, opinion, it is sound and correct obiter law.
Grayson a factual Williams, F. 2d involved situation an action E. identical with the instant case. It was Harold Wil- against Murray Grayson Freightways, Inc., liams and Southern driven damages arising out of a collision of a truck Williams and employee Freightways, as an of Southern by Grayson one driven against both jury plaintiff returned a verdict for defendants Inc. The only negligence charged upon which was entered. The imputed by from against Freightways, Inc., was that law Southern engaged negligent employee, of its while within the act, any, corporation challenged the scope employment. Defendant ground allowing that the court erred in judgment, alia, inter on the Grayson Grayson admissions of sev- in evidence made hospital. in a based its affirmance of eral hours later Court grounds, one of which is identical with the state- judgment on two our Sup- above from case Anderson v. quoted ment of law Office said: plies, supra. The Court Freightways, find Inc. because “In order to Southern liable necessary facts; (1) to establish acts, it was two Grayson’s acting within of his employment; Grayson negligence. (2) guilty actionable The first that he Grayson’s admissions his interest was admitted. fact negligence. to establish his These ad- properly admitted were jury from which the could find constituted evidence missions facts that he was liable for with other the accident. together establish admitted to his were Any properly facts impose liability upon more, employer. without sufficient, court had instructed jury that the that it us assume “Let determining declarations Grayson’s consider could general together with a verdict had submitted negligence and jury. to the questions special these three negligence? contributory guilty “1. Was negligence? guilty Grayson Was “2. proximate cause of the accident?
“3. Was question 'yes’ 'no’ first answered had If the general returned a verdict then had 2 and questions general verdict favor of Southern and a Grayson *16 FALL TERM, 751 1965. Dempsey. Branch v.
Freightways, Inc., would
required
not the court have been
sustain a
motion for
Freightways,
Southern
general
Inc., notwithstanding
verdict
its favor? To hold
otherwise would
mockery
be to make a
of the law, because it
guilty
would mean that the
had been found
of actionable
negligence, upon competent evidence,
acting
while
within’ the
scope of his employment, yet
principal
his
had escaped.”
agree
I do not
with the
statement in this case
Grayson’s
that
further
employer.
admissions were admissible
his
Such a statement
decisions,
is at variance with numbers of our
Stansbury, North Car-
169,
weight
olina
with
Evidence,
and
the decisive
of authority in
§
jurisdictions,
2d,
other
8 Am. Jur.
Automobiles
Highway
and
Traffic,
968;
C.J.S., Evidence,
345,
31A
346.
§
§§
jurisdiction
It is hornbook law this
and in
country
an
that
person
a third
employer
injury
is liable to
to either
or
person
proximately
results from tortious
property
conduct of
em-
his
acting
scope
authority
within the
his
ployee
and in furtherance of
Although
employer’s
employer
business.
directly negli-
his
employee acting
conduct of his
within
gent, the tortious
employer’s
of his
authority and
furtherance
his
business is im-
employer
respondeat
the doctrine of
puted
superior
liability upon
Telegraph Co.,
him. Jackson v.
imposes
139
347,
N.C.
738; Bryant
Co.,
L.R.A.
v. Lumber
1015, 70
174
360,
N.C.
51 S.E.
93
938; West v.
Co.,
L.R.A. 1918A
Woolworth
In West Woolworth employee usually of the ma- authority actual “While the employment it is not de- determining scope terial Employers seldom, principal. of the of the terminative employees wrong- their directly or authorize ever, instruct may rights We property others. personal invade the fully committed con- by employees are torts committed assume IN THE SUPREME COURT. Brawoh trary to employer. however, the desire When, undertaking employee employed that which do he was and, adopts to do in so constitutes a doing, method which tort injury and inflicts on another fact it is the that he was about his imposes liability. adopted master’s business which That wrongful method, expressly pro- or unauthorized or a method hibited, liability.” employer does not excuse the from *17 Bakeries, supra, In Porter v. Grennan said: Court respondeat superior, according “Under the doctrine generally accepted persons third is view, liability vicarious imposed upon torts, master his servant’s because fault, particular act, master at because authorized is or represents him, the servant because servant or because but in- conducting business, is the master’s and because the social general security holding is best maintained terest enterprises employed conduct others are those who liability what an absolute their servants do the course Reynolds J. enterprise. Co., Loucks v. R. Tobacco 188 Minn. 893; v. 182, Co., 246 N.W. Eliason Western Coal & Coke 162 485; Chicago, 213, Co., Minn. 202 N.W. Penas v. M. & St. P. R. 926, L.R.A., N.S., 627, 127 203, Minn. N.W. 30 140 Am. St. 112 R. v. 470; White, 188, New York Cent. Co. 243 U.S. 37 Rep. S. 1, 247, 667, 1917D, 1917D, 629; Ed. L.R.A. Ann. Cas. L. Ct. 61 Anderson, 215, 212 U.S. S. 53 252, Co. 29 Ct. L. Standard Oil 480; Corp., & R. 4 Metc. 49, Farwell Boston W. 45 Mass. Ed. (per Justice); Pound, Dec. 339 Law and 49, Shaw, 38 Am. Chief of respondeat superior the doctrine is Morals, pp. 76, 77. Where person, a third recovery on as a basis for the tortious relied scope employment, in the servant committed act of the hiring or absence it in re- master’s fault or and not the servant, liability. is the basis of The master is held taining the City St. Ry. Co., tort. Fonda v. Paul for the servant’s liable Rep. 166, 341; N.W. Am. St. Carlson v. 438, 74 Con- Minn. 569, 108 A. 8 A.L.R. and anno- Co., 94 Conn. necticut Servant, Jur., Master and 597.” tation; Am. §§ any wrongdoing part on the no evidence of Simons has Plaintiff employee Dempsey. wrongdoing of Simons is liable than the other acting scope within the employee Dempsey, only impose liability which would guilty of conduct employment, opera- then guilty conduct, of such upon If Simons. imposed more, alone, liability and without law tion of n -TERM, 1965:" Branch Dempsey depends upon liability facts;
Simons. applicable depends upon Simons law when the facts are once established. The rule is well Jur., stated 35 Am. Master and Ser- vant, 543: §
“By legal employee the act of the intendment, becomes the act individuality of the employer, employee being identi- employer. fied with that of the The latter is deemed to con- structively present; employee the act of the is his act, and he proper accountable as for his own act or becomes omission. The imputes servant, law to the master the act of the and if the act negligent wrongful, proximately resulting in injury to a wrongful negligence or person, negli- third conduct is the wrongful gence or conduct of the master for which he is liable. superior respondeat doctrine of under which “The master for acts of imposed upon the his servants committed employment course or within the of their in the has its origin public in consideration of policy, foundation or conven- justice justice. Substantial is best served ience, by making *18 injuries by acting for the caused his responsible master servant developed has been greatly master’s service. The rule and the changing of necessities of social and extended out economic con- development an and its is example The rule itself the ditions. society necessary which the as to what is process expressed juristic is from to time welfare time public to thought fix may be to be a hard rule to on the forms. It passed employee sight when the has out of and even employer, upon public policy a too firmly it rests settled to be control, but every person management that in the It is elemental questioned. an injury conduct them as not to cause affairs shall so of his manage through undertakes to his affairs and if he another, manage them that persons bound so to third remains others, he legal part on any duty breach of of such injured by are not engaged upon his business and within they are while others authority. possible as he has made it for Inasmuch their scope of just be injury, it is that he should to inflict the employee his respondeat superior,’ said Lord maxim of ‘The held accountable. prin- ‘is on this Smith, in Hall v. bottomed Best Justice Chief advantage an from act which expects to derive he who ciple: any for which a injury must answer for him by another is done ” from it.’ may sustain person third IN THE SUPREME COURT. Branch wrongful damages against A, In a civil action to recover death alleged alleged an al- employee, B, employer, and because of the leged employee’s authority tortious acts in the of his and scope done alleged employer’s business, in furtherance of his proximately result- ing in plaintiff’s death, intestate’s usual issues submitted to jury are follows: negligence plaintiff’s A,
1. Was intestate killed alleged in the complaint? acting was A at the so, employee If time of B and within the authority and furtherance of his master’s business? yes, then, issues jury
If should answer both the absence of contributory negligence part plaintiff’s intestate, plain- on the damages jointly separately to recover from tiff would entitled as a matter of law the of A B, A and because under such findings imposes liability on on jury imputed is B him superior. respondeat customary The mere form of the doctrine upon principle is framed in such cases vicarious lia- issues imposed upon employer his employee’s is bility plaintiff is employer fault, employee at but because the torts, not because conducting employer’s words, business. other the fact that employer’s imposes about his business what lia- employee was bility employer. on the has sufficient majority opinion holds that evidence to Dempsey, Dempsey’s case based
carry his holding agree. extrajudicial With that I statement. Bazemore, plaintiff, effect, witness for testified to this
Henry L. a. He went to the scene of collision between except quoted: when Highway #13, on wagon truck and saw Dodge station Ford steering Dodge wheel station sitting behind Dr. Branch holding up. head At the scene saw de- a man was wagon, and cuts on He who had and blood him. said at Dempsey, fendant Dempsey, “this man dead.” hearing of in the scene [Dr. Branch] patrolman a witness for Highsmith, plaintiff, a State Osborne *19 collision, of arrival went to the scene on in effect: He testified sitting Dr. Branch Dempsey and under defendant there saw wagon with Dodge station motionless his hands steering of a wheel paragraph in of Simons five his answer Defendant to his side. down Ahoskie, of is a resident Hertford defendant “that admits February, 1963, Carolina, day and that on of County, North bearing North two-ton truck Carolina Ford a 1956 he owned paragraph eleven of answer 5349-RC,” and No. License was a collision Highway there on U. S. advised that “he is alleges that February 1, 1963, involving Carolina, North on Ahoskie, near #13 TERM, Branch
truck of this defendant and vehicle.” Plaintiff intro- another motor duced in copy registration evidence a certified of the of 1956 Ford two-ton truck bearing 1963 North Carolina license No. 5349-RC showing registered that defendant Simons was the owner of this Ford This truck. evidence and the admissions in defendant Simons’ answer bring provisions above set forth into play the of 20-71.1, G.S. which provide.
“(a) damages In all actions to recover for injury to the person or to property arising or for the death of a person, out involving of an accident or collision vehicle, proof motor of ownership of such motor vehicle at the time of such accident or prima collision shall be evidence that said motor vehicle facie being operated and used with the authority, consent, and very knowledge of the owner in the transaction out of which action injury said or cause of arose. “ (b) registration Proof of the of a motor vehicle the name person, firm, or shall corporation, for the of any action, prima ownership such evidence of and that such facie operated being was then and under motor vehicle the control conduct the owner person legally of a for whose responsible, benefit, and within the for the owner’s course and of his employment.” by plaintiff carry sufficient to offered case to the jury
Evidence extrajudicial such even if all evidence is against Dempsey, state- incompetent taken Simons, as to ment connection presence at the scene the collision Dempsey’s fatal with Dr. presence with occurred, after shortly Simons’ with scene, at the the admissions truck defendant wrecked quoted, and the evidence of answer above Simon’s registered owner of the Ford truck Dempsey was was the Simons collision, bring play fatal into driving at the time my 20-71.1, sufficient, opinion, are to carry of G.S. provisions Simons, they make out a case to the plaintiff’s Dempsey, an employee case that prima facie within Ford truck for Simons’ benefit and operating Simons resulting in employment, proximately Dr. scope course and Simons, employer, imposes death, imputed Branch’s fault, be- Simons, not because Simons is at but liability on vicarious employer’s about his Dempsey at the time was employee cause his superior. hold otherwise respondeat To principle business, on the respondeat superior and to the doctrine repudiate would be *20 756 IN THE SUPREME COURT.
Branch v. ignore provisions of mean that 20-71.1, G.S. because it would jury against carry there is sufficient evidence to the case to the a agent Dempsey negligence, operating actionable while Simons’ of acting scope employment truck and within and of Simons yet employer’s business, there is insufficient evi- furtherance of against carry employer case jury Simons, dence to liability. escapes judg- I employer Simons the vote reverse the plaintiff’s against ment nonsuit case Simons. of of concurring opinion. DeNNY, C.J., joins dissenting this agree concurring dissenting part. with J., part I Shakp, majority judgment of nonsuit in favor Dempsey of must I their conclusion that be reversed. dissent from of nonsuit as to Simons should be sustained. (Dempsey), driving An
We have situation: servant registered principal in the name of his has (Simons), a motor vehicle plaintiff’s another motorist, with testate who (Branch), a collision alleging the of Plaintiff, Dempsey actionable is killed. acting employment by Simons, the course while wrongful for Branch’s him and Simons death. G.S. sues both 20-71.1 the vehicle in (b) registration 'prima Simons’ name makes the facie motor vehicle and he owned the that at the time evidence person being operated it was whose question conduct the It responsible. prima does make legally out owner facie part either driver or the negligence on owner of the case 79 Smith, 170, 239 N.C. S.E. 2d See Hartley v. Howard vehicle. 341; 185, S.E. 2d Whiteside v. McCarson, Sasso, 253 N.C. 2d 295. 110 S.E. N.C. investigating made officer after
Declarations
collision
constitute the
they
the scene
had left
negligence. These declarations
actionable
were not a
Dempsey’s
they
were admissible
gestae. Clearly
Dempsey,
res
part
Morgan
Bakeries, Inc.,
them,
v. Bell
98 S.E.
who made
evidence, required
court
with
other
to sub-
and, along
him. Did
declarations also
jury as to
those
take
case to the
mit the
Dempsey’s principal,
majority
Simons? The
as to
the case
emphatic
“No” and then
with
nonsuit
question
answer this
evidence, competent against
there is no
him because
case
dis-
impels This rationale
negligence.
prove Dempsey’s
Simons, ob-
plaintiff failed to
though
question even
this evidence
cussion of
Simons.
Dempsey’s to the exclusion
ject
FALL TERM, 1965.
*21
Dempsey.
v.
problem
The answer to
presented
must be found in the law of
agency,
upon
depends
it
whether
statements
made the
the scope
agent
within
of his
authority
outset,
Simons. At the
distinguish
extrajudicial
we must
between
an agent
declarations of
tend to
his agency
proven
which
establish
those of a
or admitted
agent
negligence.
tend to establish
an alleged
his
As
principal, the former are clearly incompetent.
“The existence
agency
agent’s
proved by
cannot be
court;
statements out
aliunde,
agent’s
must be established
by
testimony
otherwise,
his
will
before
admissions
be received.” Stansbury, N. C. Evidence §
(2d
1963);
Ed.
Motor Lines v.
169
Brotherhood and Dixie Lines v.
Brotherhood,
315,
697;
N.C.
132
Sealey
260
S.E.
v. Insurance
Co.,
774,
253 N.C.
For the on the motion of nonsuit, Dempsey’s agency employment by in the course of activity his Simons are by established G.S. 20-71.1. Were not his words with reference to that activity scope employment? also within the person
“He who an act in agent sets another to do his stead as chargeable by in substantive law such acts as under are done authority; too, properly enough, that so admissions.made agent in exercising authority the course of have the same party’s present testimonial claim value discredit the party stated himself. upon scope authority. question
“The therefore turns frequently enough depends This a difficult question, one, Agency applied case, the doctrine of to the circumstances of the rule of 4 upon any Wigmore, not evidence.” Evidence 1078 § (3d Fanelty 1940); accord, Jewelers, 694, Ed. v. N.C. 230 55 Pearce, 587, 647; 493; S.E. 2d Salmon v. 223 N.C. 27 S.E. 2d Bank Wysong Co., 284, Miles 177 98 also & S.E. 769. See Mc- (1954); Stansbury op. supra 244 cit. Cormick, Evidence § § 169. respect law to whether is as much confusion with
“There scope within of his em- admissions an are made respect gestae ployment as is with the res rule. Of there authority rarely express to make admissions will course, Williams, employment.” Grayson in a found contract (10th Cir.) F. 2d field of tortious Wigmore points out, it is
As authority difficult to determine. agent’s is most THE IN SUPREME COURT. : BRANCH locomotive, and a example, “For if A is an to drive a collision, ensues, why may after the admissions, collision em- acknowledging carelessness, be received circumstances not made ployer? Are statements under such do?” performance Wigmore, op. work he was set to cit. supra § cites Central Coal Co. v. discussing problem, Northern (8th Cir.)
Hughes,
Other scope of concerned a matter within the statement if the declaration was termination of made before the employment the declarant's Inst. of Evi- agency employment. See Am. Law Model Code or 508(a); Morgan, The Rationale Vicarious Admis- dence, Rule (1929); op. supra McCormick, L. 461 cit. sions, 42 Rev. Harv. § cases, is of the recent result if not 244, said, wherein it “Some acceptance by generally courts test. Its theory, wider support expedient.” seems many jurisdiction contain such statements this as
The decisions
following:
agent
employee says
us
an
or
“It
the rule with
that what
is
within
being
him
presently
an act
done
relative to
part
is
employment,
or
admissible as
of the res
agency
evidence,
against
either for or
may be offered
gestae, and
agent
employee
or
af-
says
but what the
employer,
or
principal
though
merely
past occurrence,
narrative of a
terwards,
may continue
other
employment
matters,
as to
agency or
against
only hearsay
competent
is
as
generally,
or
(citations omitted.)” Hubbard v.
employer,
or
R.
principal
Hughes
678,
804; accord,
675,
802,
S.E.
v.
N.C.
166
En
R., 203
577;
131,
R.,
2d
Lee
S.E.
v. R.
237
terprises, 245 N.C.
95
N.C.
Harris,
198,
143;
2d
220 N.C.
S.E.
Howell
16
2d
357, 75 S.E.
Hall,
Appalachian
833,
42;
190 N.C.
131 S.E.
Pangle
829;
100,
106 N.C.
offered, it competent against Helms, the defendant (truck driver), competent and was not employer or the other defendant. . . . What an employee says or an merely after event, past narrative occurrence, gen- erally regarded as hearsay and competent is not as substantive principal employer.” 745-46, Id. at S.E. 2d at 796.
To the extent the rule laid down in Hester is
retained
situations
such as we
here,
have
of respondeat superior
rule
is eroded. The
—
net result' —-all questions of insurance aside
judg-
likely
ment
only.
insolvent
problem
This
was considered in Anderson v.
Supplies, 234
Office
opinion
in an
(later
66 S.E.
by Barnhill,
C.J.).
J.
*23
Anderson,
plaintiff sued both
principal
the
agent
the admitted
injuries
upon
inflicted
him
the latter while he was about his
agent
master’s business. Declarations
the
after
the collision
negligence.
established his actionable
They were admitted in evi-
against
agent.
only
dence
as
the
Said Justice Barnhill:
“That
the declarations of Dockery made immediately after
collision were admitted only
the
as
him does not affect
corporate
alleged
the result
to the
defendant. It is not
that the
corporate
negligence.
defendant committed
act of
it,
As to
respondeat superior.
relies on the doctrine of
upon
If,
all the evidence,
consideration of
the
shall
plain-
find that
injuries
proximate
as a
negligence
tiff suffered
result of the
Dockery’s negligence
Dockery, then
will
imputed
corp-
be
defendant,
imposing liability upon
thus
injuries
orate
it for the
Id. at
sustained.”
The record discloses that there was evidence of extrajudicial agent’s addition to his the statements. quoted was, above therefore, necessary statement decision the case, authority and thus dictum. No it, the cited for and no IN THE SUPREME COURT. Lines, supra.
effort made to Such reconcile it with Hester v. Motor the competency rationale would test the evidence to establish agent’s negligence the active tort-feasor. only agent, master, To admit the now under consideration evidence agent’s dec adopt it is not Barnhill if necessary actually scope authority. larations were made in the Grayson Williams, supra, involved a factual situation indis- tinguishable challenged at from +he case bar. Plaintiff’s ground on court corporation defendant trial erred allowing statements of the made several hours investigating after officer and others. The the accident Court grounds; its on two is identical Appeals based affirmance first with the dictum in Anderson: defendant) wrongdoing (the charged no with corporate
“It Grayson. It liable wrongdoing agent, of its other than the scope employment, acting within Grayson, liability upon impose would him. Then of conduct which guilty more, liability and without is imposed of law alone by operation Grayson depended facts; upon that of it. The applicable law depended upon the when the facts company . . . once established. were (agent’s) admitted to establish his lia- properly facts
“Any impose sufficient, more, liability upon without were bility . employer. . . mockery law, would to make otherwise
“To hold guilty had been mean would because found upon competent evidence, negligence, acting while actionable employment, yet his principal had es- within added.) 256 F. at 67-68. (Emphasis caped.” affirmance, adopted reasoning court ground.of the other For Supp. yet Line, (D.D.C.), Truck 121 F. an- Savage in Martin In Martin, factual situation. the same court presenting case other that, contention principal’s rejected *24 person a statement the interest of the “(W)hile it did, only as it not to civil subjecting him, liability, it, making sanctions, cannot be a criminal considered possibly but because principal, interest of against the statement only purpose operating for the the principal of the agent making concern- statements purpose not for vehicle, at 419. Id ing operation.” its TERM,
Bbanch
The court reasoned:
“Drivers required report of such vehicles are law to acci- dents resulting injury their motor vehicles are in- special volved. Police authorities have units immediate investigation injuries of the numerous which are of occur- daily rence. To say, these circumstances, that the owner of a motor may person agent truck constitute a purpose operation public of such truck over and highways, streets and to say at same operator agent time that such longer is no such owner when an accident occurs, for the of truth- fully relating concerning the facts the occurrence to an investi- gating police shortly thereafter, officer on the scene seems to me an fiction, contemplated by to erect untenable neither parties nor by public policy. sanctioned It almost saying like interest in the instant case could have operated made been had truck been an officer or the board Corporation owning of directors of the truck; trucks are operated way. To exclude the statement of the driver of speed as to the the truck of the truck at the time of the collision, only clearly which was not excessive in the circumstances, but speed greater permitted than the limit even on highway be- intersections, would to deny tween an agency which I be- regardless inherently exists lieve of whether the statement impact, made at moment some minutes later to an investigating officer, or other person.” authorized Ibid. represent weight cases do not above two of authority, Am. yet (1963), 2d, jurisdictions Automobiles Jur. number now § and logic practical justice recognize their as the following decisions
show: Keogh, Neb. 795-96,
In Whitaker N.W. 2d 596, 600, of Nebraska said: Supreme Court properly think the evidence was “We receivable an admis- an against interest. Whatever or employee sion does in the authority imputable exercise lawful to the principal acts of or employee where the will bind prin- representations, declarations cipal, respect- admissions subject will also bind ing matter him, made at the same part and constitute time same transaction. Wigmore, question Evidence, see. 1078. The is one of substantive law, the agency. question It is not a gestae law of res as is often sup- Wigmore, posed. Evidence, (Emphasis sec. added.) 1797.” *25 IN THE SUPREME COURT.
762
BRANCH v. Budge, 103, 238, 108, 242, In 74 Idaho P. 2d Thornton 257 result, of a like Supreme saying: Court Idaho reached agency having established, Henderson “The of been theretofore of Henderson were admissible evidence. The the statements agent respecting subject an of an matter of action statements scope binding his are authority prin- of on the and within cipal.” Fla. Lloyd, 47, 49-50, 616, 27 So. 2d Myrick 615, we find:
In recognize authority on this question; conflict how- “We practical chosen the above the more and liberal we have ever statement prin- When this was made the status of . . . rule. ... It is also a fact state- agent continued. that the cipal occurring matters within reference to of his had ment agent acting acting prin- When so for the employment. might made such admission an himself who have cipal conclusion that in this It is our case interest. the state- own his admissible.” ment Geremirh, it was 107 Conn. Atl. held that Ezzo v.
In
had an
who had
accident with
agent,
employer’s
work
reports required
had made all
complete
until he
was not
vehicle,
acting
making
reports
these
he was
defendant’s
law; that
against the
admissible
defendant as
declara
therefore
“it was
agency.”
the course
his
at
made
Id.
his
tion
at 465.
Atl.
Royal
Tuller,
Dutch Airlines Holland
(D.C. Cir.), a statement Oudshorn, report government in a formal in operator, radio eight rescue, after accidents, some hours was held spector in an for in evidence the airline action admissible properly in a The court passenger of a killed crash. was not wrongful death hearsay rule: troubled basic admission reliability is the test
“Since hearsay statement, the interest of the one who utters and the always charged important. That this statement to be one plain. the interest of KLM was also adverse to interests in that personal adverse Oudshorn’s it entailed employment, impairment em- loss future possible death, opportunities, possible civil Tuller’s ployment possibility of criminal sanctions. think and even We FALL TERM, 1965. *26 Dempsey. Branci-i v. test of reli- any reasonable
such a statement recorded meets ability.” Id. at 784. Sweet, 384, 363 Mich. Company also v.
See Kalamazoo Yellow Cab 2d 109 N.W. 821.
A courts, recognizing number of trustworthiness of statements such as here, by those under consideration have admitted them ex- tending spontaneous relaxing the time for declarations or the res gestae exceptions hearsay court in to rule. Said the Lucchesi v. (driver-agent’s Reynolds, 125 Wash. Pac. 12 216 to hospital his police victim, admissible): at to which he had taken held court, courts, “This other modern has, with most as we have considerably said, heretofore relaxed the one-time rule that tes- timony part gestae to as be admissible res must be con- happening temporaneous event, with and has estab- rule . . that the lished the . utterances need not be contemp- accompany with and event, they oraneous but are ad- they missible when are made under such circumstances ‘as will presumption raise a reasonable they spontaneous are the thoughts created by, springing utterances or out of, trans- itself and so soon as action thereafter to exclude the presump- they premeditation are the result of design.’ tion that or . . . fact that the statements by testified to the officer had been by against cannot questions elicited militate their reception. they course, involuntary were not Of exclamations, they but spontaneous were none the less and instinctive. good
“It
little
to
would do
refer to cases which have held
way
either one
or the other as to the admissibility of evidence
part
gestae, for,
as
of the res
as was said Wigmore, in his
argue
.
.
work on Evidence
. ‘To
from one case to another
question
on
this
“time
devise
contrive” is to trifle with
cumber
principle,
the records with unnecessary
un-
”
profitable quibbles.’
Id. at 354-55, 216
at
Pac.
13.
Navajo Freight
Mahaffy,
also
Lines
174
2d
(10th
See
F.
305
Cir.)
(statement
at the scene made
truck driver that his
jam
brakes
admissible);
med,
Young,
held
Ambrose v.
BRANCH jurisdiction judgment a prior res adjudicata subsequent as to his suit actionable against the master. 2d Crouch, Bullock v. 89 S.E. 749. N.C. precludes A however, former favor of the later servant, on suit based the same cause of action master whose lia bility, Taylor any, purely Hatchery, Inc., derivative. 689, 111 2d master is day S.E. 864. The entitled court every on opportunity Co., with full to defend Bullard issue. v. Oil competent To hold 254 N.C. 119 S.E. that evidence per competent establish se also impinge upon against the master would not these rules. Such hold *27 ing merely subsequent mean that the against would the suit subject the master could this evidence to his own master, cross- — contradiction, perhaps offer evidence in examination, upon — exonerating to return a verdict jury same evidence induce his the though had found another his liable. As him even hereto out, however, necessary this case pointed to deviate fore supra. of Hester v. Motor Lines, Here, from the rule to im that far only necessary it is upon master, recognize to liability that pose actually statements were made within post rem agent’s authority. authority exists, agent’s such Where his of hearsay exclusion is inapplicable but the rule hearsay, be no less agency, agent’s of law the substantive cause, under statement is principal himself; if” made and therefore, “as ad considered against interest. admission Kalamazoo Yellow as an Cab missible Co. however, these Even, statements were Sweet, supra. considered agent, interest they would no admissions be suggested that employees, knowing it will Perhaps that reliable. less pocket deeper employer, may to seek the prefer be in plaintiffs exists, none or where where it is fault doubtful, confess to clined employer or to have the injured plaintiff share an the re help to order contravenes human argument nature. No motorist This sponsibility. negligence caused his accident. a that Ordinarily admit to likes in any from blame himself situation where it is absolve will person employee who has been do so. The involved in a for him possible damage, personal property injury, resulting in death, collision possible loss his job, may he that, in.addition face knows Although principal may liability. well criminal have civil both rarely liability, has civil respon criminal agent’s his share agents vehicle motor accident. That agent’s custo for sibility by deliberately making facts false state misrepresent marily upon the accident themselves, blame place ments — principals liability their especially imposing purpose FALL TERM, 1965. Branch —
when such investigating statements are made to officers of the law credulity presupposes agents strains the untrustworthiness of servants as a class. post agent may rem theory
On the
statements of an
be intro-
showing
principal
duced
for the
knowledge
transaction,
of the
this Court has sanctioned the ad-
time
shop foreman,
mission of a statement
a defendant’s
“some
given
wreck,”
type
after the
a certain
had
trouble.
brake
Co.,
Accord,
Jones v.
2d 395.
Dressel
Chevrolet
S.E.
Co.,
App. 536,
Certainly
v. Parr
make the he was neither nor employer’s business. Nor was it a statement rized to discuss potential liability he himself had no what- interest, since safeguard Thus, situation, per- in that even the ever the matter. declarant, present where the servant sonal lacking. hesitancy Yet the court had no in ad- tort-feasor, active mitting statement as evidence of notice of the existence of facts liability. which created employment case, Dempsey’s I conclude that did not instant imposed collision ad- with Branch. The at the time he collided
end duty remain scene, him. He had a at the obligations upon ditional and then and there to disclose certain in- Branch, aid to to render *28 officer, being dead or uncon- peace to the nearest formation charge remained in of Simons’ truck and He scious. G.S. 20-166. highway. its removal from the for
responsible highway ever-increasing accidents, every number of the In view of an operation agent who entrusts its to a motor vehicle owner of contemplate possibility may the it be in- is bound to servant agent’s operate an Surely authority to the ve- in a collision. volved — authority obligation speaks the the if he hicle includes both — information, including to the give all to to those entitled the in- at manner in officer, a true account of the which the wreck vestigating subject an is officer, A made to who to occurred. cross- it, analogous is not testifies as to to the accident examination he (cid:127)— specifically excluded from evidence required reports are makes such a statement to an officer, the driver by statute. When (cid:127) — indulging in casual conversation or idle chatter the outside he is not authority. If the collision is one which must be scope reported, of his investigation an of it either requires also the State 20-166.1 G.S. office, city, the or rural Patrol, police. the Sheriff’s Highway 766 IN THE COURT. SUPREME
Beanci-i v. Thomason, 84, In his 241 dissenting opinion in Marshall v. S.C. arguing 127 for rule for which 177, 182, Lewis, J., S.E. 2d the dissent contends, said: power can no driver to make
“There doubt that the had employer operated ve- liable manner which he ip charge placed hicle. truck was the sole of the driver to operate. unrealistic, least, is hold that the driver say It to to every agent employer was the of the connection except vehicle, truthfully operation with the relate operated manner in which it.” authority who has had a my view, In collision in motor vehicle terminated principal’s arbitrarily when the rest after accident and dust comes to from impact vehicle period cease at settles, nor does it the end some brief of time gestae utterances or to res spontaneous allotted intervals. Such usually proportional only are allotments time chancellor’s majority, spends as do the the collision hold, foot. To has no 20-71.1, (the that it further effect “after force of G.S. this, to vehicle) stops” is, in cases such as retreat days Lines, 41 S.E. If N.C. 2d 586. Carter Motor driver of vehicle not, fact, disclose that its own- should to a peremptory would be entitled agent, the owner instruction er’s agency, Travis Duckworth, the issue his favor on N.C. Taylor Parks, 2d 309. See 471, 75 S.E. S.E. agency eliminated, of the driver so is the If the lia- 779. bility. owner’s nonsuit, motion for I would hold that passing upon Demp- investigating officer his version of gave when he sey, how the acting within occurred, authority collision My vote, therefore, reverse the Simons. defendants. both nonsuit