160 S.E. 281 | N.C. | 1931
The plaintiff, a minor, was riding in a car with his uncle, J. S. Webb, on 8 July, 1928. The car in which plaintiff was riding was approaching Elizabeth City. A car owned by the defendant Wood and driven by the defendant David Sanders was approaching from the opposite direction. The evidence tended to show that the car operated by the defendant Sanders undertook to pass a car in front thereof and traveling in the same direction therewith, and in so doing struck the car in which plaintiff was riding, turning it over, and as a result thereof plaintiff suffered serious and permanent injuries, necessitating the amputation of one of his feet. There was ample evidence to the effect that the defendant Sanders was driving the car in a negligent manner.
At the conclusion of the testimony for plaintiff, the trial judge sustained a motion of nonsuit as to defendant John L. Wood, and thereupon issues of negligence, contributory negligence and damages were submitted to the jury as to the defendant Sanders. The issues were answered in favor of plaintiff and damages were awarded in the sum of $1,250.00.
The plaintiff appealed from the judgment of nonsuit as to Wood. Two questions of law are presented by the record:
1st. Does proof of ownership of a pleasure car constitute a prima facie case of liability against the owner, for injuries resulting from the negligent operation thereof by another? *311
2d. Is the conversation of defendant Wood with Webb, next friend of plaintiff, competent as evidence of agency of defendant Sanders?
The law answers the first question in the negative. Reich v. Cone,
The plaintiff, however, insists that the conversation of defendant Wood, the owner of the car, is some evidence of agency to be considered by a jury. This conversation, occurring at the hospital, as detailed by the record, is as follows: "The boy was on the cot. Mr. Wood said: `He was a poor boy but he wanted to help him out and they would pay the doctor's bill and would get him a limb and fix it so he would have some money to educate himself.'. . . Mr. Wood said it was his car and said he would do what he could to help Sanders out, but said nothing about why Sanders was driving. Mr. Wood gave me a check on a bank which I did not think exists. Wood told me that he would see `that everything was all right.' He gave me that check and said he would give me some more and do everything he could to see that it was all right. . . . Mr. Wood said he would do all he could to help Mr. Sanders and said he would give Vernon an artificial foot and pay the hospital bills and give Vernon money for his education." . . .
The foregoing evidence was admitted without objection, and hence the element of compromise is eliminated.
It is stated in Cyclopedia of Automobile Law by Blashfield, Vol. 2, page 1795, "that, after a collision between defendant's car and that of plaintiff, defendant, after examining the plaintiff's automobile, told her to have it fixed and he would pay expenses, and later requested her to send the bill to him could be found by the jury to constitute such an admission as to warrant a finding that the servant driving the car was acting within the scope of his authority." The text is supported by the following authorities: Jasmin v. Meaney,
In this State, the fact that a defendant procured a doctor or took an injured person to a hospital and paid the hospital bill is not an implied admission or circumstance tending to impose liability. Barber v. R. R.,
However, in the case at bar, the defendant Wood promised to see "that everything was all right." It might be that his engagement, thus expressed, did not go beyond the assumption of hospital care and treatment for the plaintiff, but the language used in the various conversations is susceptible of broader meaning and interpretation. The correct interpretation produces an issue of fact for a jury to determine.
The Court, therefore, holds that the conversations are competent upon the question of the liability of the defendant Wood, and hence the judgment of nonsuit is
Reversed.