*1 TERM, SPRING 1954. 217 O.] .TYACHOSKY V. WENSIL.
sonable assume that Mrs. Pate was aware these refinements. She had not given $100.00 the three to Sam bonds Hubbard her life- during time. She thought doing so result was albeit Will, she actually accomplished by operation law under Ervin v. authority Conn, Frederickson, and Bank v. supra.
In view is short, my testatrix U. purchased $100.00 three S. had made Bonds, payable them Sam Hubbard, thereby herself J. bonds for him earmarking these him with and that identifying them, had bonds and “& these these in mind when she Sam only provided: she & Hubbard is to on Hundred the Bonds Dollars.” (Emphasis have added.)
KAY JYACHOSKY L. R. WENSIL and CURTIS GARMON.
(Filed May, 1954.) 5 d— 1. Automobiles § % competent testify appearance It is witnesses to that the truck they truck, which as another saw the scene of the accident was the same identified belonging employer, shortly they to defendant saw thereafter at place. 2. Automobiles e— § % Testimony identifying of witnesses the truck which saw at the belonging as the scene the accident same truck identified as to defend- employer question, ant is sufficient to take the case employer’s being conflict therewith for the resolve. 3. Same— proof merely provides G.S. 20-71.1does not affect the burden but proof ownership prima of a truck involved in an establishes accident being operated by employee that the an that at the faeie employment. time the prima Such showing respondeat superior is sufficient to take the issue of facie jury, compel finding does an to the affirmative thereon. 4. Evidence 7e—§ prima give The establishment of facts rise to a case sufficient faeie merely jury, takes the issue to the and the of defendant’s evi- explanation dence rebuttal also their determination. respondeat superior held Automobiles § 24%i — Instruction provisions without error under of G.S. 20-71.1. belonged Plaintiff offered evidence that the truck involved accident employer to defendant iind also introduced in evidence the certificate registration disclosing that license for the vehicle was issued to defendant employer employer as the owner. Defendant introduced evidence THE IN
Jyaciiosky V. Wexsil. *2 employee of the truck was his accident but that the time .the employee purely acting personal on a within mission and was not scope emiDloyment. provisions of his Held: 20-71.1 Under the G-.S. correctly charged jury plaintiff the court if the had satisfied them by greater weight employer was the the evidence that defendant involved, jury question owner agency, the truck should consider the plaintiff by greater weight of if had satisfied them the driving operator of that the the truck was then it evidence an employer defendant affirmative, employment agency, answer in the issue them, plaintiff in but that if had not so satisfied to answer the issue negative. addition, charged peremptorily jury In if the court issue, no. believed defendant’s evidence to answer the 6. Automobiles §.23%d— seeking In an to hold the owner of a vehicle liable under the action respondeat superior competent for to introduce it doctrine registration Depart- in ment from Motor evidence the certificate Vehicles employer. indicating for the vehicle was issued to the license 7. Husband and Wife 10—§ personal injuries, In the admission of the wife’s action to recover hospital paid by prejudicial bills the husband cannot be evidence as to when the husband would be estopped damage recover these items of in separate a action. Appeal 8. and Error 39f—§ Upon relating solely an issue to whether a truck involved an accident employer, liability employer under the owned issue, respondeat superior being presented subsequent doctrine of an under presented question “There of fact and that instruction prejudicial question.” Held: Not when consid- is no law involved ered in context. 9. Same— referring as a to the truck Inadvertence court held, preju- “panel” dicial, pickup truck, was a not truck when fact the truck being being apparent misled and there request the time that the inadvertence corrected. counsel at Tidal 10. 22c—§ discrepancies in the evidence are Contradictions resolve, largely on the basis of the witnesses. Appeal and Error 1—
11. § appeal Supreme consideration of is limited to errors Court law in the court below. Barnhill, J., concurring. C. JJ., concurring opinion. join in Parker, Winborne Appeal Whitmire, Special Judge, October, 1953, from by defendants MeckleNburg. Extra Civil Term, TERM, SPRING O.] for personal
Action to recover damages injuries. on 16 Plaintiff about she alleged June, 1951, p.m., 7:45 was riding operated in an (Studebaker) Jyaehosky, automobile Andrew her hus- en band, traveling Charlotte, east on route from via Monroe, #74 Wadesboro; a Ford meeting automobile; were that a red traveling west, Dodge pick-up suddenly negligently out truck, pulled behind front of Ford, right the car and in riding travel; its lane of and that the which plaintiff car in riding was off forced and collided car on parked shoulder of throwing plaintiff from car onto highway, pave- unconscious and offered ment, seriously injured. by plaintiff Evidence allegations. tended establish these
Plaintiff alleged further red was owned Dodge pick-up defendant R. was operated by Garmon, L. Wensil and defendant Curtis an upon the and who, occasion, defendant then employment. Defendants, answering, these allegations. denied all allegations except denied
Defendants, answering, complaint, relating allegation those and the parties residence de- in plumbing heating fendant Wensil and business under engaged name of L. R. that the defendant Garmon Company trade Wensil in in the defendant during period employ Testimony following: offered included the by plaintiff P. Paul a Patrolman stationed in Union Highway State Ward, County, that he arrived scene testified at the some miles west of injury, 3-3% Monroe, about 8:10 he out red p.m.; put Dodge a call for a pick-up truck had a or a appliance, refrigerator stove, some either a it; back 45 minutes in he response call, went later, some in Matthews, County, some or miles west the scene Mecklenburg saw who ar- injury, Highway A. E. Patrolman had Pierce, State he took Garmon; rested defendant defendant Police Garmon also took red Monroe; Dodge Station into his possession he which had a back of it and attached a North pick-up, stove on the had 841-730; Carolina license for 1951 number and that he plate bearing the had one where it some drive this truck to Police Station Monroe until next morning. remained some time the Pierce, Mecklenburg
A. E. State Patrolman stationed testified that he defendant Garmon ut Lemmons Service County, arrested a 1940 Station that he had in his red Matthews; possession Dodge truck, trimmings, with a white with black also some pick-up stove, bed; scattered fixtures held plumbing fittings, came; Garmon until Patrolman Ward and the truck turned Ward. defendant Garmon and truck were over to IN .THE Jyachosky Wexsil. Jyachosky, Moore, Plaintiff’s witnesses Presson and Mills, Garland, Raker Plyler, Howie, gave testimony defendants’ witnesses tend- show and other indicia ing make, model, color, markings plaintiff’s injury. truck observed them the occasion of Ward Pierce, gave Plaintiff’s witnesses defendant Garmon indicia of truck defendant testimony tending identifying to show Garmon had when arrested Matthews. gave testimony tending
Plaintiff’s witnesses Garland Jyachosky Police Dodge of the red saw the appearance pick-up show the Station Monroe. drawn none of the wit- may therefrom, different inferences
While number discloses, noticed the mentioned, nesses so far as the evidence on 16 “10” on truck observed them pick-up with the Dodge red pick-up, Andrew testified he saw at the Police door, and a white in the truck bed emblem appliance on direct he testified objection by defendants, in Monroe. Over Station examination as follows:
“Q. any Police Station Did observed at the have you the truck which on ?it markings door. on the
“A. it had a white emblem Yes, sir, “Q. ob- you the truck which can state whether Jyachosky, you Mr. accident was the following night served at Police Station off ? ran road you truck which have testified you same truck.” same say “A. I’d sir, Yes, Garmon, he testified for defendant by counsel On cross-examination *4 pick-up red his observation was based that his identification on his left. passing had of it as it was glance truck in the Paint and Body at standing Tom Garland testified Moore’s and squeal he heard tires when highway, some 50 feet north Shop, the Studebaker road, getting that he ran out to while crash; a he saw motion; was still in riding) car in which (the name over truck,” with some with the paint “aged pick-up truck, red kind; of some appliance a white and in the truck bed was glass, rear highway, was on station but filling store and that it was not at Smith’s and con- of Smith’s “vicinity” place, in the road,” “zigzagging up the was that His estimate he observed it. tinued to long travel objec- Over observed it. when he away to blocks truck was from one two follows: direct examination tions he testified on by defendants, “Q. the truck you do know whether have seen Garland, Mr. Well, you ?not I “A. I’m did, yes. satisfied “Q. ? did the truck you Where see ? I hour, approximately
“A. Can tell the TERM, SPRING 221 N. O.] Wbksil. “Q. Yes, sir, and tbe place.
“A. Between 8 and o’clock Sunday beside morning, tbe build police in Monroe.” ing
On cross-examination counsel for be testified: “I’m positive it was same I saw thing tbe I Saturday afternoon. to
starting say that it was only my opinion, right. Well, that’s be I will tbe specific, say yes, that it was truck.” objection by
Over defendants, introduced in certifi- from cate Director of Registration North Division, Depart- Carolina ment Motor effect Yebicles, tbe that license 841-730 was number issued Wensil for assigned Dodge L. R. a 1940 truck bearing specified motor and note serial numbers. tbe following: We “Defendant objects Wensil because tbe tbe truck identity with tbe one that caused tbe not as form of accident, to tbe tbe certificate.” offered
Testimony by defendants included following: tbe Defendant Garmon testified that tbe truck defendant Wensil oper- by him on 16 ated June, 1951, involved. way John Plyler, Aaron Baker Sallie Howie testified Plyler Baker in a were seated car front parked in Howie located residence, some north of yards tbe across road from Smith’s #74 station; store that Miss Howie filling car; tbe standing beside saw red off Studebaker, traveling pull highway tbe east, tbe right its and heard the collision between it and a car on near parked shoulder near tbe front of tbe Strawn of tbe bouse, tbe tbe south side Body across Moore’s and Paint and that tbe Shop; only other vehicle present truck, traveling west, at or about this time was appeared in tbe road and traveling pulled be tbe then middle its towards left in front of premises Studebaber and then entered tbe of Smith’s store and station and there for seconds filling stopped a few driving west towards before Charlotte.
Defendant Wensil heating testified that be operated plumbing bis business out of tbe sized Concord; June, “right good bad be 1951, or ten job” Garmon about a week Kinston, employed; after 16 investi- accident; be days June, 1951, was advised be week-end; gated found bis truck that defendant Garmon bad #10 that bis respective being painted trucks were number numbered, tbe ascertaining tbe truck; each accident and that, upon learning tbe (#10) took truck defendant Garmon bad 16 *5 Plyler John Aaron Baker. injury, Plyler tbe scene and located and was they and Baker that tbe showed them not tbe truck testified truck be injured. at shortly saw Smith’s store and station after filling and testified Plyler Baker Photographs (#10). were made this truck not truck shown tbe 16 tbe 1951, that bad seen on they June, in tbe photographs.
IN THE SUPREME COURT.
JTACI-IOSKY V. WENSIL. was in at charge trucks, E. Howell testified be Wensil H. that did Concord; the Wensil business that be not learn tbe place of 4 he 1951; identifying accident until around tbat then assisted July, on 1951; the truck defendant Garmon had 16 that he knew this June, he that truck that he had him”; painted truck was because “issued #10, on it June, 1951; signs about weeks before 16 that the this truck three on number shellacked; complete, painted pasted were “10” painted thereon. 9, 10 and show a truck 8, 11, defendants’ exhibits photographs, thereon, “10” appearing prominently with number appearance,
clean Home side, Stop Utility on “One very plain markings with Metal, Sheet Electrical, “L. Service,” Plumbing, R. Wensil Co. and on back 2266,” Heating,” C.,” “Concord, “Dial — were photographs does not when the appear Wensil Co.” It cab, “L. R. assumed may is shown tag but since 1952 made, license plaintiff’s injury. were made months after many of plaintiff’s nor other Patrolmen, any Neither of State Highway It does not these witnesses, questioned concerning photographs. were from the Station Dodge pick-up who the 1940 red Police appear got its removal therefrom. in connection with Monroe any circumstances him working Garmon was with E. L. that defendant Riggins testified job carry- had a truck on that on the Wensil at that he job Kinston; needed; job, on the places, materials around to different ing soil materials, mostly him more get he sent Concord 1951, June, on his spend night him Monroe fittings, giving permission pipe nowhere Monroe, go to Concord back; permission that he had way between and that he was familiar else, (Riggins) #74 of 26 miles. a distance Charlotte, Monroe helper working plumber’s testified he Defendant Garmon he left job Kinston; Friday, Wensil at and spending to Monroe driving Dodge pick-up truck, Kinston in Wensil’s him to Bill told (Mr. Riggins) man in there; charge night back”; material bring business and your truck to see about “take make apartment Monroe, to close out his that his business was personal living idea of with the furniture, etc., for removal provision morning to Concord the he drove job lasted; Kinston while a.m., there about place at Wensil’s 1951, arriving 16 June, fittings, materials, consisting pipe washed; got truck was suitable to stove, also a small Kinston, to take back to which he was about 4:00 p.m. Monroe back to trailer; got in a be fitted shown the Wensil truck driving the truck he He testified #10 in the photographs. *6 SPEING TEEM, 223 C.]
Defendant Garmon further testified that Monroe, about 7:00 in p.m., decided to he drive to uncle, see his Charlotte who North lived Davidson Street; he drove Monroe to on Highway Charlotte at a #74, of 35-40 speed miles per hour, meeting none, cars but passing arriving in Charlotte “a after “maybe little 7 when seven,” :30”; that he to his got uncle’s home the door found and no one there; he locked waited 25 to he failed maybe to see minutes, longer, uncle, drove out that, Davidson Street to Trade on Trade Street; traveling east Street crossing came to McDowell Street where saw Caritha Barrino, in knew, who and whom he lived Monroe on the corner standing waiting for bus; him; he invited her Monroe ride they left and did not Highway stop they Charlotte until reached #74 Matthews, Lemmons Station in he was Service arrested. where
Caritha who ar- Barrino, was with defendant Garmon when he was in rested Matthews, testified she came to Charlotte in bus; from Monroe most of time win- that she Charlotte spent Trade dow-shopping; waiting she was at McDowell and Streets, the Monroe around to 8 bus, 7:55 :00 expected p.m.; she she with her in apartment that time lived in the same people Monroe house with defendant that defendant Garmon Garmon; along came truck; got she rode with him out with- #74 out until stopping place reached in Matthews defendant Garmon arrested.
The issues which the case answers submitted, jury’s thereto, follows: are as
“1. Did the motor vehicle the defendant and driven Wensil, Garmon, plaintiff defendant cause the vehicle which the riding vehicle, injuries leave with a third resulting collide to the plaintiff, alleged Complaint?
“Answer: Yes.
“2. If was said collision and so, resulting injuries proximately caused negligence defendant by-the Garmon, alleged Complaint? “Answer: Yes.
“3. At the of said time was the defendant Wensil’s collision, vehicle being and operated by driven the defendánt Garmon as the benefit, the defendant Wensil’s and within the course and defendant Garmon’s employment, alleged Complaint?
“Answer: Yes.
“4. What amount is the recover of entitled defendants Wensil and Garmon? $18,000.00.
“Answer: IN THE V.
JYACHOSKY WENSIL. “5. What amount is entitled recover of the defendant *7 ? Garmon ” “Answer: judgment against court on the and signed verdict both defendants assigning errors.
they appeal,
Grier, Parker n &Poe
Taliaferro,
plaintiff, appellee.
for
Garmon, appellant.
Goble Funderburk
defendant
for
&
and Bernard
Cruse
Jones
Small
W.
appellant.
defendant
for
of
assignments
error upon
appellants place
J. The
which
Bobbitt,
great
sufficiency
stress
the
of the
to warrant submis-
challenge
evidence
assignments
the
of the
and third issues. These
sion to
first
judg-
of
directed to the refusal
the court below to sustain their motions
11,
of
13 and
and
its refusal
direct
(AE
14)
ment
nonsuit
12,
15,
first and third issues.
(AE
16.)
in their
verdict
favor
of
appearance
evidence as to
principally
Plaintiff’s case rests
of
evidence as to the
causing
injury;
appearance
involved in
truck
in Matthews
of
at the service station
the truck in
Garmon
possession
at
Police
and thereafter
Station
parked
when he was arrested
who saw
truck at the scene
Monroe; and evidence from two witnesses
Monroe
truck
the Police Station in
and
injury
of
who identified
for submission to the jury
It was sufficient
being the same truck.
was
by Garmon
operated
to whether the truck
connection,
In this
we note that
injury.
causing plaintiff’s
involved in
in criminal prose
of circumstantial evidence
rule as to
sufficiency
Hat
v. Ins.
Shops
civil actions.
from that applicable
differs
cution
and
cited.
Co.,
824,
68 S.E. 2d
cases
JYACHOSKY V. WENSIL. operating Wensil truck witbin bis employment tbe employer’s bis business. furtherance Lines, Motor now, 193,
It is true
as it
when Carter v.
227 N.C.
2d 586,
S.E.
decided,
required
allege
establish that tbe
tbe truck was an
of tbe
in respect
owner thereof and that this
existed at tbe time and
relationship
out of
arose
doctrine
very
injury
tbe
transaction
before the
Parker
As to
for such
respondeat superior applies.
necessity
pleading:
Smith,
Underwood, 239
2d
239 N.C.
765; Hartley
v.
N.C.
v.
S.E.
170,
In Carter Barn- supra, nonsuited, v. Motor hill, reviewing decisions, after out that (now /.), many pointed J. G. after plaintiff, well North Carolina required tbe established rule employment operator by the truck and the showing ownership *8 offer evidence that owner, go positive operator, such further and the at the employer’s respect very was about business time his diffi imposed very which the arose. This rule injury transaction out of injured plaintiff. (Oases on an cult and often insurmountable burden Lines, all supra, with Carter v. Motor cited defendants in accord arising 20-71.1.) to G.S. prior of 494, Session Laws Assembly General enacted Oh.
Thereafter, of Evidence In To Regard “An To Provide New Act 1951, entitled, Rules A Motor Yehicle Involved In Any Of Operator The Of The Agency change did not 20-71.1, This now codified as G.S. statute, Accident.” evidence, chang- did a new rule of rule as It establish liability. basic must show injured plaintiff to what as ing radically requirements v. jury. Hartley passed in order to have his case evidence Underwood, supra. Smith, Parker supra; v. of for the issue to all now submission 20-71.1, required’
Under G.S. of vehicle, the motor injured ownership is that show party jury, registered motor that the vehicle prima by proof be done may facie ownership is estab- charged, if sought name of the person vehicle was evidence that “such motor prima lished this constitutes facie for whose con- of a person and under the control being operated then owner’s within for the responsible, benefit, owner was legally duct the Smith, supra. Hartley v. of scope employment.” the course and from passing the observation that prompts A appraisal candid Lines, prescribed by Motor to the rule supra, v. recognized Carter rule extreme to the swung to have one pendulum G.S. seems 20-71.1, takes the ownership of alone 20-71.1, proof For case other. G.S. under evidence be offered positive required It is jury. not scope or agent employee was then and there operator positive is not required it Moreover, of or agency. his employment 8—240 THE IN
JYACIIOSKY V. WENSIL. evidence be offered that the operator was an or employee agent of the owner.
Evidence offered by defendants tends to show that defendant Wensil was the owner the 1940 of Dodge pick-up truck in defendant Garmon’s possession Matthews on the occasion of his arrest. Plaintiff’s evidence tends to show that C. plate license attached thereto bore license num- ber 841-730. offered registration, by plaintiff, Certificate tends to show that defendant Wensil was the owner in 1951 of the 1940 Dodge pick-up which this was issued. By 20-71.1, license G.S.- virtue proof registration of such was competent and constituted prima facie evidence Defendants’ of error ownership. assignment 10) to its (AE admission in is without merit. if under Ownership, established, evidence G.S. evidence that truck was 20-71.1, prima being operated facie by defendant Garmon defendant Wensil within employee scope of his employment.
The instructed the jury, relation to third issue, if satisfied jury by greater weight evidence defendant Wensil owner of the truck in causing injury involved to plaintiff, then the would the question consider agency; consideration thereof, burden rested proof upon plaintiff satisfy jury by greater 'the evidence that the weight defend- ant Wensil’s truck then and operating Wensil and within the employment agency. ‘When has offered evidence facts sufficient to rise to a give prima case, jury; the ultimate is and when the defend facie ant offers if evidence, which, would establish accepted, legally responsible, the such is for jury. *9 significance of a often prima case has been discussed authorities facie Inc., ante, Motors, cited. Ins. Co. v. 2d 416. The trial S.E. 183, a judge stated law relation to correctly significance prima the the of error case; assignments 19, are without merit. (AE 18, 20) facie True, only positive evidence as to the defend relationship between ant Garmon and defendant Wensil was offered defendants. While to the effect that defendant Garmon was an of defendant Wensil in connection with his to show business, defendants’ evidence tended on on explicitly 1951, between Charlotte wholly defendant Garmon was on a mission Monroe, purely personal Duckworth, In 237 N.C. employer’s unrelated to his business. v. Travis of the tractor- 471, proof ownership 75 S.E. 2d it was held that 309, and there trailer was then prima operator facie of non- agency; of such that motion trial jury; for the a new being suit was issue properly overruled, the give trial peremptory was ordered of the of the because failure TEEM, SPEING C.] instruction to the effect that would answer the agency negative if it found facts to be as defendants’ evidence tended to show, on namely, mission purely personal at the time of the collision. the law as stated Travis v. Correctly applying Duckworth, the trial : supra, judge instructed the as follows Court
“Now, charges you, as a matter of if you believe law, the evidence the defendants was sent from Kinston to Concord on business for Wensil, having transacted the that, defendant Wensil’s on business, his back to and had way Kinston, he was of Monroe, that, reached town Kinston —I mean having reached on having way reached Monroe his back to he then Kinston, Monroe-— turned and drove the truck from to Charlotte on business for Monroe his own, pursuit not business for the defendant and in some- thing entirely unrelated disconnected with his the Court employment, if find to be it would be charges you things true, your duty you those answer the third issue No.”
In addition of the the court restated portion charge quoted above, A reading the same in other instructions. careful proposition was made clear to gives impression quite that it charge relating if to this issue it was their they believed defendants’ evidence “No.” issue, Too, judge repeatedly to answer the third the trial duty burden of issue rested remained emphasized proof and in agency to establish time throughout injury out of which arose. The plaintiff’s transaction respect very Indeed, considered adequate. was correct and charge respects these of law defend- prejudicial we find therein no in its error entirety, ants. admission in evidence testi assign (AE 2)
Defendants him amounts paid by Andrew to show Jyachosky tending mony approximating doctors, nurses, hospital, treatment etc., plaintiff, checked by and canceled checks were and. produced The bills $1,900.00. these payments is that Jyachosky’s counsel for defendants. wife, jointly. him and from funds -to belonging plaintiff, made were Nor is does not there evi joint appear. funds The total amount these co-owners, as between themselves. respective rights as to the dence as State regularly employed had been “that plaintiff is evidence There the latter part since Company Life Insurance Keserve Secretary month. her Whether per $225.00 had been salary and therefrom does paid the amounts funds joint in these interest exceeded damages in elements proper expenses such appear. Ordinarily, *10 Co., 32 S.E. 2d 224 N.C. v. Power Helmstetler wife’s tort action. in dis expended was money her husband’s appear 611. It does not disclosed under the circumstances event, In any bills. charge these IN THE SUPREME COURT. Jyachosky in a separate would be to recover action for these items here, estopped be Consequently, prejudicial no error is made damage. to defendants to appear. (AE 16)
Defendants this from assign excerpt portion this “Now, first issue. charge relating presents question no There is law involved Was it the automo- question. fact. or it? Wensil, wasn’t The Court does not consider bile of the defendant be wit- by reviewing useful served any purpose nesses.” instructions, above. In his
The the first issue set out wording proximate not on cause judge it, questions negligence, trial submitted of the truck in- question identity agency, solely injury. The second issue was: causing plaintiff’s volved the incident injuries caused resulting proximately “If was said collision so, ?” Complaint Here Garmon, alleged of the defendant negligence was instructed exception taken, in a to which judge, charge trial negligence truck bearing alleged jury off car it to causing in forcing (Garmon) correct in certainly car. The parked collide with the fact. Perhaps first issue presented stating in that un- question,” no law involved “There is statement, further considered implications. its sweeping However, and rather necessary prejudicial this remark was to defend- we cannot conclude context, what had decide con- understood ants. It is plain the first issue. cerning 17) excerpt portion as error assign (AE
Defendants alleged by issue: it is “Now, to the third charge relating Dodge panel belonging a red truck the defendant that and admitted was in the the defendant Garmon Wensil driven to the defendant 74 between Charlotte along Highway vicinity general somewhere objection interposed No injured.” the time Monroe at charge when, nor at the close when made, to this statement ?” counsel further, gentlemen “Anything inquiry, to the court’s response would anything that “I don’t believe Wensil observed: for defendant the court ex- to tell forget You did this time. helpful at another having counsel) separate (Garmon’s Funderburk cused Mr. of a truck “pick-up” instead to a “panel” reference appointment.” “panel” No contended inadvertence. was an obvious one Garmon traveled to show that tended All involved. the evidence Monroe and 9:00 between p.m. 7:00 p.m. between Highway #74 driving that he was to show tended Plaintiff’s evidence Charlotte. 7:45 p.m. of Monroe about west miles injury truck that caused 3-3% in or near Char- that Garmon show evidence tended Defendants’ *11 SPRING TERM, 1954. O.] Jyaoiiosky
lotte wben plaintiff injured. Tbe respective of positions and defendants were crystal clear. Tbe quoted of tbe trial statement judge, alone, considered did not develop tbe of precise contentions tbe respective but, parties; considering tbe evidence tbe charge its no there is sound reason to entirety, believe was in any way tbe misled as to defendants’ position. counsel for Evidently, defendants did not so tbe consider at trial suggestion túne for that tbe made or modify clarify tbe statement.
Other of are assignments error brought forward brief of tbe defend- ants, supported by argument but without citation of To authority. dis- cuss each would unduly extend this We have opinion. examined each assignment and find to none sufficient merit constitute reversible error.
Tbe preliminary statement tbe evidence, necessarily incomplete, sharp testimony. indicates tbe conflicts Such conflicts are be determination, largely to resolved on tbe basis of tbe tbe several bad rejected witnesses. Tbe it tbe evidence favorable jury, to or it bad tbe to accepted defendants, might evidence favorable have reached a to However, different conclusion. tbe both tbe facts, trial court and this by Court are bounded jury’s findings. tbe True, proper tbe bis set eases, judge, discretion, may jury’s verdict as being greater weight aside contrary tbe tbe evidence. This Court, limited upon appeal, is consideration of errors of law in tbe court No below. error of law prejudicial has been shown. Tbe result is that judgment tbe below will not be disturbed. court No error. J.,C. is concurring: grave error appearing tbe There
EaRNHill, record. But it is error committed jury. tbe No error by was committed tbe presiding judge unless was error bis part decline to exer- cise bis discretionary power grant tbe motion to set tbe verdict. aside Thus could have saved tbe situation. In absence of prejudicial tbe him, committed we without to disturb authority verdict and judgment entered thereon. nonowner-operator
When a motor by bis vehicle, negligent oper- ation tbe thereof, injures person damages property tbe another, G.S. makes proof 20-71.1 of tbe ownership prima tbe vehicle facie operator time, that tbe tbe was, tbe owner' tbe about bis master’s so business, as to render owner tbe liable dam- ages under of respondeat tbe doctrine fact, This superior. tbe jury but is not may, compelled infer from tbe proof mere ownership, not an inference fact which naturally necessarily follows of’ proof It ownership. is a bare, artificial inference manufactured by statute. THE IN Hackney.
State v. a single appear- it is or circumstance supported by In this case fact fact and every On all of record. ing contrary, disclosed the record tend show that the circumstance *12 of his own time the vehicle without operating on a mission and was at the or express implied or knowledge, consent, approval —of —either testi- reputation impeach to attack the owner. There effort therefore, We must, who so testified. any one witnesses mony Yet the adopted persons integrity. assume character they found permitted by artificial of fact statute bare, inference outweigh positive sufficient to override and all the that it was trials of law While new for errors committed contrary. may grant we error authority without this judge, we are to correct we final arbiter of facts. must verdict. Therefore affirm judgment compels pay plaintiff-$18,000 which he should not offends pay. my This sense required every fair unfortunate justice say I can that it is most play. only deny officersshould be in a must judicial placed position relief law. against injustice the name While we need some such statute be so to afford the an 20-71.1, G-.S. Act should amended as Court in a grant relief ease this kind. opportunity Since the trial committed no in the trial I cause, oath to administer law as it is must, compliance my written, (cid:127) I judgment must be In so doing, concede that entered affirmed. make will my negative language permit. assent join WiNBORNEand JJ., concurring opinion. Paekee, W. STATE v. JAMES HACKNEY. May,
(Filed 1954.) require as to Haw held such Constitutional 34d —Circumstances § appoint noncapital court for defendant case. counsel Hearing Act, proceeding petitioner, in under the Post Conviction Where alleges ignorant, nor he was of limited educa- neither offers evidence that trials, tion, incompetent, inexperienced in his own criminal man and at of of the trial was a had discloses that entered a dence that the time mature years thereto, felony prior plea guilty some without evi- to a behalf, employ had on his own held unable to counsel been requiring ap- any special the court to circumstances insufficient show him, request, point represent and the even his failure counsel to rights appoint him did not violate constitutional court to counsel for