Randall Insurance v. O'Neill, 258 N.C. 169

Randall Insurance v. O'Neill

258 N.C. 169 | N.C. | 1962

Higgins, J.

One of plaintiff’s exceptions involved the admission of evidence with respect to the damage to the Renault. On cross-examination, Mr. Randall, president of the plaintiff, was asked if he sold the vehicle for salvage. He replied, no. He was then asked who did *171sell it. He replied: “The adjuster for the insurance company that carried my company’s fire, theft and collision insurance.” When asked who sold the vehicle, he could have answered, giving the name of the seller or the auctioneer, or, if he did not know, he could have said so. Instead, he gave the reply above quoted, volunteering the information as to his company’s fire, theft 'and collision insurance.

The court refused to strike the evidence upon the ground the plaintiff’s president had himself volunteered the statement. The refusal to strike is the subject of plaintiff’s assignment of error No. 1. The plaintiff cannot be heard to complain of an error it induced. Brittain v. Blankenship, 244 N.C. 518, 94 S.E. 2d 489. Other objections to evidence are inconsequential.

The plaintiff’s assignment of error No. 8 challenges the court’s charge that proof of ownership of a motor vehicle involved in an accident is prima jade evidence the vehicle at the time of the accident was being used with the owner’s authority, and in connection with the owner’s business. The president of the company testified the plaintiff authorized him to use the vehicle in going to and from his home so that he would have it handy for company business before and after office hours; and also as a means of providing storage not available at the company’s office. To permit the company to defend now upon the ground that Mr. Randall was using the vehicle on a private mission would be blowing both hot and cold. The statute and the evidence were sufficient to support the affirmative answer to the issue of agency.

The charge of the court on the prima fade presumption which follows proof of ownership was in accordance with the law in effect at the date of the trial. The presumption relates to the rule of evidence and procedure rather than to substantive rights. “In Tabor v. Ward, 83 N.C. 291, the Court declares that laws which change the rules of evidence relate to the remedy only, and are at all times subject to modification and control by the Legislature, and that changes thus made may be made applicable to existing causes of action.” Spencer v. Motor Co., 236 N.C. 239, 72 S.E. 2d 598.

It is true, at the time of the accident the prima facie presumption arising from proof of ownership applied only to actions brought within one year. However, the General Assembly, by Chapter 975, Session Laws of 1961, struck out the one year limitation. Consequently at the time of the trial the limitation had been removed. Under Spencer v. Motor Co., supra, the defendant was entitled to the benefit of the presumption, although more than one year had elapsed between the date of the accident and the date he filed his counterclaim.

We have examined all assignments of error relied on by the plaintiff. They are without merit.

No error.