Aрpellants make nineteen assignments of error based on fifty-seven exceptions. Many of the exceptions and assignments are not brought forward in their brief, and these are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court,
(1) Appellants demurred to the complaints on the ground that they do not state sufficient facts to constitute causes of action as to defendants Jernigan in that “it appears upon the face of thе complaint (s) that the sole proximate cause of the motor vehicle collision . . . was the negligence of defendant Atlas M. Register.” The demurrers were overruled. Appellants in apt time moved for nonsuits. The motions were overruled. The demurrers and motions for nonsuit will be considered together since some of the principles of law decisive of the demurrers apply also to the motions for nonsuit.
Appellants contend that the purported allegations of actionable negligеnce as to them are mere conclusions of the pleader and are inconsistent with and repugnant to the factual allegations which show that Register’s negligence was the sole proximate cause of the collision. They assert, in summary, that the complaints allege that Carolyn Faye Jernigan gave a lawful turn signal and was making a lawful turn when Register, travelling at a high and dangerous rate of speed, crossed a double yellow line, attempted to pass at an intersection where passing was unlawful, and ran into the Jernigan car. They further assert that there is no allegation that Register sounded his horn, blinked his lights, or did anything which would give notice — at a time when effective action might be taken by driver Jernigan — that he would unlawfully attempt to pass. Appellants contend, therefore, that the pleaded conclusions that Carolyn Faye Jernigan failed to control her vehicle, failed to keep a reasonable lookout, and had timely notice of Register’s movements are unsupported by fаctual allegations, do not sufficiently allege negligence on the part of defendants Jernigan, and the demurrers should have been sustained.
We do not agree with appellants’ estimate of the sufficiency of the complaints. The pertinent allegations of the complaints, in summary, except where quoted, are: Notwithstanding the fact that Carolyn Faye Jernigan “had her blinker light on, indicating she was going to make a left turn, she proceeded to make the left turn when she saw or, by the exercise of reasonable care, should have seen that the said Atlas M. Register was operating his . . . automobile at a high and *166 dangerous rate of speed and was going to overtake and pass her, and she knew or, by the exercise of reasonable care, should have known that said turn or movement could not be made in safety, and that she had ample time and notice to avoid said collision by the exercise of due care.” She was operating the car without keeping a proper lookout. Plaintiffs’ injuries were caused by the joint and several acts of defendants, which combined and concurred in proximately producing such injuries.
It is only required that a complaint contain a concise statement of the ultimate facts constituting the cause of action.
Thomas & Howard Co. v. Insurance Co.,
241 N.C.
109, 84
S.E. 2d
337.
It should not allege the evidentiary facts required to prove the existence of the ultimate facts.
Daniel v. Gardner,
Thе complaint does not, as suggested by appellants, allege both a lawful and an unlawful turn on the part of driver Jernigan. G.S. 20-154(a) provides in part that “The driver of any vehicle upon a highway before . . . turning from a direct line shall first see that such movement can be made in safety, and . . . shall give a signal as required in this section. . . .” The statute imposes two duties upon a motorist intending to turn, (1) to see that the movement can be made in safety, and (2) to give the required signal when the operation of any other vehicle mаy be affected. A motorist is negligent as a matter of law if he fails to observe
either
of these statutory precautions, and his negligence in such respect is actionable if it proximately causes injury to another.
Mitchell v. White,
“There may be two or more proximate causes of an injury. These may originate from separate and distinct sources or agencies operating indepеndently of each other, yet if they join and concur in producing the result complained of, the author of each cause would be liable for the damages inflicted, and action may be brought against any one or all as joint tort-feasors.”
Barber v. Wooten,
There was no error in overruling the demurrers, and the motions for nonsuit were properly denied. Defendants offered evidence, so the only motions for nonsuit to be considered are those made at the close of all the evidence. And the evidence, whether offered by plaintiffs or defendants, must be taken in the light most favorable to plaintiffs.
Murray v. Wyatt,
The evidence tends to show: When Carolyn Faye Jernigan was about 200 feet from the intersection she turned on the mechanical blinking device giving a left turn signal; it made a clicking noise in the car. Plaintiff Flowers looked back and saw the lights of a car which was maintaining a high rate of speed. It was coming fast, and was beginning to “careen” to the left side of the highway. It “wasn’t too far” back. Mrs. Flowers said: “Faye, you had better not turn, for if you do that car will hit you.” Faye replied: “He had better not, because I have got on my signal light.” Plaintiff Tart looked back and said: “There sure is one coming fast; you had better not turn, he will hit us.” At this time the Jernigan car was 100 feet from the intersection and still in the west lane. Faye (according to her testimony) was aware that there was a car behind, looked in her rear-view mirror when about 100 feet from the intersection, but did not continue looking because she “had given . . . signal long enough that (she) thought the person behind . . . was supposed to have control of the car.” When about 25 feet from the intersection she turned left, but did not reach the dirt. The cars collided in the east lane.
It is true that G.S. 20-154 (a) does not mean that a motorist may not make a left turn on a highway unless the circumstances be absolutely free from danger. Only reasonable care must be exercised in determining that the movement may be made in safety.
Cooley v.
*168
Baker,
(2). Appellants assign as error the action of the court below (a) in admitting in evidence, over their obj ections, the testimony of plaintiffs, quoted above, that they warned driver Jernigan if she turned the Register car would hit hers, and (b) in restating this evidence in the charge while recapitulating the evidence, giving plaintiffs’ contentions, and applying the law to the facts. This assignment of error is not sustained.
When a startling or unusual incident occurs, the exclamations of a participant concerning the incident, made spontaneously and contemporaneously and without time for reflection or fabrication, are admissible as
pars res gestae.
Stansbury: North Carolina Evidence, s. 164, pp. 346-348;
Woods v. Roadway Express, Inc.,
(3). Defendant Register, over objection of appellants, was permitted to testify that Miss Jernigan put on a turn signal but turned it off before reaching the intersection, leading him to believe she did not intend to turn. In this we find no error.
Register, in his answer, denied that Jernigan gave any signal or warning of her intention to turn. It is true that plaintiffs do not rely on a failure to give a turn signal and actually allege that the signal was given. A careful reading of the charge will show that the judge applies this testimony only in giving the contentions of defendant Register. The charge once alludes to this evidence in giving the plaintiffs' contentions, but the court explains that “Plaintiffs contend that you should find that she (sic) was operating the signal.” There was no request to limit the jury’s consideration of the evidence, but the court carefully and deftly limited its application to the proper sphere of competency.
(4). At the time of the trial and entry of judgment defendant Carolyn Faye Jernigan was a minor without general or testamentary guardian. After verdict, but before judgment was entered, it was discovered that no guardian ad litem had been appointed to represent her in these suits. A motion had been lodged by defendants to set aside the verdicts, as contrary to the weight of the evidence, and for a new trial. “Hearing on these motions was by consent of counsel for all parties continued until the November Term ... in Johnston County.” Pending the hearing on these motions, Judge Carr appointed a guardian ad litem for Miss Jernigan on 25 November 1961. The guardian ad litem filed his reports on 29 November 1961. In the final judgments on 2 December 1961 Judge Cаrr found facts, based on the reports of the guardian ad litem, and they are paraphrased in part and quoted verbatim in part as follows:
“The Court finds as a fact that Franklin T. Dupree, Jr. is a competent attorney and that he vigorously defended this action in the trial before the jury, and that he has done everything that would have been done in the defense of said minor if a guardian ad litem had been appointed and that her interest up until this time has been properly and adequately protected.”
The guardian ad litem made a thоrough investigation of the pleadings and of the facts surrounding the defense of said actions, reported his findings, adopted the pleadings filed in the case on *170 behalf of the minor, and requested that Mr. Dupree, attorney, continue to represent the minor and the guardian ad litem until the action is finally terminated.
“The Court finds as a fact from the report of said guardian ad litem that the interests of said minor have been fully and amply protected and to the same extent as if a guardian ad litem had been appointed at the time said action was instituted. . . .”
The minor appellant questions the jurisdiction of the court to appoint a guardian ad litem for her after verdict and thereafter to enter a valid judgment against her and the guardian.
The question has not heretofore been expressly decided in this jurisdiction. In an action to vacate a deed of gift, a plaintiff, father of minor defendants, was appointed guardian
ad litem, nunc pro tunc,
for them. It was held that he was disqualified to serve because of his colorable adverse interest, and that his appointment was “fatal error which cannot be cured by any evidence of goоd faith or want of injustice.” By way of
obiter dictum
it was stated that the minors are entitled to protection “at every stage of the proceeding; and we cannot approve of an order appointing a guardian
ad litem nunc pro tunc.” Ellis v. Massenburg,
The basic principles in this area of the law, almost universally followed, are stated thus: “While the appointment of a guardian ad litem for an infant defendant is not jurisdictional in the sense that failure to make such appointment deprives the court of power to act and renders such judgment void, a judgment rendered against an infant in an action in which he was not represented by a guardian ad litem or a general guardian is erroneous, and can be overthrown by writ of error coram nobis, or by motion in the same court, or by proper appellate proceedings, at least where the want of such representative affects the substantial rights of the infant.” 27. Am. Jur., Infants, s. 121, p. 842.
In the case at bar, we hold that the belated appointment of the guardian
ad litem
does not affect the court’s jurisdiction. The failure to appoint at the stage of the action contemplated by the statute
*171
(G.S. 1-65.1) was error. Infants are favorites of the courts, and the courts are duty-bound to protect their rights and interests in all actions and proceedings whether they are represented by guardians or not.
Trust Co. v.
Buchan,
(5). The court submitted the following issue: “Was the defendant Carolyn Faye Jernigan operating the 1954 Chevrolet of Thelma Bryant Jernigan as the agent of Thelma Bryant Jernigan, that is as a member of the family of Thelma Bryant Jernigan, under the family purpose doctrine, as alleged . . .?” The jury answered in the affirmative. Appellants excepted to the submission of the issue, and contend that the еvidence was insufficient to support a finding of agency under the family purpose doctrine.
The evidence as to the ownership, control and use of the Jernigan car is in substance as follows: The Chevrolet was given to Carolyn Faye Jernigan by her mother, Thelma Bryant Jernigan, and her uncle as a graduation gift. It was registered in her mother’s name because Faye was a minor. Faye used it in driving to and from her work at Wellon’s Candy Company, and for other purposes. She has always lived in the home of her pаrents and has kept the car there; she earned wages and helped with household expenses as she saw fit, but in no definite regular amount. She bought gasoline and oil for the car and paid for its upkeep. She did not ask her mother’s permission to use the car, but usually told her mother where she was going if her mother was present at the time. She still “minds” her mother, but has the right to use the car without her mother’s permission. Her mother has a car of her own, but “the car that’s closest to the road is the one that” her mother drives “or that she (Faye) drives.” Faye was not on any business for her mother at the time of the collision, but was returning from work — on the “night shift.”
“Ordinarily, a cause of action based solely on the family purpose
*172
doctrine is stated by allegations to the effect that at the time of the accident the operator was a member of his family or household and was living at home with the defendant; that the automobile involved in the accident was a family car and was owned, provided and maintained for the general use, pleasure, and convenience of the family, and was being so used by a member of the family at the time of the accident with the consent, knowledge and approval of the owner of the car.”
Lynn v. Clark,
Elliott v. Killian,
The evidence is sufficient to take the instant case to the jury on the family purpose doctrine, and appellants’ exception is not well taken.
(6). Hospital and doctor’s bills incurred by plaintiff Flowers because of injuries received in the collision, in thе amount of 1395.25, were paid under automobile medical payments insurance coverage on the Jernigan car, which coverage obligated the insurer to pay these expenses irrespective of any tort liability on the part of defendants Jernigan. Over objection of appellants, plaintiff Flowers was permitted to testify that she incurred these expenses, and the jury was permitted to consider them in awarding damages. Appellants contend that it was error to permit her to recover double damages in this amount.
In recent years insurers have issued comprehensive automobile liability policies which, in addition to the liability clause for payment on *173 behalf of insured any tort liability within policy limits, contain a medical payment clause obligating insurer to pay directly to persons injured, irrespective of negligence, medical expenses incurred by reason of the operation of the described automobile. An additional premium is collected on accоunt of the medical payment clause.
By the great weight of authority a person injured by reason of the operation of an automobile insured under such comprehensive policy may recover under both the liability clause and the medical payment clause, even though it amounts to a double recovery of medical expenses.
Dumas v. United States Fidelity and Guaranty Co.,
125 S. 2d 12 (La. 1960);
Bordelon v. Great American Indemnity Co.,
124 S. 2d 634 (La. 1960);
Warren v. Fidelity Mutual Insurance Co.,
99 S. 2d 382 (La. 1957);
Distefano v. Delta Fire and Casualty Co.,
98 S. 2d 310 (La. 1957);
Severson v. Milwaukee Automobile Insurance Co.,
In the Distefano case (which overruled an earlier Louisiana case, Hawayek v. Simmons, 91 S. 2d 49) insurer had previously paid, as in the instant case, medical expenses, and it was held that plaintiff could also recover these expenses under the liability clause. The court reasoned as follows:
“ (Insurer’s) responsibility under its liability coverage depended upon its insured being shown negligent; its responsibility under its Medical Payments Coverage had nothing to do with negligence at all.
“A claim based on the liability feature of the policy is a tort claim; a claim based on the medical payments feature of the policy is a claim sounding in contract.
“If (insurer) had two separate policies, one granting liability coverage and one granting Medical Payments Coverage, that would be no different than the situation as it presently exists where both coverages are furnished under the same policy.”
But under a policy containing a provision that the amount payable pursuant to its general liability clause should be reduced to the extent of payments made undеr the medical expense features of the contract, it was held that double recovery for medical expenses would not be *174 allowed. Bowers v. Hardware Mutual Casualty Co., 119 S. 2d 561 (La. 1960.)
In the instant case the insurance policy is not a part of the record. The provisions of the policy are not before us. Indeed, it may contain a provision such as that involved in the
Bowers
case. But regardless of this, the trend of decision in this jurisdiction is contrary to the majority rule on the facts presented in the case at bar.
Jordan v. Blackwelder,
Appellants are entitled to a credit of $395.25 against the recovery of plaintiff Flowers in this case, and the judgment below will be modified so as to allow this credit; as thus modified the judgment is affirmed.
In the trial of plaintiff Tart’s action, no error.
Judgment in plaintiff Flowers’ action, modified and affirmed.