Glenn H. FOX
v.
Clyde W. ALBEA, Individually, and Clyde W. Albea, Executor of the Estate of Lorene Kerr Albea.
No. 382.
Supreme Court of North Carolina.
June 12, 1959.*203 Scott, Collier & Nash, Jack R. Harris, Statesville, Smith, Moore, Smith, Schell & Hunter, Stephen Milliken, Greensboro, for defendant-appellant.
R. A. Hedrick, Baxter H. Finch, Statesville, for plaintiff-appellee.
WINBORNE, Chief Justice.
While defendant concedes that there is sufficient evidence of negligence on the part of Mrs. Albea to take the plaintiff's case to the jury, and to sustain a verdict against her estate, the defendant individually, Clyde W. Albea, contends that there is not sufficient evidence in any aspect to make a prima facie case of liability against him for her acts. He challenges, and we hold properly so, the charge of the court applying the provisions of G.S. § 20-71.1 and the family purpose doctrine.
In this connection the record of case on appeal discloses that the only evidence offered by plaintiff, in respect to G.S. § 20-71.1 is the certificate of title of the automobile driven by Mrs. Albea at the time of the collision here involved showing registration in the names of "Clyde William Albea, Sr., and Lorene Kerr Albea, or survivor." By this means plaintiff invokes the provisions of the statute to make out a prima facie case of agency as between Mrs. Albea and Clyde William Albea, her husband, to hold him liable for her acts in the operation of the said automobile.
G.S. § 20-71.1 is a codification of Chapter 494 of Session Laws 1951 entitled "An Act To Provide New Rules Of Evidence In Regard To The Agency Of The Operator Of A Motor Vehicle Involved In Any Accident."
It reads in pertinent part as follows: "(a) In all actions to recover damages for injury to the person or to property or for the death of a person, arising out of an accident or collision involving a motor vehicle, proof of ownership of such motor vehicle at the time of such accident or collision shall be prima facie evidence that *204 said motor vehicle was being operated and used with the authority, consent, and knowledge of the owner in the very transaction out of which such injury or cause of action arose. (b) Proof of the registration of a motor vehicle in the name of any person, firm, or corporation, shall for the purpose of any such action, be prima facie evidence of ownership and that such motor vehicle was then being operated by and under the control of a person for whose conduct the owner was legally responsible, for the owner's benefit, and within the course and scope of his employment * * *." This statute, as declared by this Court in Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767, 772, in opinion by Barnhill, J., later C. J., is "designed to create a rule of evidence. Its purpose is to establish a ready means of proving agency in any case where it is charged that the negligence of a nonowner operator causes damage to the property or injury to the person of another. * * * It does not have, and was not intended to have, any other or further force or effect."
And the case of Travis v. Duckworth, 237 N.C. 471, 75 S.E.2d 309, is cited in approval. To like effect are Roberts v. Hill, 240 N.C. 373, 82 S.E.2d 373, and Osborne v. Gilreath, 241 N.C. 685, 86 S.E.2d 462.
In the Roberts case, supra [240 N. C. 373, 82 S.E.2d 378], this Court, in opinion by Barnhill, C. J., had this to say: "A careful consideration of the original Act * * * including its caption, leads us to the conclusion that it was designed and intended to apply, and does apply, only in those cases where the plaintiff seeks to hold an owner liable for the negligence of a nonowner operator under the doctrine of respondeat superior. `Its purpose is to establish a ready means of proving agency in any case where it is charged that the negligence of a nonowner operator causes damage to the property or injury to the person of another. Travis v. Duckworth, 237 N.C. 471, 75 S.E.2d 309. It does not have, and was not intended to have, any other or further force or effect.' Hartley v. Smith, 239 N.C. 170 [79 S.E.2d 767]. (Emphasis added.) This language appearing in the Hartley case was used advisedly. We adhere to what is there said."
Further, in the Osborne case, supra [241 N.C. 685 86 S.E.2d 465], this Court in opinion by Parker, J., in disposing of an unacceptable contention, said: "To adopt plaintiff's view would require us to overrule what was said by Barnhill, J., in speaking for a unanimous Court in Hartley v. Smith, supra, and by Barnhill, C. J., for a unanimous Court in Roberts v. Hill, supra." Then what is said in this respect in Hartley v. Smith, supra, and in Roberts v. Hill, supra, concluded by saying: "We adhere to what was said in the excerpts from those two cases quoted above."
Now the Court adheres to what is there said.
And applying this provision to the case in hand, it is seen that the operator of the automobile in question, if the ownership be as reflected by the registration, is the owner, and the provisions of G.S. § 20-71.1 are inapplicable. Hence the charge applying them to case in hand is erroneous and constitutes error for which a new trial must be had.
Furthermore the plaintiff having alleged the existence of factual situation tending to bring the case under family purpose doctrine and defendant having denied these allegations, and offered evidence contradicting same as to agency, "such evidence may warrant a peremptory instruction based thereon but not a judgment of nonsuit." See Davis v. Lawrence, 242 N. C. 496, 87 S.E.2d 915, 916.
In this connection, while the record of case on appeal in instant case shows exception No. 12, assignment of error No. 7, to the failure of the trial court to give peremptory instruction, the record does not show written request therefor. See McIntosh N. C. P. & P., W. & W., Vol. 2, Sec. 1517.
*205 Lastly, the appellant assigns as error the granting of motion of plaintiff, aptly made, for judgment as of nonsuit of cause of action on counterclaim set up by defendant.
Bearing in mind that defendant avers in the further answer and counterclaim a cause of action for actionable negligence proximately causing damage in three phases (1) for damage to automobile, (2) for physical pain and suffering after accident and prior to death, and (3) for wrongful death, upon the trial he offered evidence susceptible of supporting inference.
Therefore exception to the granting of the nonsuit on the counterclaim is well taken.
Hence the judgments entered upon trial below are set aside, and a new trial ordered.
New trial.