Juan F. TORRES (Louisa M. Torres)
v.
Michael Zeb SMITH, a Minor, by his Guardian Ad Litem, Earl J. Fowler, and Elizabeth A. Lowry.
No. 114.
Supreme Court of North Carolina.
March 1, 1967.*130 Meekins & Roberts, by Landon Roberts, Asheville, for defendant appellant.
Loftin & Loftin, by E. L. Loftin, Asheville, for plaintiff appellee.
HIGGINS, Justice.
The appellant, Mrs. Lowry, challenges the verdicts and judgments against her upon these grounds: (1) all the evidence is to the effect that co-defendant Smith was operating the Ford automobile without the knowledge, consent or permission and against the wishes of the appellant; (2) and if a showing that she was the owner makes out a prima facie case under G.S. § 20-71.1, nevertheless all the evidence being to the contrary, the trial judge should have entered judgment of nonsuit or should have given the jury a peremptory instruction to answer the issues "NO"; (3) if the Court's charge amounts to a peremptory instruction, the same is so restricted as to dilute, minimize and destroy its full benefit.
*131 The critical issues in the cases are not unlike those involved in Whitesides v. McCarson, 250 N.C. 673, 110 S.E.2d 295. The record fails to disclose evidentiary facts sufficient to make out a case of liability against the owner of the vehicle under the doctrine respondeat superior. But for G.S. § 20-71.1, compulsory nonsuit for lack of evidence would be required. Upon a showing of ownership, the artificial force of the prima facie rule under the above Section seems to permit a finding of agency. Haynes Electric Corporation v. Justice Aero Company, 263 N.C. 437, 139 S.E.2d 682. The plaintiffs' evidence does not negate agency. Hence, the statute is sufficient to repel the motion for nonsuit. Dellinger v. Bridges, 259 N.C. 90, 130 S.E.2d 19; Millers Mutual Insurance Ass'n of Illinois v. Atkinson Motors, 240 N.C. 183, 81 S.E.2d 416.
The evidence disclosed that the appellant did not know defendant Smith. She did not consent for him to drive her vehicle. She did not authorize her minor son or anyone else to consent for her. "Ordinarily, one permittee does not have authority to select another permittee without specific authorization * * *", Bailey v. General Insurance Company, 265 N.C. 675, 144 S.E.2d 898; 5 A.L.R. 2d 566; 160 A.L.R. 1195, et seq. The evidence is to the effect the owner gave directions to her son to take the vehicle to the Atlantic Station for the repairs she had discussed with owner Jones. The son obeyed the instructions, took the vehicle to the garage for the repairs; Mr. Jones was not present and Smith said that Jones was in town and that he, Smith, had helped put in the clutch and knew how to repair it.
Smith stated he had only a permit and not an operator's license but that Bailey, his friend, had a driver's license and would help him return the Ford to the garage. Thereafter, the owner's son, with his sister, co-defendant Smith and Smith's friend Bailey in the vehicle, drove to the Holiday Inn. Thereafter, Smith took over and was on his way back to the garage when the accident occurred. Smith was operating the vehicle without authority of the owner who had not authorized her son or anyone else to turn her vehicle over to Smith, an unlicensed driver.
The evidence entitled the appellant to the peremptory instruction which this Court said should have been given in the Whitesides case, "to answer the agency issue, `NO', if they find the facts to be as the evidence in behalf of the defendant-owner tends to show."
The Court actually charged:
"The presumption which is raised by this statute is subject to being rebutted and set aside by other evidence in the case, and with respect to that, members of the jury, I will instruct you that if you believe the evidence in this case produced by the defendants, and find the facts to be as that evidence tends to show, that is that the defendant Smith was at the time of the collision on a mission of his own, or for the Clifford Jones Atlantic Service Station, then it would be your duty to answer that fourth issue NO, and in the other case the third issue NO."
The Court instructed the jury that if the defendant Smith was at the time of the collision on a mission of his own or for Clifford Jones Atlantic Service Station, then it would be the jury's duty to answer the fourth issue NO (in Mr. Torres' case) and the third issue NO (in Mrs. Torres' case). The vice in the instruction is the limitation which requires a "NO" answer only upon the basis of a finding that Smith was on a mission of his own or on a mission for the Atlantic Service Station. The appellant's contention all along had been that she did not know Smith, she did not authorize him or delegate the authority to anyone to authorize him to operate her vehicle for himself, for the Atlantic Service Station, or for any other purpose. Any use he made of her vehicle was without her knowledge, consent or *132 authority. From the charge as given, the jury may well have concluded that the agency of Smith to drive the Ford was established. Hence the appellant could be relieved of responsibility for his negligence only by a finding he was on a mission of his own or for Jones Atlantic Service Station. Such is the rule of liability for an agent. Here appellant denies the agency, and all the evidence except this statute supports her contention.
The Court should have charged the jury to answer the issue "NO" if they found the facts to be as the evidence in behalf of the defendant owner tended to show, Whitesides v. McCarson, supra. The peremptory instruction actually given denied the appellant the full benefit of her testimony. This error entitles appellant to a
New trial.