James Ivey WILLIAMSON
v.
James Hal VARNER and Lula Luther Saunders.
No. 527.
Supreme Court of North Carolina.
April 27, 1960.*94 H. Wade Yates, Asheboro, for appellant James Hal Varner.
No counsel contra.
RODMAN, Justice.
The sole question now for consideration is the correctness of the ruling nonsuiting the counterclaim of Varner. The judgment entered at the September Term on Varner's motion dismissing plaintiff's action against Varner did not affect Varner's claim against plaintiff. Varner's cause of action stated as a counterclaim remained on the docket and required a determination. G.S. § 1-183.1.
Varner cannot recover from plaintiff unless plaintiff negligently caused damage to Varner's motor vehicle. To establish negligence proximately causing damage, Varner alleged that plaintiff was operating his motor vehicle on a public highway at night and without lights. If so, this was a violation of a statutory provision, G.S. § 20-129, enacted for the protection of those using the highways. Such violation is a misdemeanor, G.S. 20-176, and is negligence per se. State v. Norris, 242 N.C. 47, 86 S.E.2d 916; State v. Eason, 242 N.C. 59, 86 S.E.2d 774; Thomas v. Motor Lines, 230 N.C. 122, 52 S.E.2d 377; Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331; Chaffin v. Brame, 233 N.C. 377, 64 S.E.2d 276.
There is positive and unequivocal evidence from Varner's witnesses that plaintiff's automobile had no lights. He was traveling south on Highway 220. Varner's automobile, operated by Saunders, was traveling north on that highway. Varner's evidence is sufficient to support a finding that Saunders, traveling north, gave signal of her intention to turn left into Walker Avenue. She was confronted with a green light. A car with headlights was approaching. She stopped and waited for that car to pass. Seeing no other car approaching and with a signal indicating her intention, she executed her turn and was in the intersection and past the center of the intersection when she was struck by the motor vehicle operated by plaintiff traveling at an unreasonable rate of speed under existing conditions. Plaintiff maintained that his vehicle was equipped with headlights, that he saw Saunders approaching, saw the turn signal that she gave, but did not anticipate that she would execute a left turn immediately in front of him. This dispute with respect to the factual situation can only be resolved by a jury, unless a jury trial is waived and the judge is permitted to find the facts.
Plaintiff filed no reply to Varner's counterclaim. He does not, eo nomine, allege contributory negligence as a defense to the counterclaim. His complaint does, *95 however, allege negligence on the part of Saunders, and he alleges that Saunders was Varner's agent. The allegations so made are, in our opinion, sufficient to serve as a plea imputing Saunders' negligence to Varner and sufficient to defeat Varner's claim, if established. There was no necessity for merely repeating the same allegations with respect to the negligence of Saunders and the imputation of this negligence to Varner.
If the jury should find that plaintiff was negligent and that his negligence was one of the proximate causes of the damage to Varner's automobile, whether the liability so created could be defeated by negligence of Saunders would depend upon the relation existing between Saunders and Varner. Plaintiff alleges that Saunders was Varner's agent and at the time of the collision was acting in the course and scope of her employment. He alleges and Varner admits ownership of the vehicle driven by Saunders. Plaintiff has, therefore, the benefit of the statutory presumption of agency. G.S. § 20-71.1. If Saunders was an agent of Varner, and she was negligent, and such negligence was a proximate cause of the collision, Varner could not recover.
Varner and Saunders, however, deny the allegations of agency and allege facts establishing the relationship of bailor and bailee between Varner and Saunders. In an action by bailor against a third party, bailee's negligence is not imputed to bailor. Sink v. Sechrest, 225 N.C. 232, 34 S.E.2d 2; Martin v. Greensboro-Fayetteville Bus Line, 197 N.C. 720, 150 S.E. 501.
Hence an issue of fact arises on the pleadings and evidence, namely: Was Saunders the agent of Varner? If Saunders was agent and acting in the scope of her agency, her negligence would be imputed to her principal, Varner, and would bar recovery by him. If she was not his agent, but a mere bailee, her negligence would not defeat Varner's claim.
Whether Saunders was guilty of negligence which was the proximate cause of the collision is, also, we think, a question of fact that must be decided by a jury. Since the rights of the parties cannot be determined as a matter of law, it follows that the judgment is
Reversed.