Osborne v. Gilreath

86 S.E.2d 462 (1955)

241 N.C. 685

Jesse A. OSBORNE, Administrator of the Estate of Dorothy Jean Osborne v. Charles GILREATH.

No. 239.

Supreme Court of North Carolina.

March 23, 1955.

*463 W. H. McElwee, Jr. and Ralph Davis, No. Wilkesboro, for plaintiff, appellant.

Larry S. Moore, Trivette, Holshouser & Mitchell and Robert M. Gambill, No. Wilkesboro, for defendant, appellee.

PARKER, Justice.

In his complaint plaintiff first alleges that the defendant was operating the automobile *464 at the time it overturned. Further on he alleges that at the time it was being operated by the defendant, or by some one under his direction and control. And further on he alleges that the defendant was either operating the automobile or controlling its operation.

All of plaintiff's evidence as to the operator of the automobile at the time it overturned is the statement of the defendant to the State Highway Patrolman Arledge, "that it was all his fault * * * the deceased girl was driving the automobile at the time of the fatal collision."

It seems to us, considering the evidence in the light most favorable to the plaintiff, that the evidence shows that plaintiff's intestate was driving the automobile when it overturned, and that plaintiff's repeated statements it was all his fault was an expression of his distress of conscience in permitting an inexperienced 15-year old girl to drive his automobile and to turn it over causing her tragic and untimely death. The statement of defendant here is a far cry from the statement in Wells v. Burton Lines, Inc. (Stanley v. Burton Lines, Inc.), 228 N.C. 422, 45 S.E.2d 569, in which the appellant said, without qualification, that the collision was his fault. See also the remorseful statement of the defendant in an automobile collision in Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383. While the plaintiff has allegation that the defendant was driving the automobile at the time, he lacks proof. While there is allegation that the defendant interfered with the operation of the automobile, there is no proof of such allegation.

Plaintiff further alleges that the automobile at the time was being operated by the defendant, or by some one under his direction and control, and contends in his brief, that if either plaintiff's intestate or Clint Johnson or Margaret Hayes was operating the automobile, he is entitled to go to the jury by virtue of G.S. § 20-71.1, entitled, "Registration evidence of ownership; ownership evidence of defendant's responsibility for conduct of operation."

G.S. § 20-71.1 establishes a rule of evidence, but does not relieve a plaintiff from alleging and proving negligence and agency. Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767; Parker v. Underwood, 239 N.C. 308, 79 S.E.2d 765. In Parker v. Underwood, plaintiff alleged that the driver of defendant's vehicle was his son and at the time was operating his father's automobile "`with the express consent, knowledge and authority'" of his father. The provisions of G.S. § 20-71.1 could not save the complaint when a demurrer was filed. In Jyachosky v. Wensil, 240 N.C. 217, 81 S.E.2d 644, plaintiff alleged that the automobile owned by defendant Wensil was operated by defendant Garmon, who, upon the occasion, was an employee of defendant Wensil, and then and there acting within the scope of his employment.

Plaintiff in his complaint alleged that his intestate met her death as a proximate result of defendant's negligence. And in his amended complaint he alleges that his intestate's death was caused by defendant's negligence, and set forth five specifications of defendant's negligence. He has alleged no negligence against any other person.

By reason of plaintiff's total failure to allege agency and negligence of his intestate or Clint Johnson or Margaret Hayes, he cannot invoke the aid of G.S. § 20-71.1.

Plaintiff cannot call to his aid the principle that a person, who by his independent and wrongful breach of duty entrusts his automobile to one he knows or should know is likely to cause injury by reason of incompetency, carelessness or recklessness, and injury to a third person results proximately from such incompetency, carelessness or recklessness, is liable in damages, because he has no allegations in his complaint and amended complaint to invoke the application of this principle of law. Roberts v. Hill, 240 N.C. 373, 82 S.E.2d 373; Heath v. Kirkman, 240 N.C. 303, 82 S.E.2d 104; McIlroy v. Akers Motor Lines, 229 N.C. 509, 50 S.E.2d 530; Bogen v. Bogen, 220 N.C. 648, 18 S.E.2d 162; Taylor v. Caudle, 210 N.C. 60, 185 S.E. 446; Cook v. Stedman, 210 N.C. 345, 186 S.E. 317.

*465 The plaintiff states in his brief, "We think, therefore, that certainly G.S. § 20-71.1 is applicable to this case and that proof of ownership alone is sufficient to send the case to the jury on the theory that the defendant himself was operating the motor vehicle."

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. In Hartley v. Smith [239 N.C. 170, 79 S.E.2d 772], speaking of G.S. § 20-71.1, it is said: "This statute was 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. 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." In Roberts v. Hill, supra [240 N.C. 373, 82 S.E.2d 378], Barnhill, C. J., said, after quoting the above excerpt from Hartley v. Smith, except the first sentence: "This language appearing in the Hartley case was used advisedly. We adhere to what is there said." The plaintiff contends that this construction of G.S. § 20-71.1 makes a man responsible for the acts of his agents and not responsible for his acts, and is a novel legal phenomenon. The language of this Court in the Hartley and Roberts Cases bears no such construction, and in no way relieves a man from responsibility for his own wrongful act proximately causing injury. We adhere to what was said in the excerpts from those two cases quoted above.

While there is a modern tendency to question, or to modify, or to overrule many ancient landmarks of the law by court decisions and legislative fiats, these principles of law seem, as yet, to be unchallenged, that if a plaintiff is to succeed at all, he must do so on the case alleged in his complaint, Sale v. State Highway & Public Works Commission, 238 N.C. 599, 78 S.E.2d 724, and that allegation and proof are both essential, Aiken v. Sanderford, 236 N.C. 760, 73 S.E.2d 911.

The Trial Court ruled correctly, and the judgment of nonsuit entered below is

Affirmed.

BARNHILL, C. J., took no part in the consideration or decision of this case.