Passmore v. Smith

147 S.E.2d 238 (1966)

266 N.C. 717

Carolyn Smith PASSMORE v. Johnny Carroll SMITH and Floyd L. Carroll. Vickie Lynn PASSMORE, by her Next Friend, Paul G. Sylvester, v. Johnny Carroll SMITH and Floyd L. Carroll. JoAnn HUMPHREY, by her Next Friend, Paul G. Sylvester, v. Johnny Carroll SMITH and Floyd L. Carroll.

No. 201.

Supreme Court of North Carolina.

March 23, 1966.

*240 Ellis, Hooper, Warlick & Waters, Jacksonville, for plaintiffs appellees.

Joseph C. Olschner, Jacksonville, for defendants appellants.

BOBBITT, Justice.

There was ample evidence to take the case to the jury on all issues raised by the pleadings in the three cases.

Defendants' assignments of error relating to the negligence issues, the contributory negligence issue in Mrs. Passmore's case, and the issues as to damages, do not disclose prejudicial error. While all have been considered, these assignments do not present questions of such nature as to merit particular discussion.

Apparently, plaintiffs' counsel and the court considered the damages awarded each child excessive. The record tends to support that view. Suffice to say, the voluntary reduction of their recoveries as established by the judgments tendered by their counsel was not prejudicial to defendants.

In each case, the second (agency) issue is worded as follows: "2. Was the defendant, Johnny Carroll Smith, operating the automobile owned by the defendant, Floyd L. Carroll, as the agent of Floyd L. Carroll at the time of the collision alleged in the complaint?"

It is alleged in each complaint that, at the time of the collision, Smith was operating the Ford "with the express consent and permission" of Carroll, the owner, and "was acting * * * as agent for * * * Carroll and within the course and scope of his employment and about the business of * * * Carroll." Defendants' denial of these allegations raised the quoted second (agency) issue.

There is neither allegation nor evidence that Smith was Carroll's agent under the family purpose doctrine. Plaintiffs seek to establish Carroll's liability for Smith's negligence under the doctrine of respondeat superior.

By virtue of the provisions of G. S. § 20-71.1, Carroll's admitted ownership of the Ford was prima facie evidence of Smith's agency and required submission of the second issue. The issue was for jury determination notwithstanding the only positive evidence relating thereto was that offered by defendants tending to show Smith was on a purely personal mission at the time of the collision. In such case, the owner, without request therefor, is entitled to an instruction, related directly to the evidence in the particular case, that it is the jury's duty to answer the agency issue, "No," if they find the facts to be as the positive evidence offered by the owner tends to show. Whiteside v. McCarson, 250 N.C. 673, 110 S.E.2d 295; Chappell v. Dean, 258 N.C. 412, 417-418, 128 S.E.2d 830. Compare: Jyachosky v. Wensil, 240 N.C. 217, 226-227, 81 S.E.2d 644; Skinner v. Jernigan, 250 N.C. 657, 664-665, 110 S.E.2d 301.

Uncontradicted evidence offered by defendants tends to show: Smith, age 24, lived in Wilmington, N. C., part of the time and part of the time in the home of his mother and stepfather in Jacksonville, N. C. He had never driven Carroll's car on any prior occasion. Nothing had been said between Smith and Carroll with reference to requesting or granting permission for Smith to drive the car. Carroll was not present when Smith drove the car from the the Carroll home and had no knowledge Smith was using the car on this occasion. On the occasion of the collision, Smith was driving the car to the Shelby Variety Store "(t)o lay away some stuff for (his) little boy for Christmas."

*241 Defendants excepted to the court's instructions relating to the second (agency) issue. Included in these instructions is the following: "* * * if * * * Smith was operating the vehicle with consent and authorization of the owner, then the owner would be responsible in damages." Whether the Ford car was being operated by Smith with Carroll's knowledge, consent or authorization is not determinative as to Carroll's liability for Smith's negligence. Under the doctrine of respondeat superior, Carroll is liable for Smith's negligence only upon allegation and proof that Smith was the agent of Carroll and that this relationship existed at the time and in respect of the very transaction out of which the injury arose. Whiteside v. McCarson, supra, and cases cited.

The court did not instruct the jury it would be their duty to answer the second issue, "No," without regard to whether Smith was operating the Ford car with Carroll's consent, express or implied, if they found that, on the occasion of the collision, Smith was using the Ford car solely for a mission of his own, namely, going to the Shelby Variety Store "(t)o lay away some stuff for (his) little boy for Christmas." Without request therefor, Carroll was entitled to an instruction to this effect.

Defendants have failed to show error in respect of the negligence issues, the contributory negligence issue in Mrs. Passmore's case, and the issues as to damages. The verdicts, as to these issues, will stand as between each plaintiff and both defendants. The second (agency) issue in each case is set aside on account of the indicated error in the charge. This issue has no bearing upon Smith's liability. It relates solely to Carroll's liability for the negligence of Smith. As to all matters relating to the negligence issues, the contributory negligence issue in Mrs. Passmore's case and the issues as to damages, Carroll has had a trial free from prejudicial error. He is entitled to a partial new trial in each case, that is, a new trial on the agency issue. Whiteside v. McCarson, supra, and cases cited.

The result: As to defendant Smith, the trial and judgments are upheld. In each case, as to defendant Carroll, the jury's answer to the second (agency) issue and the judgment are set aside and a partial new trial is ordered. Upon such new trial, the sole issue for determination will be whether Smith, on the occasion of the collision, was the agent of Carroll and then and there acting within the scope of his agency. If the answer is, "No," plaintiffs cannot recover from defendant Carroll; but if answered, "Yes," plaintiffs will be entitled to judgments for the amounts it was adjudged they should recover in their respective judgments against Smith.

As to defendant Smith, no error.

As to defendant Carroll, partial new trial.

MOORE, J., not sitting.