Rick v. Murphy

110 S.E.2d 815 (1959)

251 N.C. 162

George M. RICK v. Jim MURPHY, t/a Murphy's Used Cars, and Wesley Pete Froneberger.

No. 165.

Supreme Court of North Carolina.

November 4, 1959.

Frank Battley Rankin, Mount Holly, for plaintiff appellee.

Carpenter & Webb, Charlotte, for defendant appellants.

RODMAN, Justice.

Defendant Murphy's motion to nonsuit was overruled. This he assigns as error. Plaintiff's evidence does not tend to establish that Murphy was the owner of the vehicle operated by Froneberger. To the contrary, it shows that the driver was the owner. It was registered in his name and carried license plates issued to him. This made a prima facie case of ownership. G.S. & 20-71.1(b). True the body was not the same as the body described on the registration card, but the body is merely a part of the motor vehicle referred to in the statute, G.S. § 20-71.1.

By definition, G.S. § 20-38(p), a motor vehicle is self-propelled or propelled by electric current obtained from trolley *817 wires. The article sold by Ball to Murphy and by Murphy to Froneberger had no means of propulsion.

The evidence clearly establishes an absence of intent on the part of either Froneberger to purchase or Murphy to sell a motor vehicle. What the evidence shows is the sale of parts owned by Murphy to be used with other parts owned by Froneberger to make for Froneberger a motor vehicle which could be operated on the highway. Froneberger was, on this evidence, the owner of the repaired or reconstructed automobile. Murphy merely had a lien for labor and material. G.S. § 44-2.

G.S. § 20-71.1 does not make the merchant who supplies parts or the mechanic who performs work and supplies parts responsible for the operation of a repaired or rebuilt motor vehicle. Defendant Murphy's motion for nonsuit should have been allowed.

The evidence was sufficient to establish negligence by Froneberger causing the collision. He does not here argue to the contrary.

Lewis Ball, a witness for plaintiff, tesified that he saw Froneberger about five minutes prior to the collision and observed his condition. Counsel for plaintiff then asked: "What, if anything, was his condition with reference to drunk or sober?" Defendant's objection was overruled, and the witness answered: "He was drinking." The court, in reviewing the evidence, called attention to this testimony.

Froneberger assigns as error the admission of this evidence and reference thereto in the charge. The complaint does not charge a violation of G.S. § 20-138, which prohibits the operation of a motor vehicle while under the influence of intoxicating beverages. It charges a reckless operation prohibited by G.S. § 20-140. Plaintiff was not required to allege evidential facts. An allegation of the ultimate facts sufficed. Pinnix v. Toomey, 242 N.C. 358, 87 S.E.2d 893; Spake v. Pearlman, 222 N.C. 62, 21 S.E.2d 881. A physical condition which may cause a person to act in a given manner is merely evidentiary, not the ultimate fact on which liability must rest.

The right to offer evidence of the consumption of alcoholic beverages by the driver in vehicle collision cases on an allegation of negligence without specific allegation of intoxication was considered in Fox v. Hopkins, 343 Ill.App. 404, 99 N.E.2d 363, 26 A.L.R.2d 352. Cases considering the question are gathered in the note appearing in A.L.R. The annotator summarizes the conclusion which the courts have reached thus: "In nearly all of the vehicle accident cases in which the question has arisen, whether the pleading alleged the negligence of the defendant or his agent, or contributory negligence on the part of the plaintiff or his decedent, it has been held or recognized that evidence tending to prove the opposing party's intoxication was admissible, notwithstanding the pleading failed to allege such intoxication." The evidence to which the assignment is directed was competent.

Plaintiff was carried to a hospital where he remained for nine days. Six of his ribs were broken, two crushed; his leg and hand were cut. He sustained head injuries; he was out of work for seven weeks. The collision occurred in June 1957. The case was tried in March 1959. Plaintiff testified: "I have not fully recovered as a result of these injuries. I still have hurting in my head, and my ribs still in cold weather I still have trouble with my ribs." Plaintiff alleged permanent injuries. He did not specifically allege injury to his nervous system. In stating plaintiff's contentions, the court said: "He says and contends that the pain and suffering which he sustained seriously affected his nervous system and will continue to do so." Defendant assigns this statement of contention as error, contending there was no allegation or evidence of injury to the *818 nervous system. When the charge is read as a whole, it is apparent that the court merely meant to call attention to plaintiff's contention that the injuries were permanent and would continue to cause pain. Prejudicial error has not been established by Froneberger.

On defendant Murphy's appeal: Reversed.

On defendant Froneberger's appeal: No error.

HIGGINS, J., not sitting.