Dark v. . Johnson

Stacy, C. J. It may be conceded that plaintiff has failed to show, with exactness, for what purpose Or in what capacity her intestate was on the defendant’s truck at the time of his injury. This, however, need not defeat her action, even though the complaint contains specific allegations in respect of the matter. Williams v. McLean, 221 N. C., 228, 19 S. E. (2d), 867. The gravamen of the cause of action is the alleged breach of duty which the defendant owed plaintiff’s intestate in the circumstances disclosed by the record. Russell v. Cutshall, 223 N. C., 353, 26 S. E. (2d), 866; White v. McCabe, 208 N. C., 301, 180 S. E., 704; 5 Am. Jur., 729. Whether the deceased was on the truck with the defendant’s prior authorization, or subsequent ratification, as passenger, invitee, or licensee, would seem to be for the jury. 42 C. J., 1101. The conversation which the defendant had with the plaintiff on the morning following the wreck, taken in connection with the other circumstances in the case, affords some evidence for the consideration of the twelve. Henderson v. Powell, 221 N. C., 239, 19 S. E. (2d), 876; 4 Blashfield Cyc. Auto. L. & P., ch. 63, pp. 78, et seq. It is not alleged that plaintiff’s intestate was a fellow servant of the driver, Pleasants v. Barnes, 221 N. C., 173, 19 S. E. (2d), 627; Shorter v. Cotton Mills, 198 N. C., 27, 150 S. E., 499; Michaux v. Lassiter, 188 *654 N. C., 132, 123 S. E., 310, or that the parties were subject to the provisions of the "Workmen’s Compensation Act. G. S., ch. 97. See especially G. S., 97-14. Inferences may also be drawn from the evidence either for or against the status of the deceased as employee, guest, or trespasser, in relation to the owner of the truck. Russell v. Cutshall, supra. All the various permissible inferences of fact, arising on the record, should be submitted to the jury for determination in accordance with the usual practice in such eases. 35 Am. Jur., 1015, et seq. We refrain from a discussion of the evidence in advance of the verdict of the jury. The judgment of nonsuit will be set aside. Reversed.