Freeman v. . Dalton

Walker, J., after stating the case: The first question is whether the learned judge was correct in charging the jury that if they found by *541 tbe greater weight of the evidence that the defendant was the owner of the automobile which collided with the plaintiff’s motorcycle, this fact would raise a presumption that the automobile was being used in the plaintiff’s business, and in that event the burden would be on Dalton to show by the greater weight of the evidence that although he was the owner of the automobile, it was not being used in his business. This instruction placed the burden on the defendant, not only to prove, if he was the owner of it, that the automobile was not used in his business, but to establish it by preponderance or the greater weight of the 'evidence, whereas the burden of the issue was upon the plaintiff throughout the case not only to show that the defendant was the owner of the automobile but that it was, at the time, being used in his business. The defendant had not pleaded any separate or independent defense, but his answer contained solely a denial of the allegations of the complaint, and therefore did not shift the burden of the issue to the defendant, and require him to show affirmatively, and by the greater weight of the evidence, that while he was the owner, the automobile was not being used in his business. The evidence in the case did make out a prima facie case for the plaintiff, and entitled him to have the case submitted to the jury without further proof. This is what, we think, was held in Clark v. Sweaney, 176 N. C., 529, at pp. 530 and 531, where the evidence was stronger against the defendant than it is here. It was said by the Court there: “The pleadings admit that the automobile was owned by the defendant, Dr. John Sweaney, and that his wife was in the car at the time of the injury, and that their son Fred was driving the car. From this evidence the jury could well draw the inference that at the time of the injury to the plaintiff the son was acting as agent for his father, and Vas about his master’s business,’ ” citing Moon v. Matthews, 29 L. R. A. (N. S.), 856; Stowe v. Morris, 39 L. R. A. (N. S.), 24. This does not decide that any presumption was raised “that the son was acting as agent of his father and about his father’s business,” but that the jury would be warranted in drawing an inference therefrom that such was the case, without further proof being offered by the plaintiff, or appearing in the case. And in Linville v. Nissen, 162 N. C., 95, at p. 102, we held as follows: “The plaintiff must not only show that the person in charge was defendant’s servant, but the further fact that he was at the time engaged on the master’s business. Evidence of the mere ownership of the machine is insufficient. To the same effect is Sarver v. Mitchell, 35 Pa. Sup., 69, and numerous cases there cited.” This view of the case keeps it in line with White v. Hines, 182 N. C., 275; Page v. Mfg. Co., 180 N. C., 335; Shepard v. Tel. Co., 143 N. C., 244, and the many other authorities cited in White v. Hines, supra. There may be a presumption that the car was being used in the defend *542 ant’s business, but it is not a presumption of law, but one of fact, and it does not shift the burden of the issue to the defendant, in the sense that he must rebut the presumption, or disprove the allegation, that the car was being used in his business, by the greater weight of the evidence. It merely is, in itself, evidence of the fact, and carries the case to the jury. This is fully discussed and explained in White v. Hines, supra, and the cases cited therein, where it is said that if the prima facie case be called a presumption, the presumption is only evidence for the consideration of the jury and does not change or shift the burden of the issue. Justice Adams said in White v. Hines, supra, at p. 288: “Such prima facie case does not necessarily establish the plaintiff’s right to recover. Certainly, it does not change the burden of the issue. The defendant may offer evidence or decline to do so at the peril of an adverse verdict. If the defendant offer evidence the plaintiff may introduce additional evidence, and the jury will then say whether upon all the evidence the plaintiff has satisfied them by its preponderance that he was injured by the negligence of the defendant.” And summing up, he further said: “In all instances of this character, after the plaintiff has established a primd facie case of negligence, if no other evidence is introduced, the jury will be fully warranted in answering the issue as to negligence in favor of the plaintiff, but will not be required to do so as a matter of law. When such prima facie case is made, it is incumbent upon the defendant to offer proof in rebuttal of the plaintiff’s case, but not to the extent of preponderating evidence. The defendant, however, is not required as a matter of law to produce evidence in rebuttal; he may decline to offer evidence at the peril of an adverse verdict. If he offer evidence, the plaintiff may introduce other evidence in reply, and the jury will finally determine whether the plaintiff is entitled by the greater weight of all the evidence to an affirmative answer to the issue; for throughout the trial the burden is upon the plaintiff to show by the greater weight of the evidence that he is entitled to such answer.” White v. Hines, supra, has been approved in two cases decided at this term to the same effect, and which make clear the error in the charge to the jury as to the presumption that the automobile was being used in the business of the defendant. Harris v. Mangum, ante, 235, and Cotton Oil Co. v. R. R., ante, 95. Referring to the nature of the proof and the effect of it in making a prima facie case, Justice Adams said in Harris v. Mangum, supra: “In some of the decisions the word ‘presumption’ seems unfortunately to imply the right of the plaintiff to recover unless the defendant introduces evidence in rebuttal and to this extent assumes the burden of proof; whereas the ‘presumption’ is nothing more than evidence to be considered by the jury.” *543 There is evidence in this case upon which the jury could well and reasonably infer that the car belonged to the defendant, and was being operated for him in his business, but the jury should have been allowed to pass upon it and to find the fact without imposing too great a burden upon the defendant to disprove the fact, or to overcome a presumption as to the same fact by the greater weight of the evidence. The proposition laid down in Linville v. Nissen, 162 N. C., at pp. 102 and 103, finds support in what is said by Huddy on Automobiles, sec. 283; Lotz v. Hanlen, 60 Atl., 525 (10 Anno. Cases, 731). We do not see why the fact that the defendant’s license number or plate on the automobile was not some evidence, or a circumstance, tending to show, with the other proof, his ownership of the car. There was conflicting evidence about it, but this was for the jury, and, in that respect, the county court and the Superior Court ruled correctly. But there was error in the charge, as we have above indicated, which requires another trial of the issues. New trial.