Brown v. Nesbitt

Bobbitt, J. Nesbitt excepted to and assigns as error the court’s denial of his motion for judgment of nonsuit at the conclusion of all the evidence. This assignment presents, inter alia, whether the evidence admitted against Nesbitt was sufficient to support a finding that plaintiff’s damage was proximately caused by the negligence of Brown, allegedly the agent of Nesbitt. To establish Nesbitt’s liability under the doctrine respondeat superior, plaintiff was required to prove, by evidence competent against Nesbitt, that Brown was negligent and that his negligence proximately caused plaintiff’s damage. Branch v. Dempsey, 265 N.C. 733, 145 S.E. 2d 395; Edwards v. Hamill, 266 N.C. 304, 145 S.E. 2d 884. The Patrolman’s testimony that, when he tried the brakes after the truck had struck the building, “(t)he brake pedal was mashed all the way to the floor,” is the only portion of plaintiff’s evidence admitted against Nesbitt relating to the brakes on the truck. This admitted evidence, whether competent or incompetent, was for consideration in passing on Nesbitt’s motion for nonsuit. Kientz v. Carlton, 245 N.C. 236, 246, 96 S.E. 2d 14, 21, and cases cited. Nesbitt’s testimony, quoted in our preliminary statement, as to what Brown had told him relating to Brown’s arrest for driving with faulty brakes, is contradictory and unclear. However, contradictions and discrepancies in the evidence are to be resolved by the jury. 4 Strong, N. C. Index, Trial § 21. When the evidence is considered in the light most favorable to plaintiff, the inference may be drawn that the conversation, in which Brown told Nesbitt that he (Brown) had been charged with driving the truck with faulty brakes, occurred three days before June 18, 1966. Too, it may be inferred from the condition of the brakes after the truck struck plaintiff’s building, and from the fact the truck left the highway and struck plaintiff’s building, notwithstanding there is no evidence the driver (Brown) was under any disability, that the damage to plaintiff’s building was proximately caused by the faulty condition of the brakes on the truck. [537] Although a borderline case, the conclusion reached is that the evidence admitted against Nesbitt, when considered in the light most favorable to plaintiff, was sufficient to support a finding that plaintiff’s damage was proximately caused by the negligence of Brown in operating the truck when he knew or should have known that the brakes thereon were faulty. With reference to the second (agency) issue, the court, in earlier portions of the charge, stated that the burden was on plaintiff to satisfy the jury that Brown was the agent of Nesbitt at the time of the accident. However, the court’s final instruction relating to the second issue was as follows: “So, when you come to the second issue, if the plaintiff has satisfied you by the greater weight of the evidence that at the time of the accident Brown was operating the vehicle in question with the knowledge, consent, and approval of the owner Nesbitt, then it would be your duty to answer it, ‘Yes.’ Defendant excepted to and assigns as error this (quoted) portion of the charge. By virtue of G.S. 20-71.1, Nesbitt’s testimony that he was the registered owner of the truck, made a prima facie case of agency sufficient to support, but not compel, a verdict against Nesbitt under the doctrine respondeat superior for damages proximately caused by the negligence of the operator thereof. Lynn v. Clark, 252 N.C. 289, 292, 113 S.E. 2d 427, 430, and cases cited. To establish liability under the doctrine respondeat superior, plaintiff must allege and prove that the operator was the agent of the owner and that this relationship existed at the time and in respect of the very transaction out of which the injury arose. Jyachosky v. Wensil, 240 N.C. 217, 81 S.E. 2d 644; Whiteside v. McCarson, 250 N.C. 673, 110 S.E. 2d 295; Duckworth v. Metcalf, 268 N.C. 340, 150 S.E. 2d 485. As to the necessity of such pleading: Hartley v. Smith, 239 N.C. 170, 79 S.E. 2d 767; Parker v. Underwood, 239 N.C. 308, 79 S.E. 2d 765; Osborne v. Gilreath, 241 N.C. 685, 86 S.E. 2d 462. The court in substance charged the jury that Brown was operating the truck as agent of Nesbitt if he was operating it with the knowledge, consent and approval of Nesbitt. This instruction omitted entirely the essential element as to whether Brown was operating the truck as agent of Nesbitt and within the scope of such agency at the time and in respect of the very transaction under consideration. The error must be considered prejudicial because under Nesbitt’s testimony the truck had been delivered into the possession of Wooten, a prospective purchaser thereof; and, to the knowledge of Nesbitt, Brown had been driving the truck of Nesbitt under some arrangement between Brown and Wooten. The. determinative question in [538] volved in the second (agency) issue was whether at the time and on the occasion of plaintiff’s damage Brown was operating the truck as agent of Wooten or as agent of Nesbitt. We do not consider whether upon the evidence in the present record the court also erred by failing to give an instruction, related directly to the evidence, that it was the jury’s duty to answer the agency issue, “No,” if they found the facts to be as the evidence on behalf of Nesbitt tended to show. See Whiteside v. McCarson, supra, and Torres v. Smith, 269 N.C. 546, 153 S.E. 2d 129. For error in the court’s instruction relating to the second issue, and mindful of the dubious purport of certain of the evidence admitted against Nesbitt with reference to the first issue, this Court awards a new trial upon all issues arising on the pleadings as between plaintiff and Nesbitt. New trial.