{
  "id": 8556574,
  "name": "BETTE F. WALLACE v. PEARL R. JOHNSON, Administratrix of the Estate of MILTON LEE JOHNSON, and FREE WILL BAPTIST CHILDREN'S HOME",
  "name_abbreviation": "Wallace v. Johnson",
  "decision_date": "1971-07-14",
  "docket_number": "No. 717SC414",
  "first_page": "703",
  "last_page": "708",
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    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "208 N.C. 472",
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  "last_updated": "2023-07-14T15:10:46.806740+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Brock and Graham concur."
    ],
    "parties": [
      "BETTE F. WALLACE v. PEARL R. JOHNSON, Administratrix of the Estate of MILTON LEE JOHNSON, and FREE WILL BAPTIST CHILDREN\u2019S HOME"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nDefendants having admitted that defendant Johnson drove his automobile into the rear of plaintiff\u2019s automobile as plaintiff was proceeding along Highway 58 in a careful and prudent manner, defendants offered evidence which, if believed by the jury, was sufficient to permit, but not require, the jury to find that at the time defendant\u2019s intestate drove his automobile into the rear of plaintiff\u2019s automobile he was unable to control the vehicle because of being stricken with an unforeseen cerebral vascular thrombosis. There was other evidence which would have permitted, but did not require, the jury to infer that the alleged stroke affected only the speech of defendant\u2019s intestate or that prior to the occurrence of the accident he could reasonably have been aware of and foreseen such disability as he might have had.\nBy the great weight of authority the operator of a motor vehicle who becomes suddenly stricken by a fainting spell or other sudden and unforeseeable incapacitation, and is, by reason of such unforeseen disability, unable to control the vehicle, is not chargeable with negligence. Annot., 28 A.L.K. 2d 12, and cases cited. \u201cBut one who relies upon such a sudden unconsciousness to relieve him from liability must show that the accident was caused by reason of this sudden incapacity.\u201d 8 Am. Jur. 2d, Automobiles and Highway Traffic, \u00a7 693, p. 245. In her reply plaintiff alleged that if defendant\u2019s intestate suffered a stroke, he suffered it prior to the time he entered his vehicle and that he operated the vehicle with knowledge of his physical impairment. On appeal plaintiff argues that the court did not make it clear to the jury that plaintiff was relying on that alleged conduct of the defendant\u2019s intestate as a specific act of negligence and not merely to rebut defendants\u2019 defense which was based on sudden disability. Generally, objections to a statement of a party\u2019s contentions should be called to the attention of the court. Sherrill v. Hood, 208 N.C. 472, 181 S.E. 330. Moreover, in this case the judge specifically instructed the jury:\n\u201cWhether or not an individual has knowledge of physical defects or infirmities or an approaching incapacitation rendering it dangerous for him to operate a motor vehicle as a reasonably prudent person would operate under the same or similar circumstances, is of importance in determining his liability. One who knows or has reason to believe that his physical or mental faculties are becoming appreciably impaired and that he is physically unfit to operate a motor vehicle upon the highway and fails to stop and cease driving when he has an opportunity to do so, and as a reasonably prudent person would do under the same or similar circumstances, and then nevertheless undertakes to drive or continue to drive on the highway, he is liable for his negligent act or acts resulting therefrom and for resulting injury when thereby he loses control of his car and causes injury to another.\n\u201cIf the defendant Johnson drove under conditions and failed to stop and cease driving when he had an opportunity to do so at a time when he knew or by the exercise of due care should have known he was being physically or mentally affected or becoming incapacitated to operate his car as a reasonable and prudent person would do, and that in so doing, that is, continuing to drive under such circumstances, he failed to exercise due care to keep a reasonable lookout or failed to keep his vehicle under proper control or failed to exercise due care to avoid a collision with another vehicle, in this instance the vehicle of Mrs. Wallace, then such conduct on the part of the defendant Johnson would constitute negligence on the part of the defendants, and if a proximate cause of plaintiff\u2019s injuries1 the defendants would be liable therefor . \u201d\nPlaintiff assigns as error that the court refused to submit the following issues which she tendered:\n\u201c1. Was the plaintiff injured by the negligence of the defendants as alleged in the complaint?\n2. If not, was the plaintiff injured by the negligence of the defendants, as alleged in the Amended Reply?\u201d\nPlaintiff contends that by submitting only one issue as to negligence, \u201cthe court absolved the defendants of their burden of proof on the affirmative defense raised in their answer and put the burden upon plaintiff to disprove defendants\u2019 affirmative defense.\u201d This argument is without merit. The jury was instructed as follows:\n\u201cThe burden in this respect is on the defendants to show sudden illness or attack upon Mr. Johnson and that the illness or attack was unanticipated and unforeseen by Mr. Johnson and rendered him unable to control the operation of his car at the time in question. The defendants have the burden of satisfying you of this from the evidence and by its greater weight. In this respect, as to this rule of law and contention of the defendants, the Court instructs you that if the defendants have satisfied you from the evidence and by its greater weight that as the defendant Johnson was driving along N. C. Highway 58 eastwardly in the vicinity of the Nash Garment Company in Nashville at the time in question that he suffered from a brain stroke or loss of control of his mental and physical faculties from a sudden and unforeseeable seizure or sudden incapacitation which deprived him of the ability to act as a reasonable and prudent person would act in the operation of his automobile, and that he had no time to stop or cease the operation of his vehicle beforehand because of said condition, and that his mental or physical condition was such that he was not capable of sense perception and judgment, and that he was not consciously aware of his actions and had no reason to anticipate such attack upon him because of such sudden seizure or incapacitation, that he was rendered unable to control the operation of his car, and that because of such brain stroke and incapacitation he then collided with the plaintiff\u2019s vehicle, then and in that event the defendant Johnson would not be guilty of actionable negligence and the defendants would be entitled to have you answer the first issue \u2018No\u2019 in the defendants\u2019 favor, the burden being upon the defendants in this respect as to the matter about which I have just instructed you.\u201d\nThat the burden of proof on this defense was on the defendants was elsewhere repeated and clearly stated by the judge.\nThe issues as framed and tendered by the plaintiff were quite properly rejected. It is neither necessary nor appropriate to submit a separate issue as to every act of negligence alleged by the plaintiff. \u201cOrdinarily, the form and number of issues to be submitted is a matter which rests in the sound discretion of the trial judge, it being sufficient that the issues be framed so as to present the material matters in dispute to enable each party to have the full benefit of his contentions before the jury and to enable the court, when the issues are answered, to determine the rights of the parties under the law.\u201d Johnson v. Lamb, 273 N.C. 701, 161 S.E. 2d 131. The issues submitted, under the clear and comprehensive instructions given by the court, were sufficient to enable the jury to resolve the material controversies in this case.\nPlaintiff\u2019s other assignments of error have been carefully considered and are overruled. The case was well tried and ably argued on appeal. The crucial issues were resolved in a trial which we believe to have been free of prejudicial error.\nNo error.\nJudges Brock and Graham concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Dill and Fountain by Richard T. Fountain for plaintiff appellant.",
      "Battle, Winslow, Scott and Wiley by Robert Spencer for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "BETTE F. WALLACE v. PEARL R. JOHNSON, Administratrix of the Estate of MILTON LEE JOHNSON, and FREE WILL BAPTIST CHILDREN\u2019S HOME\nNo. 717SC414\n(Filed 14 July 1971)\n1. Automobiles \u00a7 21; Negligence \u00a7 4 \u2014 sudden incapacitation of motorist\nA motorist who becomes suddenly stricken by a fainting spell or other sudden and unforeseeable incapacitation, and is, by reason of such unforeseen disability, unable to control the vehicle, is not chargeable with negligence.\n2. Automobiles \u00a7 21 \u2014 sudden unconsciousness \u2014 burden of proof\nA motorist who relies upon a sudden unconsciousness to relieve him from liability must show that the accident was caused by reason of such sudden incapacity.\n3. Automobiles \u00a7\u00a7 21, 90\u2014 instructions \u2014 sudden disability \u2014 negligence in driving with knowledge of physical impairment\nIn this action to recover damages for injuries sustained by plaintiff when defendant\u2019s intestate drove his automobile into the rear of plaintiff\u2019s vehicle, the trial court\u2019s instructions sufficiently apprised the jury that plaintiff was relying on alleged conduct of defendant\u2019s intestate in operating his vehicle after he suffered a stroke and with knowledge of his physical impairment as a specific act of negligence and not merely to rebut defendant\u2019s affirmative defense of sudden disability.\n4. Automobiles \u00a7 91 \u2014 issues submitted \u2014 defense of sudden disability\nThe trial court did not place on plaintiff the burden of disproving defendant\u2019s affirmative defense of sudden disability by submitting only one general issue as to negligence and refusing to submit a separate issue as to the negligence of defendant\u2019s intestate in operating his automobile with knowledge of his disability.\n5. Automobiles \u00a7 91; Negligence \u00a7 37 \u2014 issues \u2014 various acts of negligence\nIt is neither necessary nor appropriate to submit separate issues as to every act of negligence alleged by plaintiff.\nAppeal by plaintiff from Cohoon, J., 7 December 1970 Civil Session of Superior Court held in NASH County.\nPlaintiff instituted this action seeking damages for injuries sustained in an automobile accident. Plaintiff alleged and defendants admitted that plaintiff was operating an automobile in a careful and prudent manner along N. C. Highway No. 58; that defendant\u2019s intestate was also operating a vehicle owned by the corporate defendant along the same highway behind the plaintiff and drove said vehicle into the rear of plaintiff\u2019s vehicle. Defendants denied negligence and alleged that at the time of the accident defendant\u2019s intestate suddenly and unexpectedly suffered a cerebral vascular thrombosis, a stroke or brain clot, and that his mental and physical condition was such that he was not capable of sense perception; that prior to the accident he was in excellent health. Plaintiff filed a reply in which she denied the affirmative matters set up in defendants\u2019 answer and alleged that if defendant\u2019s intestate suffered a stroke the same occurred prior to the time that he began operating the vehicle and that defendant was negligent in operating the vehicle after he had become aware of his physical impairment. The first issue (Was the plaintiff injured by the negligence of the defendants as alleged by the plaintiff?) was answered \u201cNo.\u201d The only other issue submitted, that of damages, was not reached. Plaintiff appealed.\nDill and Fountain by Richard T. Fountain for plaintiff appellant.\nBattle, Winslow, Scott and Wiley by Robert Spencer for defendant appellees."
  },
  "file_name": "0703-01",
  "first_page_order": 727,
  "last_page_order": 732
}