{
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  "name": "CHARLES S. SCALLON, Administrator of the Estate of LARRY ALAN AIKEN v. PHILLIP McINTYRE HOOPER, JANET P. CALDWELL, and CHARLES KENNETH CALDWELL",
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    "judges": [
      "Judges Martin (Robert M.) and Webb concur."
    ],
    "parties": [
      "CHARLES S. SCALLON, Administrator of the Estate of LARRY ALAN AIKEN v. PHILLIP McINTYRE HOOPER, JANET P. CALDWELL, and CHARLES KENNETH CALDWELL"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nWe shall consider plaintiffs assignments of error concerning the trial court\u2019s instructions first. The two basic issues are whether plaintiff was entitled to an instruction on G.S. 20-71.1 and whether a peremptory instruction was properly given in favor of defendant Charles Caldwell. We conclude that the trial court committed error in both regards and order a new trial on the agency issue.\nIt cannot be questioned that G.S. 20-71.1 was applicable to this case. As explained by the Court in Duckworth v. Metcalf, the statute essentially provides that:\n[p]roof of ownership of the automobile by one not the driver makes out a prima facie case of agency of the driver for the owner at the time of the driver\u2019s negligent act of omission, but it does not compel a verdict against the owner upon the principle of respondeat superior.\n268 N.C. 340, 343, 150 S.E. 2d 485, 488 (1966). It was stipulated that defendant Charles Caldwell was the registered owner of the vehicle at the time of the accident. Clearly, the judge had a duty to explain the rule of G.S. 20-71.1, even absent a special request by plaintiff, because it was the law arising from the evidence. G.S. 1A-1, Rule 51; Shuford, N.C. Civil Practice and Procedure \u00a7 51-3(1975). Moreover, this instruction was required even though plaintiff presented no positive evidence that Hooper was Caldwell\u2019s agent. Whiteside v. McCarson, 250 N.C. 673, 110 S.E. 2d 295 (1959); Hartley v. Smith, 239 N.C. 170, 79 S.E. 2d 767 (1954). We note that a model instruction is available as a guide for explaining G.S. 20-71.1 to the jury. N.C.P.I. \u2014 Civ. 103.40 (1973).\nNevertheless, the judge gave the following peremptory instruction for defendant:\nNow, we have an issue here which is the first issue which says this: Was the Defendant Phillip McIntyre Hooper, at the time of the collision, acting as the agent of the Defendant Charles Kenneth Caldwell?\nAs to this issue, members of the jury, which is number one, if the jury finds that on the occasion of the collision on June 30, 1976, that the Defendant Hooper was driving the Defendant Charles Kenneth Caldwell\u2019s car at Long Beach and that the Defendant Hooper was not on a mission or errand of any kind for the Defendant Charles Kenneth Caldwell, as all of the evidence tends to show, it would be your duty to answer issue number one \u201cno.\u201d\nA peremptory instruction may be given in a proper case. Generally, \u201c[t]his device may be used when there is a sufficient quantum of evidence, all tending to establish one side of an issue, and which, if credible, gives rise as a matter of law to but one permissible inference.\u201d 2 McIntosh, N.C. Practice 2d, \u00a7 1516, at 42-43 (Supp. 1970). Specifically, it has been held repeatedly that defendant is entitled to a peremptory instruction when plaintiff relies solely on G.S. 20-71.1, and defendant offers un-contradicted evidence on the issue of agency tending to show that the driver was on a purely personal mission or errand at the time of the collision. Torres v. Smith, 269 N.C. 546, 153 S.E. 2d 129 (1967); Passmore v. Smith, 266 N.C. 717, 147 S.E. 2d 238 (1966); Nolan v. Boulware, 21 N.C. App. 347, 204 S.E. 2d 701, cert. den., 285 N.C. 590, 206 S.E. 2d 863 (1974). The case before us does not meet this test.\nPlaintiff relied solely on G.S. 20-71.1 and did not offer independent proof of agency. Defense counsel did not present any evidence to rebut plaintiffs prima facie case of agency under the statute. There is no authority that a peremptory instruction may be given in favor of a defendant who offers no evidence whatsoever on the critical issue. Therefore, it was error to instruct the jury that all of the evidence tended to show that defendant Hooper was not on a mission for Charles Caldwell. The only evidence that even had this tendency was a pretrial stipulation which provided that \u201cthe Defendant Janet P. Caldwell had the vehicle in her custody and control and the right to exercise all incidents of ownership of the automobile as to its operation.\u201d\nDefendant contends that this stipulation had the effect of negating plaintiffs prima facie case under the statute and thus required plaintiff to come forward with independent proof of agency. We do not agree. It is significant that the stipulation did not say that Janet Caldwell had exclusive custody and control of the car. Moreover, it did not provide that she had all incidents of ownership with respect to the car. It merely stated that she had the right to exercise all incidents of ownership. The stipulation did not, therefore, exclude the possibility that Hooper was acting as Charles Caldwell\u2019s agent at the time of the collision. We must conclude that this stipulation was not positive, uncon-tradicted evidence of the lack of agency sufficient to require a peremptory instruction. Giving a peremptory instruction in this case defeated the plain and obvious purpose of G.S. 20-71.1, which is to enable plaintiff to submit a prima facie case of agency to the jury which it can decide to accept or reject. Chappell v. Dean, 258 N.C. 412, 128 S.E. 2d 830 (1963); Travis v. Duckworth, 237 N.C. 471, 75 S.E. 2d 309 (1953). A peremptory instruction is warranted only when compelling evidence permitting one reasonable conclusion is presented; otherwise, this procedural device could be used to reduce G.S. 20-71.1 to a meaningless exercise.\nThough it is not necessary to our disposition here, we agree with two other contentions made by plaintiff. First, the judge expressed an improper opinion in his opening instructions on what the evidence tended to show on the agency issue when he said that \u201cat the proper time in my charge I will instruct you that on the basis of the evidence that you will answer that issue \u2018no.\u2019 \u201d Such a comment on the evidence is prohibited by G.S. 1A-1, Rule 51(a). The remark was so absolute that a juror may have believed that the judge had already given the correct conclusion. See Shuford, N.C. Civil Practice and Procedure \u00a7 51-4 (1975). Second, the form of the peremptory instruction was also incorrect. When G.S. 20-71.1 applies to a case, the instruction must relate directly to particular facts shown by defendant\u2019s positive evidence. Belmany v. Overton, 270 N.C. 400, 154 S.E. 2d 538 (1967); Whiteside v. McCarson, 250 N.C. 673, 110 S.E. 2d 295 (1959).\nPlaintiff\u2019s final assignment of error is that the court erred in denying his motion for a new trial on the ground of inadequate damages for decedent\u2019s pain and suffering. We decline to grant a new trial on this issue. The judge\u2019s decision on the matter was within his discretion, and we can find no abuse of discretion here. Robinson v. Taylor, 257 N.C. 668, 127 S.E. 2d 243 (1962); Gwaltney v. Keaton, 29 N.C. App. 91, 223 S.E. 2d 506 (1976). Thus, in addition to the trial court\u2019s order of a new trial on damages for decedent\u2019s present monetary value, we order a new trial on the agency issue.\nNew trial.\nJudges Martin (Robert M.) and Webb concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Bailey, Dixon, Wooten, McDonald and Fountain, by Wright T. Dixon, Jr., and Gary S. Parsons, for plaintiff appellant.",
      "Ragsdale and Liggett, by George R. Ragsdale and Peter M. Foley, for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "CHARLES S. SCALLON, Administrator of the Estate of LARRY ALAN AIKEN v. PHILLIP McINTYRE HOOPER, JANET P. CALDWELL, and CHARLES KENNETH CALDWELL\nNo. 8010SC270\n(Filed 7 October 1980)\n1. Automobiles \u00a7 106- driver who is not owner - prima facie evidence of agency - instruction required\nPlaintiff in a wrongful death action was entitled to an instruction on G.S. 20-71.1, which essentially provides that proof of ownership of the automobile by one not the driver makes out a prima facie case of agency of the driver for the owner at the time of the driver\u2019s negligent act, since it was stipulated that one defendant who was not the driver was the registered owner of the vehicle at the time of the accident, and an instruction on the statute was required even though plaintiff presented no positive evidence that defendant driver was defendant owner\u2019s agent.\n2. Automobiles \u00a7 106- driver as agent of owner - peremptory instruction in favor of owner erroneous\nThe trial court in a wrongful death action erred in giving a peremptory instruction in favor of defendant automobile owner who was not the driver at the time of the allegedly negligent acts complained of, though plaintiff relied solely on G.S. 20-71.1 and did not offer independent proof of agency, since defense counsel did not present any evidence to rebut plaintiff\u2019s prima facie case of agency under the statute, and a stipulation that the female defendant \u201chad the vehicle in her custody and control and the right to exercise all incidents of ownership of the automobile as to its operation\u201d did not exclude the possibility that defendant driver was acting as defendant owner\u2019s agent at the time of the collision.\nAppeal by plaintiff from Hobgood (Hamilton H.), Judge. Judgment entered 15 October 1979 in Superior Court, Wake County. Heard in the Court of Appeals 16 September 1980.\nPlaintiff brought an action for the wrongful death of intestate caused by the negligent operation of a motor vehicle. A directed verdict was entered in favor of Janet P. Caldwell. On 4 October 1979, the jury returned a verdict for plaintiff against defendant Hooper only. The court ordered a partial new trial on 15 October 1979.\nThe parties made the following stipulations of undisputed facts in the final pretrial order. Plaintiff\u2019s intestate, Larry Aikens, died on 1 July 1976 as a result of injuries he received in an automobile accident. He was twenty-two years old. The collision occurred on 30 June 1976 on Beach Drive in Long Beach. The vehicle operated by plaintiffs intestate was a 1974 Datsun pickup truck owned by his employer. The vehicle operated by defendant Hooper was a 1975 Pontiac convertible. Hooper was a provisional driver under G.S. 20-13 and seventeen years old at the time. Defendant Charles Caldwell was the registered owner, but defendant Janet Caldwell had the vehicle in her custody and control and the right to exercise all incidents of ownership as to its operation. Neither of the Caldwells was in the car at the time of the accident. After the pretrial stipulations were read in open court, defense counsel further stipulated, in the jury\u2019s presence, that defendant Hooper\u2019s negligence was the proximate cause of Larry Aiken\u2019s death.\nPlaintiff\u2019s sole evidence was the testimony of William B. Hewitt, a former officer with the Long Beach 'Police Department. Hewitt testified as to Aiken\u2019s condition upon his arrival at the scene. Defendants presented no evidence. At the end of plaintiff\u2019s evidence, a directed verdict was granted in favor of defendant Janet Caldwell without objection. Defendants also moved for directed verdict in favor of Charles Caldwell on the grounds that \u201cthere was no evidence whatsoever that he was negligent\u201d or \u201cthat the motor vehicle was being operated for any family purpose or maintained by him.\u201d The court overruled the motion.\nThe court gave a peremptory instruction in favor of defendant Charles Caldwell and did not instruct the jury on the application of G.S. 20-71.1 to the facts of the case. The jury returned a verdict against defendant Hooper and found that he was not acting as the agent of defendant Charles Caldwell at the time of the collision. Plaintiff received an award of $1000.00 for decedent\u2019s pain and suffering and $10,000.00 for the present monetary value of decedent. Pursuant to plaintiffs motion under G.S. 1A-1, Rule 59, the court ordered a new trial but only on the issue of damages for the present monetary value of decedent.\nBailey, Dixon, Wooten, McDonald and Fountain, by Wright T. Dixon, Jr., and Gary S. Parsons, for plaintiff appellant.\nRagsdale and Liggett, by George R. Ragsdale and Peter M. Foley, for defendant appellees."
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  "file_name": "0113-01",
  "first_page_order": 141,
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