{ "id": 8548240, "name": "HERBERT P. ALLEN v. JOHN SCHILLER, Collector of the Estate of MILDRED EULENE MANUS, and CHARLES DAVID FORMYDUVAL", "name_abbreviation": "Allen v. Schiller", "decision_date": "1969-10-22", "docket_number": "No. 695DC237", "first_page": "392", "last_page": "397", "citations": [ { "type": "official", "cite": "6 N.C. App. 392" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "102 S.E. 2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 718", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628407 ], "opinion_index": 0, "case_paths": [ "/nc/247/0718-01" ] }, { "cite": "148 S.E. 2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "267 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558905 ], "opinion_index": 0, "case_paths": [ "/nc/267/0221-01" ] }, { "cite": "133 S.E. 2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575817 ], "opinion_index": 0, "case_paths": [ "/nc/260/0647-01" ] }, { "cite": "24 S.E. 2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631706 ], "opinion_index": 0, "case_paths": [ "/nc/222/0616-01" ] }, { "cite": "161 S.E. 2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "274 N.C. 18", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559321 ], "opinion_index": 0, "case_paths": [ "/nc/274/0018-01" ] }, { "cite": "162 S.E. 2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "2 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550681 ], "opinion_index": 0, "case_paths": [ "/nc-app/2/0019-01" ] }, { "cite": "131 S.E. 2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "259 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561867 ], "opinion_index": 0, "case_paths": [ "/nc/259/0655-01" ] }, { "cite": "141 S.E. 2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572463 ], "opinion_index": 0, "case_paths": [ "/nc/264/0233-01" ] }, { "cite": "75 S.E. 2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614117 ], "opinion_index": 0, "case_paths": [ "/nc/237/0471-01" ] }, { "cite": "86 S.E. 2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 685", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616639 ], "opinion_index": 0, "case_paths": [ "/nc/241/0685-01" ] }, { "cite": "116 S.E. 2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623288 ], "opinion_index": 0, "case_paths": [ "/nc/253/0185-01" ] } ], "analysis": { "cardinality": 599, "char_count": 12318, "ocr_confidence": 0.597, "pagerank": { "raw": 4.856319230494445e-08, "percentile": 0.3058184087180372 }, "sha256": "c0bb6cb99393da3877cdb985f033f6ea8e2b8c6f135ece997bc9f4e34dd0dd77", "simhash": "1:333af69e8e00c5fe", "word_count": 2074 }, "last_updated": "2023-07-14T21:07:50.917320+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mallard, C.J., and Britt, J., concur." ], "parties": [ "HERBERT P. ALLEN v. JOHN SCHILLER, Collector of the Estate of MILDRED EULENE MANUS, and CHARLES DAVID FORMYDUVAL" ], "opinions": [ { "text": "PARKER, J.\nPlaintiff has joined as defendants the collector of the estate of the alleged driver and the owner of the Mustang, seeking to hold the owner liable for the negligence of a nonowner operator. G.S. 20-71.1 applies when, as in this case, the plaintiff,, by appropriate allegation in the complaint, seeks to hold the owner liable under the doctrine of respondeat superior. Howard v. Sasso, 253 N.C. 185, 116 S.E. 2d 341, citing Osborne v. Gilreath, 241 N.C. 685, 86 S.E. 2d 462. That statute provides:\n\u201c(a) In all actions to recover damages for injury to the person or to property or for the death of a person, arising out of an accident or collision involving a motor vehicle, proof of ownership of such motor vehicle at the time of such accident or collision shall be prima facie evidence that said motor vehicle was being operated and used with the authority, consent, and knowledge of the owner in the very transaction out of which said injury or cause of action arose.\n\u201c(b) Proof of the registration of a motor vehicle in the name of any person, firm, or corporation, shall for the purpose of any such action, be prima facie evidence of ownership and that such motor vehicle was then being operated by and under the control of a person for whose conduct the owner was legally responsible, for the owner\u2019s benefit, and within the course and scope of his employment.\u201d\nIn Travis v. Duckworth, 237 N.C. 471, 75 S.E. 2d 309, our Supreme Court first considered this statute and recognized the power of the General Assembly to declare that \u201cproof of certain related preliminary facts shall be regarded as prima facie evidence of the ultimate fact at issue, and hence as affording sufficient basis for the consideration of the jury.\u201d\nPlaintiff offered into evidence properly certified copies of a certificate of title and a registration card' which indicated both ownership and registration of the Mustang lay in defendant Formyduval. Such evidence of ownership and registration of the motor vehicle involved in the collision must, by force of the statute, be regarded as prima facie evidence that at the time and place of the injury caused by it the motor vehicle was being operated with the authority, consent and knowledge, and under the control of a person for whose conduct the defendant Formyduval was legally responsible. Travis v. Duckworth, supra. By reason of this statute, the agency issue is for determination by the jury. Moore v. Crocker, 264 N.C. 233, 141 S.E. 2d 307.\nDefendant owner contends there was insufficient evidence of actionable negligence. Although no presumption of negligence arises from the mere fact there has been an accident and injury, Jones v. Atkins Co., 259 N.C. 655, 131 S.E. 2d 371, if the evidence, construed in the light most favorable to the party with the burden of proof is sufficient to make out a prima facie case of actionable negligence, a motion for nonsuit should be denied and the issue submitted to the jury. Maynor v. Townsend, 2 N.C. App. 19, 162 S.E. 2d 677. \u201cDirect evidence of negligence is not required; it may be inferred from the attendant facts and circumstances.\u201d Greene v. Nichols, 274 N.C. 18, 161 S.E. 2d 521; Etheridge v. Etheridge, 222 N.C. 616, 24 S.E. 2d 477. As in Maynor v. Townsend, supra, the facts in the case at bar are similar to the facts in Greene v. Nichols, supra, in which our Supreme Court in a comprehensive opinion by Sharp, J., after reviewing prior decisions in this jurisdiction and other authority, \u201capplied the doctrine of res ipsa loquitur, which simply means that the nature of the occurrence itself furnishes circumstantial evidence of driver-negligence.\u201d\nIn Greene v. Nichols, supra, an automobile crossed the center line, left the two-lane highway on a curve, and collided head-on with a stationary object, a tree about five feet from the asphalt surface. The night was clear and the road was dry. There were no eyewitnesses, all the occupants of the automobile dying from head and body injuries sustained in the wreck. The plaintiff administrator introduced no evidence tending to show why the car deviated from its course and from a judgment as of nonsuit appealed to the Supreme Court. The Court held the circumstantial evidence sufficient to present a jury question with respect to the actionable negligence of the driver. Sharp, J., explaining the Court\u2019s reasoning:\n\u201cIt is generally accepted that an automobile which has been traveling on the highway, following \u2018the thread of the road/ does not suddenly leave it if the driver uses proper care. . . .\n\u201cThe inference of driver-negligence from such a departure is not based on mere speculation or conjecture; it is based upon collective experience, which has shown it to be the \u2018more reasonable probability.\u2019 \u201d\nIn the light of Greene v. Nichols, supra, and Maynor v. Townsend, supra, plaintiff was entitled to have a jury pass on his evidence.\nDefendant Schiller contends there is insufficient evidence that Eulene Manus was the driver to take the action against her estate to the jury. It is well settled that in passing on a motion for judgment of involuntary nonsuit, plaintiff is entitled to have his evidence taken in the light most favorable to him and to the benefit of every reasonable inference to be drawn therefrom. Rosser v. Smith, 260 N.C. 647, 133 S.E. 2d 499.\nDirect evidence as to who was driving the automobile at the time it was wrecked is not required. The identity of the driver may be established by circumstantial evidence or by a combination of direct and circumstantial evidence. Maynor v. Townsend, supra; Greene v. Nichols, supra; King v. Bonardi, 267 N.C. 221, 148 S.E. 2d 32. Circumstantial evidence alone is sufficient to establish this crucial fact. Stegall v. Sledge, 247 N.C. 718; 102 S.E. 2d 115. The ultimate inquiry is whether the circumstantial evidence is such as might \u201creasonably conduce to its conclusion as a fairly logical and legitimate deduction.\u201d Stansbury, N.C. Evidence 2d, \u00a7 210, p. 539.\nPlaintiff\u2019s testimony included the following:\n\u201cWhen I heard the collision, I heard a door slam and when I got up, I heard somebody coming up on the porch. I went right on to the car. . . .\n\u201cThe motor was running, lights burning, radio playing real loud, and I cut the radio off, cut the motor off and disremember whether I cut out the lights or not, and I looked back and she was standing outside by my door . . . and she walked in the house and there was a chair sitting there and she sat in the chair and I told my wife to call the law and call an ambulance.\u201d'\nThe windshield was cracked on the driver\u2019s side only. Eulene Manus had a deep cut on her head, \u201cgushing blood real bad.\u201d There was blood in the car, on the driver\u2019s side only, and on the steering wheel. The investigating officer testified there was a \u201ctrail of blood from the car to the front porch, from the porch to the living room.\u201d The officer asked E\u00fclene Manus who owned the car. She told him. Neither the officer nor the plaintiff asked her who was driving. It appears to us that the likelihood she was driving is no mere suspicion, conjecture, guess, possibility or chance; it is a legitimate deduction sufficient to merit determination by the jury.\nThe judgment as of nonsuit entered by the district court is\nReversed.\nMallard, C.J., and Britt, J., concur.", "type": "majority", "author": "PARKER, J." } ], "attorneys": [ "Addison Hewlett, Jr., and Jerry L. Spivey for plaintiff appellant.", "James, James & Crossley, by. John F. Crossley for defendant ap-pellees." ], "corrections": "", "head_matter": "HERBERT P. ALLEN v. JOHN SCHILLER, Collector of the Estate of MILDRED EULENE MANUS, and CHARLES DAVID FORMYDUVAL\nNo. 695DC237\n(Filed 22 October 1969)\n1. Automobiles \u00a7 105\u2014 liability of nondriver owner \u2014 evidence of agency of driver \u2014 G.S. 20-71.1\nG.S. 20-71.1 applies when the plaintiff, by appropriate allegations, seeks to bold an automobile owner liable under the doctrine of respondeat superior for the negligence of a nonowner operator.\n2. Automobiles \u00a7 105\u2014 liability of nondriver owner \u2014 agency of driver\u2014 G.S. 20-71.1\nUnder G.S. 20-71.1, proof of ownership and registration of a motor vehicle involved in a collision while being driven by a nonowner is prima facie evidence that at the time and place of the injury caused by it the motor vehicle was being operated with the authority, consent and knowledge, and under the control of a person for whose conduct the owner was legally responsible, and is sufficient to carry the case to the jury on the issue of agency.\n\u00bb. Negligence \u00a7 29\u2014 proof of negligence\nNegligence need not be established by direct evidence but may be inferred from the attendant facts and circumstances.\n<* Automobiles \u00a7\u00a7 44, 56\u2014 crossing center line and hitting parked vehicles \u2014 res ipsa loquitur \u2014 sufficiency of evidence\nIn this action for damages caused to plaintiff\u2019s parked automobiles when they were struck by another automobile, plaintiff\u2019s evidence is held sufficient to go to the jury on the issue of the driver\u2019s negligence under the doctrine of res ipsa loquitur where it tends to show that plaintiff\u2019s two automobiles were lawfully parked in front of his home, and that at' approximately 5 a.m. the other automobile went across the center line from its path of' travel and struck the front of one of plaintiff\u2019s automobiles, knocking it into plaintiff\u2019s other automobile..\n5. Automobiles \u00a7 66\u2014 proof of identity of driver\nThe identity of the driver of a vehicle at the time of an accident need not be established by direct evidence, but may be established by circumstantial evidence or by a combination of direct and circumstantial evidence.\n6. Automobiles \u00a7 66\u2014 identity of driver \u2014 sufficiency of evidence\nPlaintiff\u2019s evidence is held, sufficient to support the inference that defendant\u2019s intestate was the driver of an automobile which struck plaintiff\u2019s parked automobiles, where it tends to show that shortly after the collision defendant\u2019s intestate, bleeding from a deep cut on her forehead, was on plaintiff\u2019s front porch and then went into his living room, that the windshield of the automobile was cracked on the driver\u2019s side and on the steering wheel, and that there was a trail of blood from the automobile to plaintiff\u2019s front porch and from the front porch to the living room.\nAppeal by plaintiff from Tillery, J., at the January 1969 Civil Session, District Court, New HaNOveR Division of the General Court of Justice.\nThis is a civil action wherein the plaintiff seeks to recover property damages he sustained when his two\u2019 parked automobiles were damaged in a collision with a 1966 Ford Mustang which plaintiff alleges was owned by the defendant Formyduval and was driven by the intestate of the defendant Schiller.\nPlaintiff\u2019s evidence tended to show: On the evening of 15 December 1967, plaintiff\u2019s 1963 Pontiac and 1958 Chevrolet were lawfully parked facing north on the east side of the street in front of his house. The Pontiac was parked in front of the Chevrolet. At approximately 5 a.m. the next morning, plaintiff heard a collision in front of his house. He dressed quickly and went outside. The Mustang was across the center line from its path of travel, directly in front of the Pontiac, facing and touching it (\u201csitting almost in it\u201d), and had sustained heavy front-end damage. The Pontiac was damaged both front and rear; it was jammed back against the Chevrolet which also sustained front-end damage. The Mustang\u2019s motor was running, the lights burning, and the radio playing. After turning off the motor and radio, plaintiff saw Eulene Manus, the decedent, on his front porch. They went into the house.\nThere were no eyewitnesses to the collision; there was no evidence that other persons were involved. The windshield was cracked on the driver\u2019s side only, and Eulene Manus was bleeding from her forehead. There was blood in the car on the driver\u2019s side and on the steering wheel; also a trail of blood from the car to the front porch and from the porch to the living room. Eulene Manus told the investigating officer that defendant Formyduval owned the car; certi-fled copies of the certificate of title and registration card indicated that he was both the owner and the registrant. She died several days after the collision.\nAt the conclusion of plaintiff\u2019s evidence, defendants moved for judgment as of nonsuit. The motion was allowed as to both defendants and plaintiff appealed.\nAddison Hewlett, Jr., and Jerry L. Spivey for plaintiff appellant.\nJames, James & Crossley, by. John F. Crossley for defendant ap-pellees." }, "file_name": "0392-01", "first_page_order": 416, "last_page_order": 421 }