{ "id": 8624963, "name": "CLARENCE E. PARKER, Administrator of the Estate of BONNIE BEULAH IRENE PATRICK, Deceased, v. R. K. WILSON, Executor of the Estate of ROBERT DONALD WILSON, Deceased", "name_abbreviation": "Parker v. Wilson", "decision_date": "1957-10-30", "docket_number": "", "first_page": "47", "last_page": "55", "citations": [ { "type": "official", "cite": "247 N.C. 47" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "90 S.E. 2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623818 ], "opinion_index": 0, "case_paths": [ "/nc/243/0268-01" ] }, { "cite": "97 S.E. 2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624582 ], "opinion_index": 0, "case_paths": [ "/nc/246/0108-01" ] }, { "cite": "70 S.E. 2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626235 ], "opinion_index": 0, "case_paths": [ "/nc/235/0607-01" ] }, { "cite": "83 S.E. 2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610583 ], "opinion_index": 0, "case_paths": [ "/nc/240/0733-01" ] }, { "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": "41 S.E. 2d 586", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622684 ], "opinion_index": 0, "case_paths": [ "/nc/227/0193-01" ] }, { "cite": "32 A.L.R. 2d 988", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "290 S.W. 2d 449", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10172749 ], "opinion_index": 0, "case_paths": [ "/sw2d/290/0449-01" ] }, { "cite": "76 N.W. 2d 52", "category": "reporters:state_regional", "reporter": "N.W.2d", "opinion_index": 0 }, { "cite": "345 Mich. 408", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1849399 ], "opinion_index": 0, "case_paths": [ "/mich/345/0408-01" ] }, { "cite": "32 A.L.R. 2d 976", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "89 A. 2d 313", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "371 Pa. 1", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1237038 ], "opinion_index": 0, "case_paths": [ "/pa/371/0001-01" ] } ], "analysis": { "cardinality": 792, "char_count": 20239, "ocr_confidence": 0.584, "pagerank": { "raw": 7.556723520697681e-07, "percentile": 0.9704467326087352 }, "sha256": "8d28b550dea0abd75d45b8347d2fc8ba0b4c9d4bbcf7075af486a1b4789c665b", "simhash": "1:85aeeb9eb40fb69f", "word_count": 3609 }, "last_updated": "2023-07-14T22:38:17.459804+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CLARENCE E. PARKER, Administrator of the Estate of BONNIE BEULAH IRENE PATRICK, Deceased, v. R. K. WILSON, Executor of the Estate of ROBERT DONALD WILSON, Deceased." ], "opinions": [ { "text": "Parker, J.\nFor the sake of brevity plaintiff\u2019s intestate will be called Bonnie Patrick, and Robert Donald Wilson will be called Donald Wilson.\nDonald Wilson owned a 1952 Oldsmobile automobile. He and Bonnie Patrick had been dating regularly. Between 9:00 and 10:00 p.m. on 23 December 1954 W. C. Campbell saw them leave his home in Donald Wilson\u2019s automobile. He did not testify who drove the automobile away.\nJust after midnight on the morning of 24 December 1954, about 12:15 a.m., H. W. Holton was at Sheet\u2019s Barbecue Place adjacent to U. S. Highway 158. Just beyond this barbecue place there is a curve in the road. He saw an automobile approaching the curve travelling on the highway at a speed of approximately 65 or 70 miles an hour. Just as the automobile rounded the curve it cut across the road into the woods. He heard a crash, and went to the automobile. He found the automobile against a tree, and two people inside it, a man and a woman. The woman was Bonnie Patrick and the man was Donald Wilson. They were in the front seat, and the back seat was thrown up against the windshield on top of them. The biggest portion of the upper part of the woman\u2019s face on the right side was torn off, and her head was lying on the switch key and on the steering column, right between them. The switch key on the automobile was just a few inches to the right of the steering column, low on the dash. The man was on the right side with his head partially out of the windshield. He took the back seat off of them, and the man slid down until his head was lying on the dash, and he stayed there until he was moved to an ambulance. After he was moved, Holton saw a dent just above the glove compartment. On cross-examination Holton testified as follows: He was the first one at the scene. \u201cWhen I saw them, the girl\u2019s left arm was up over the steering wheel, hanging onto it, and she was down sort of with her head against the rod of the steering wheel, and her left hand was over the steering wheel.\u201d He noticed a pool of blood directly under the switch key where her head was resting. He opened the left door of the automobile, which is the door next to the steering wheel. There was a woman\u2019s shoulder bag hanging on the window latch of the left door, when he opened it. The woman\u2019s right foot was under the gas pedal from the right side. On redirect examination Holton testified that he found a liquor bottle in the automobile with the seal unbroken, and that when he arrived, the woman\u2019s left foot was to the left of the steering column.\nAbout 12:30 a.m. R. L. Ellis was driving on U. S. Highway 158. When he arrived at Sheet\u2019s Barbecue Place, he stopped and went to the wreck. At the wreck, he saw a woman and a man in an Oldsmobile automobile. The woman was about the center of the car, and someone was holding her head up. The man was on the extreme right of the car with his head lying on the dash. As best he could tell, the man was not breathing, the woman was breathing hard, and he thought she was unconscious. \u201cThe right of the windshield was busted out, I believe.\u201d The steering wheel of the car was on the left side. The woman was bleeding pretty bad. When the ambulance came to get the people, he pulled the seat back from the right-hand side of the car to get the man and woman out of the car. R. L. Ellis was recalled for cross-examination and testified as follows: \u201cIn my direct testimony I testified that I was present when the girl and boy were taken out of the car. At that time I testified that they were taken out on the right side of the car.\u201d\nTony Barney testified that he arrived at the scene of the wreck between 12:15 and 12:30 a.m. When he arrived, between three and six people were there. A man and a woman were in the car. The man was lying all the way against the right corner of the windshield with his head on the dash. The woman was over near the steering wheel, with her head lying on top of the steering wheel. He testified: \u201cLaying up on top of the steering wheel. The bottom was bent down, and she was laying in the top of it. I don\u2019t know where her feet were exactly but they were somewhere in the floorboard. She was sitting on the seat near the steering wheel. She wasn\u2019t under the steering wheel.\u201d The right-hand side of the windshield was broken out in the bottom.\nPlaintiff saw this car about 5:00 a.m. after it had been moved. He saw some brown hair and blood on the dash. Bonnie Patrick had brown hair, and Donald Wilson black. Bonnie Patrick never regained consciousness.\nBonnie Patrick\u2019s mother saw the wrecked Oldsmobile automobile. She testified that she saw a terrible dent place in the dashboard, and some of Bonnie Patrick\u2019s hair on the right-hand side of the dashboard.\nBonnie Patrick had severe facial lacerations extending from the right cheek across the base of the nose to the left forehead, and also extending down on the right side of the nose to the tip of the nose, with multiple fractures of the underlying bones, and a rupture of the right eye, with an open wound extending into the front part of the brain. Dr. L. C. Smith testified that she did, to his knowledge, have no chest injuries. She died on 26 December 1954. There is no evidence that she ever spoke after the wreck.\nDuring the early morning of 24 December 1954 the coroner of the county, Dr. V. M. Long, examined the dead body of Donald Wilson. His examination showed that Donald Wilson had a broken neck, a crushed chest, a broken right femur and a. dislocation of the left hip joint, and in his opinion these injuries caused Donald Wilson\u2019s death.\nState Highway Patrolman C. N. Jones examined the Oldsmobile automobile about 1:00 a.m. on 24 December 1954. The front end was completely demolished. The tree made a half-moon of the front bumper, and went back in the motor and in between the right front wheel. The motor was pushed back some. The back seat was pulled loose, and brought forward, and the front seat was brought forward almost as far as it could possibly go. The dash on the right side was considerably bent in. The right half of the windshield was gone, and the lower half of the steering wheel was bent downward. In this car the glove compartment was on the extreme right-hand side of the dash. The dent in the dash was from the center to the right side. There was a portion of fine glass and blood and some hair in the dent, but the Patrolman did not know whose hair it was. When the Patrolman reached the wreck no one was in the car.\nPlaintiff alleges in his complaint that Donald Wilson was driving his automobile at the time it crashed into the tree, causing the death of Bonnie Patrick and himself. The defendant denies this in his answer, and alleges, upon information and belief, that at such time Bonnie Patrick was driving the automobile.\nPlaintiff\u2019s counsel states in his brief that he is relying on the rule \u201cthat an owner present in his automobile at the time of a collision is presumed to be in control of his automobile by himself or through some other person, and, if there be no direct proof as to the driver of the automobile, the owner will be presumed to have been driving.\u201d The brief immediately thereafter states, \u201clamentably, this Court has not heretofore adopted the foregoing rule, and no case has been found wherein this Court has considered the rule.\u201d\nPlaintiff relies on this language in Rodney v. Staman, 371 Pa. 1, 89 A. 2d 313, 32 A.L.R. 2d 976: \u201cAs to the appellant\u2019s contention that there is no evidence that the husband was driving the automobile at the time of the accident, there is evidence that he was the owner of the car. That fact affords a rebuttable presumption that he was the driver of the automobile at the time of the accident.\u201d Purdon\u2019s Penn. Statutes, Anno., Per. Ed., Vehicle Code, Title 75, Sec. 739, provides that \u201cin any proceeding for a violation of the provisions of this act or any local ordinance, rule or regulation, the registration plate displayed on such vehicle shall be prima facie evidence that the owner of such vehicle was then operating the same.\u201d The Court based the re-buttable presumption on this statute.\nPlaintiff in his brief quotes from the dissenting opinion in Welty\u2019s Estate v. Wolfe\u2019s Estate, 345 Mich. 408, 76 N.W. 2d 52, as follows: \u201cThe car in which both men died was a Pontiac. It belonged to defendant\u2019s decedent Wolfe. That fact gives rise to a rebuttable presumption that he was driving at the time.\u201d The sole authority cited to support such statement is the Pennsylvania case of Rodney v. Staman.\nPlaintiff in his brief quotes from Drahmann\u2019s Adm. v. Brink\u2019s Adm., (Kentucky Court of Appeals), 290 S.W. 2d 449, as follows: \u201cOther jurisdictions have held that a rebuttable presumption or inference arises that the defendant was driving upon proof of the defendant\u2019s ownership of the automobile or upon proof that he was driving shortly prior to the accident.\u201d The only authority cited is the Pennsylvania case of Rodney v. Staman.\nThere is an annotation to Rodney v. Staman in 32 A.L.R. 2d 988, et seq., entitled \u201cProof, in absence of direct testimony by survivors or eyewitnesses, of who, among occupants of motor vehicle, was driving it at time of accident.\u201d This annotation states this in effect that the principle of a rebuttable presumption set forth in the Pennsylvania case of Rodney v. Staman has been applied or recognized in Iowa, Michigan, Ohio and South Dakota. Then the annotation sets forth cases which hold that one who was shown to be driving an automobile shortly prior to an accident is presumed to have continued as driver, a principle that needs no consideration in the instant case, because there is no evidence that Donald Wilson was driving his car shortly prior to the accident.\n\u201cConsiderable legal controversy has developed over the extent to which presumptions may follow proof of ownership.\u201d Blashfield\u2019s Cyc. of Auto. Law and Practice, Vol. 9B, p. 528. See also 5 Am. Jur., Automobiles, Sec. 611.\nThe General Assembly in 1951 enacted G.S. 20-71.1, which is entitled \u201cRegistration evidence of ownership; ownership evidence of defendant\u2019s responsibility for conduct of operation.\u201d This statute was probably enacted in view of the decision in Carter v. Motor Lines, 227 N.C. 193, 41 S.E. 2d 586. Travis v. Duckworth, 237 N.C. 471, 75 S.E. 2d 309. G.S. 20-71.1 does not provide that proof of ownership of an automobile, or proof of the registration of an automobile in the name of any person, shall be prima facie evidence that the owner of the automobile, or the person in whose name it was registered, was the driver of the automobile at the time of a wreck.\nWe decline the suggestion of plaintiff\u2019s counsel to adopt a rule holding that upon the facts of the instant case a rebuttable presumption or inference arises that Donald Wilson was driving his automobile at the time of the fatal crash. Whether or not a rule as contended for by plaintiff should be adopted in this jurisdiction is a matter for the General Assembly.\nIn order to recover plaintiff must establish that Donald Wilson was negligently driving his automobile at the time of the wreck, and that his negligence was a proximate cause of his intestate\u2019s death. '\nThere is no direct evidence that Donald Wilson was driving his automobile shortly prior to the wreck, and no direct evidence that he was driving his automobile at the critical moment. Is there sufficient evidence, considered in the light most favorable to the plaintiff, to carry the case to the jury that Donald Wilson was driving his automobile at the time of the wreck?\nThe first man at the scene of the wreck was H. W. Holton, who heard the crash. When he arrived, Bonnie Patrick and Donald Wilson were in the front seat with the back seat thrown up on top of them against the windshield. Donald Wilson was on the right side of the front seat with his head partially out of the windshield. Bonnie Patrick was to his left with her head lying on the switch key and the steering column. Her left arm was up over the steering wheel, hanging onto it, and she was sort of down with her head against the rod of the steering wheel, and her left hand was over the steering wheel. A pool of blood was directly under the switch key where her head was resting. Her right foot was under the gas pedal from the right side, and her left foot was to the left of the steering column. A woman\u2019s shoulder bag was hanging on the window latch of the left door. The steering wheel of the automobile was on the left side. The switch key was just a few inches to the right of the steering column.\nThe dashboard on the right side of the automobile was considerably bent in. The right half of the windshield was gone, and the lower half of the steering wheel was bent downward.\nBonnie Patrick was unconscious, and died later without speaking. Donald Wilson was dead or unconscious. Their bodies were taken out on the right side of the automobile. Some of Bonnie Patrick\u2019s hair was found on the right-hand side of the dashboard. Did her hair get on the dashboard when the automobile hit the tree at terrific speed, or when her body after the collision was taken out on the right side of the automobile? Any answer would be a pure guess.\nDonald Wilson received in the collision a crushed chest. The dent in the dashboard was on the right side, and his body was found on the right side with his head partially out of the broken windshield. Bonnie Patrick, so far as the doctor knew, had no chest injuries.\nWhen in a case like this, the plaintiff must rely on the physical facts, and other evidence, which is circumstantial in nature, to show that Donald Wilson was driving the automobile at the time of the wreck, he must establish attendant facts and circumstances which reasonably warrant such inference. Whitson v. Frances, 240 N.C. 733, 83 S.E. 2d 879; Sowers v. Marley, 235 N.C. 607, 70 S.E. 2d 670. Such inference cannot rest on conjecture or surmise. Sowers v. Marley, supra. \u201cThe inferences contemplated by this rule are logical inferences reasonably sustained by the evidence, when considered in the light most favorable to the plaintiff.\u201d Whitson v. Frances, supra. \u201cA cause of action must be something more than a guess.\u201d Lane v. Bryan, 246 N.C. 108, 97 S.E. 2d 411. A resort to a choice of possibilities is guesswork, not decision. Hanrahan v. Walgreen Co., 243 N.C. 268, 90 S.E. 2d 392. To carry his case to the jury the plaintiff must offer evidence sufficient to take the case out of the realm of conjecture and into the field of legitimate inference from established facts.\nWhen the automobile struck the tree at tremendous speed, and the front seat was brought forward almost as far as it could possibly go, and the back seat was pulled loose and thrown up against the windshield on top of the occupants of the front seat, it would seem that there was no opportunity for the occupants of the front seat to have changed the position in which they were sitting immediately prior to the crash. It would further seem that the crash hurled Donald Wilson\u2019s head partially out of the windshield on the right side and with his head in that position his body could not have changed from the position it was in immediately prior to the collision with the tree. It would seem that all the evidence tends to show that Bonnie Patrick was driving the automobile at the time of the fatal wreck. But regardless of that, suffice it to say that considering all the evidence in the light most favorable to the plaintiff, we conclude that the plaintiff has not offered sufficient evidence to go to the jury that Donald Wilson was driving the Oldsmobile automobile at the time of the fatal collision. The judgment of nonsuit below is\nAffirmed.", "type": "majority", "author": "Parker, J." }, { "text": "Higgins, J.,\ndissenting. The evidence is plenary that the driver of the car was negligent and that that negligence proximately caused the death of both occupants. I think the evidence sufficiently indicates that Donald Wilson was the driver to require the submission of appropriate issues to the jury.\nWilson was the owner of the car. He called at her boardinghouse for Bonnie Patrick. They left together in his car between nine and ten at night on December 23, 1954. The fatal wreck occurred a few minutes after 12 that night. The evidence with respect to the wreck is fairly stated in the opinion of the Court. The question is: Which of the occupants was the driver ?\nThere is no evidence Miss Patrick had ever driven Wilson\u2019s car, or even that she knew how to drive. Wilson had a broken neck, crushed chest, broken right femur, and dislocation of the left hip joint. Miss Patrick had severe facial lacerations extending across the base of her nose to her left forehead, with multiple fractures of the underlying bones, a rupture of the right eye, and an open wound extending into the front of the brain. She had no chest injuries. The lower half of the steeringwheel was bent downward.\nIt would seem natural and probable that the driver held on to the steeringwheel until the crash and that the body or chest of the driver would be hurled against the steeringwheel and the neck snapped. Wilson\u2019s chest was crushed and his neck broken. Miss Patrick had only head \u2014 no chest or neck injuries. There was a dent in the instrument board near the center and blood and brown hair imbedded. Miss Patrick had brown hair. Wilson\u2019s hair was black.\nThe tremendous speed of the car and the violence of its impact into the tree certainly could have reversed the positions of the driver and the passenger. I think the problem as to which was the driver and which was the passenger should be settled by a jury as an issue of fact, and not by the Court as a question of law.", "type": "dissent", "author": "Higgins, J.," } ], "attorneys": [ "Spry, White & Hamrick for plaintiff, appellant.", "Deal, Hutchins & Minor for defendant, appellee." ], "corrections": "", "head_matter": "CLARENCE E. PARKER, Administrator of the Estate of BONNIE BEULAH IRENE PATRICK, Deceased, v. R. K. WILSON, Executor of the Estate of ROBERT DONALD WILSON, Deceased.\n(Filed 30 October, 1957)\n1. Automobiles \u00a7 41p\u2014\nG.S. 70-1.1 raises no presumption that the owner of an automobile was the driver thereof at the time of a wreck.\n2. Same: Constitutional Law \u00a7 10\u2014\nWhere the owner of an automobile is an occupant therein at the time of an accident, whether such owner should be presumed to have been the driver of the car at the crucial time is a matter for the General Assembly and not the courts.\n3. Automobiles \u00a7 41p\u2014\nWhere plaintiff must rely on the physical facts and other evidence of a circumstantial nature to establish which of the two occupants of a car was the driver thereof at the time of the fatal accident, plaintiff must establish attendant facts and circumstances which reasonably warrant his asserted inference, and such inference cannot rest on conjecture or surmise.\n4. Trial \u00a7 23a\u2014\nTo carry his case to the jury plaintiff must offer evidence sufficient to take the case out of the realm of conjecture and into the field of legitimate inference.\n5. Automobiles \u00a7 41p \u2014 Physical facts held insufficient to go to jury on question of whether defendant\u2019s testate was driving car.\nThe evidence tended to show that plaintiff\u2019s intestate and defendant\u2019s testate were riding in testate\u2019s car at the time it crashed violently into a tree, resulting in the death of both. After the accident, testate\u2019s body was found on the right with his head partially through the windshield, and the body of the plaintiff\u2019s intestate was found on the left, with her head lying on the steering column and switch key, which was just a few inches to the right of the steering column, and with her left arm up over the steering wheel. Held: The evidence, together with other evidence in the case in regard to the position of the bodies and damage to the car, is insufficient to go to the jury upon plaintiff\u2019s averment that defendant\u2019s testate was driving the car at the time of the fatal accident.\nHiggins, J., dissenting.\nAppeal by plaintiff from Crissman, J., January Term 1957 of Forsyth.\nCivil action to recover damages for an alleged wrongful death brought by the administrator of the estate of Bonnie Beulah Irene Patrick, deceased, against the executor of the estate of Robert Donald Wilson, deceased.\nFrom a judgment of nonsuit entered at the close of plaintiff\u2019s evidence, plaintiff appeals.\nSpry, White & Hamrick for plaintiff, appellant.\nDeal, Hutchins & Minor for defendant, appellee." }, "file_name": "0047-01", "first_page_order": 89, "last_page_order": 97 }