{ "id": 8622847, "name": "JAMES IVEY WILLIAMSON v. JAMES HAL VARNER and LULA LUTHER SAUNDERS", "name_abbreviation": "Williamson v. Varner", "decision_date": "1960-04-27", "docket_number": "", "first_page": "446", "last_page": "450", "citations": [ { "type": "official", "cite": "252 N.C. 446" } ], "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": "150 S.E. 501", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "197 N.C. 720", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631353 ], "opinion_index": 0, "case_paths": [ "/nc/197/0720-01" ] }, { "cite": "34 S.E. 2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604870 ], "opinion_index": 0, "case_paths": [ "/nc/225/0232-01" ] }, { "cite": "64 S.E. 2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608425 ], "opinion_index": 0, "case_paths": [ "/nc/233/0377-01" ] }, { "cite": "82 S.E. 2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600212 ], "opinion_index": 0, "case_paths": [ "/nc/240/0353-01" ] }, { "cite": "52 S.E. 2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628748 ], "opinion_index": 0, "case_paths": [ "/nc/230/0122-01" ] }, { "cite": "86 S.E. 2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608795 ], "opinion_index": 0, "case_paths": [ "/nc/242/0059-01" ] }, { "cite": "86 S.E. 2d 916", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608611 ], "opinion_index": 0, "case_paths": [ "/nc/242/0047-01" ] } ], "analysis": { "cardinality": 469, "char_count": 9884, "ocr_confidence": 0.544, "pagerank": { "raw": 2.3030791639557366e-07, "percentile": 0.7875868438661868 }, "sha256": "ebb19173b88f50caa8c5a37966f17fad8d3e9ba8976c00d2f4494fb630c45ec9", "simhash": "1:bfdd5df606aff257", "word_count": 1610 }, "last_updated": "2023-07-14T17:30:54.749131+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES IVEY WILLIAMSON v. JAMES HAL VARNER and LULA LUTHER SAUNDERS." ], "opinions": [ { "text": "Rodm\u00e1N, J.\nThe sole question now for consideration is the correctness of the ruling nonsuiting the counterclaim of Varner. The judgment entered at the September Term on Varner\u2019s motion dismissing plaintiff\u2019s action against Varner did not affect Varner\u2019s claim against plaintiff. Varner\u2019s cause of action stated as a counterclaim remained on the docket and required a determination. G.S. 1-183.1.\nVarner cannot recover from plaintiff unless plaintiff negligently caused damage to Varner\u2019s motor vehicle. To establish negligence proximately causing damage, Varner alleged that plaintiff was operating his motor vehicle on a public highway at night and without lights. If so, this was a violation of a statutory provision, G.S. 20-129, enacted for the protection of those using the highways. Such violation is a misdemeanor, G.S. 20-176, and is negligence per se. S. v. Norris, 242 N.C. 47, 86 S.E. 2d 916; S. v. Eason, 242 N.C. 59, 86 S.E. 2d 774; Thomas v. Motor Lines, 230 N.C. 122, 52 S.E. 2d 377; Aldridge v. Hasty, 240 N.C. 353, 82 S.E. 2d 331; Chaffin v. Brame, 233 N.C. 377, 64 S.E. 2d 276.\nThere is positive and unequivocal evidence from Varner\u2019s witnesses that plaintiff\u2019s automobile had no lights. He was traveling south on Highway 220. Varner\u2019s automobile, operated by Saundiers, was traveling north on that highway. Varner\u2019s evidence is sufficient to support a finding that Saunders, traveling north, gave signal of her intention to\u2019 turn left into Walker Avenue. She was confronted with a green light. A car with headlights was approaching. She stopped and waited for that car to pass. Seeing no other car approaching and with a signal indicating her intention, she executed her turn and was in the intersection and past the center of the intersection when she was struck by the motor vehicle operated by plaintiff traveling at an unreasonable rate of speed under existing conditions. Plaintiff maintained that his vehicle was equipped with headlights, that he saw Saunders approaching, saw the turn signal that she gave, but did not anticipate that she would execute a left turn immediately in front of him. This dispute with respect to the factual situation can only be resolved by a jury, unless a jury trial is waived and the judge is permitted to find the facts.\nPlaintiff filed no reply to Varner\u2019s counterclaim. He does not, eo nomine, allege contributory negligence as a defense to the counterclaim. His complaint does, however, allege negligence on the part of Saunders, and he alleges that Saunders was Varner\u2019s agent. The allegations so made are, in our opinion, sufficient to serve as a plea imputing Saunders\u2019 negligence to Varner and sufficient to defeat Var-ner\u2019s claim, if established. There was no necessity for merely repeating the same allegations with respect to the negligence of Saunders and the imputation of this negligence to Varner.\nIf the jury should find that plaintiff was negligent and that his negligence was one of the proximate causes of the damage to Var-ner\u2019s automobile, whether the liability so created could be defeated by negligence of Saunders would depend upon the relation existing between Saunders and Varner. Plaintiff alleges that Saunders was Varner\u2019s agent and at the time of the collision was acting in the course and scope of her employment. He alleges and Varner admits ownership of the vehicle driven by Saunders. Plaintiff has, therefore, the benefit of the statutory presumption of agency. G.S. 20-71.1. If Saunders was an agent of Varner, and she was negligent, and such negligence was a proximate cause of the collision, Varner could not recover.\nVarner and Saunders, however, deny the allegations of agency and alleged facts establishing the relationship of bailor and bailee between Varner and Saunders. In an action by bailor against a third party, bailee's negligence is not imputed to bailor. Sink v. Sechrest, 225 N.C. 232, 34 S.E. 2d 2; Martin v. Bus Line, 197 N.C. 720, 150 S.E. 501.\nHence an issue of fact arises on the pleadings and evidence, namely: Was Saunders the agent of Varner? If Saunders was agent and acting in the scope of her agency, her negligence would be imputed to her principal, Varner, and would bar recovery by him. If she was not his agent, but a mere bailee, her negligence would not defeat Varner\u2019s claim.\nWhether Saunders was guilty of negligence which was the proximate cause of the collision is, also, we think, a question of fact that must be decided by a jury. Since the rights of the parties cannot be determined as a matter of law, it follows that the judgment is\nReversed.", "type": "majority", "author": "Rodm\u00e1N, J." } ], "attorneys": [ "II. Wade Yates for appellant James Hal Varner.", "No counsel contra." ], "corrections": "", "head_matter": "JAMES IVEY WILLIAMSON v. JAMES HAL VARNER and LULA LUTHER SAUNDERS.\n(Filed 27 April, 1960.)\n1. Pleadings \u00a7 8: Trial \u00a7 26\u2014\nTie allowance of nonsuit in favor of a defendant sought to be held liable under the doctrine of respondeat superior does not affect such defendant\u2019s counterclaim against plaintiff for damages to property.\n2. Automobiles \u00a7 11\u2014\nThe operation of an automobile on the public highway at night without lights is negligence per se. G:B. 20-129.\n3. Automobiles \u00a7 41h\u2014\nEvidence tending to show that the operator of defendant\u2019s ear, traveling north, gave the signal for a left turn at an intersection, waited until a car with headlights burning traveling south, passed, and then proceeded to turn left, and was struck by plaintiff\u2019s car which was traveling south at an excessive rate of speed without headlights, raises, on defendant\u2019s counterclaim, the issue of plaintiff\u2019s negligence for the determination of the jury, and plaintiff\u2019s evidence in conflict therewith cannot entitle plaintiff to nonsuit on the counterclaim.\n4. Automobiles \u00a7 35; Pleadings \u00a7 10\u2014\nWhere plaintiff alleges negligence on the part of the defendant driver and that the driver was the agent of defendant owner, there is no necessity, upon the filing of a counterclaim by defendant owner to recover for damages to his vehicle, for plaintiff to repeat the allegation of negligence and the imputation of such negligence to defendant owner, and the filing of a reply to the counterclaim is not required.\n5. Automobiles \u00a7 54f\u2014\nWhere plaintiff alleges that defendant driver was the agent of defendant owner and was acting in the course of the employment at the time of the collision, and that defendant owner admitted the ownership of the vehicle, plaintiff is entitled to the benefit of G.'S. 20-71.1, and upon defendant owner\u2019s denial of the agency and the introduction of evidence that the driver was a bailee, an issue of fact is raised for the determination of a jury.\nAppeal by defendant Varner from Armstrong, J., November 1959 Civil Term, of RaNdolph.\nThis action was instituted in May 1959 by plaintiff against defendants, hereafter respectively designated as Varner and Saunders, to recover damage to plaintiff\u2019s automobile sustained in a collision occurring about midnight 14 May 1959 at the intersection of Highway 220, sometimes referred to as Fayetteville Street, and Walker Avenue in Asheboro. Plaintiff alleged that Varner was the owner of an automobile operated with Varner\u2019s consent by Saunders, the collision was the result of the negligent operation by Saunders, in that she operatedi in a reckless manner, at an excessive rate of speed, and turned to her left immediately in front of plaintiff without warning.\nSaunders, answering, admitted that she was operating Varner\u2019s automobile. She denied that she was acting as his agent, asserting the motor vehicle had been loaned to her for her benefit. She denied negligence, asserted contributory negligence to defeat plaintiff\u2019s claim, asserting specifically that he operated his motor vehicle without headlights at an unlawful rate of speed and collided with her after she had given proper signals of her intention to malee a left turn and had traversed the greater part of the intersection. She did not assert a counterclaim.\nVarner answered and admitted ownership of the vehicle driven by Saunders. He averred that Saunders was operating the vehicle for her personal use but with his consent. He denied any negligence on his part or on the part of Saunders. He pleaded contributory negligence on the part of plaintiff to defeat plaintiff\u2019s claim, asserting the same acts of negligence alleged by Saunders. He then asserted a counterclaim for damage done to his motor vehicle in the collision. The negligence charged against plaintiff by Varner was unlawful speed, failure to maintain a proper lookout, and operation without lights. The cause was tried at the September Term of Randolph at which time Judge Sharp, then presiding, allowed the motion of Varner for judgment of nonsuit.\nIssues were submitted to the jury to determine Saunders\u2019 negligence, plaintiff\u2019s contributory negligence, damage to plaintiff\u2019s motor vehicle and negligence of plaintiff causing injury to Varner\u2019s motor vehicle. The jury answered the issue of Saunders\u2019 negligence in the affirmative, contributory negligence in the negative, assessed damages and found no negligence on the part of plaintiff causing damage to Varner. On motion of defendants the court in its discretion set the verdict aside and ordered a new trial. It allowed plaintiff to amend his complaint. Pursuant to this authorization, plaintiff amended his complaint to specifically allege that Saunders was at the time of the collision operating the automobile as Varner\u2019s agent and in the scope of her employment. It was also amended to allege Saunders\u2019 failure to yield the right of way.\nThe cause was heard on the amended pleadings at the November Term 1959. At the conclusion of all the evidence the motion of defendants to nonsuit plaintiff\u2019s action was allowed. The motion of plaintiff to nonsuit Varner\u2019s counterclaim was likewise allowed. Var-ner excepted and appealed. Plaintiff did not appeal from the judgment dismissing his action.\nII. Wade Yates for appellant James Hal Varner.\nNo counsel contra." }, "file_name": "0446-01", "first_page_order": 486, "last_page_order": 490 }