{ "id": 8626752, "name": "J. C. JOHNSON, Administrator of WILLIAM CLIFTON SCOTT, v. KENNETH FOX, Administrator of WILLIE MANSFIELD DISHMAN", "name_abbreviation": "Johnson v. Fox", "decision_date": "1961-04-12", "docket_number": "", "first_page": "454", "last_page": "456", "citations": [ { "type": "official", "cite": "254 N.C. 454" } ], "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": "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": "100 S.E. 2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624963 ], "opinion_index": 0, "case_paths": [ "/nc/247/0047-01" ] }, { "cite": "98 S.E. 2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626505 ], "opinion_index": 0, "case_paths": [ "/nc/246/0371-01" ] }, { "cite": "118 S.E. 2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "254 N.C. 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625893 ], "opinion_index": 0, "case_paths": [ "/nc/254/0292-01" ] } ], "analysis": { "cardinality": 409, "char_count": 7428, "ocr_confidence": 0.559, "pagerank": { "raw": 1.0666201262889835e-07, "percentile": 0.5585453051509953 }, "sha256": "f0e4eb8432c2060f215bf20b931371774109362b87c035b053d5dc181bbc5fbc", "simhash": "1:cb82d89b72bfff1b", "word_count": 1258 }, "last_updated": "2023-07-14T21:52:35.681015+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "J. C. JOHNSON, Administrator of WILLIAM CLIFTON SCOTT, v. KENNETH FOX, Administrator of WILLIE MANSFIELD DISHMAN." ], "opinions": [ { "text": "ParKer, J.\nThis is a summary of plaintiff\u2019s evidence, except when we quote:\nAbout 6:00 o\u2019clock p.m. on 7 August 1959 William Clifton Scott, plaintiff\u2019s intestate, left his mother\u2019s home in a Pontiac automobile driven away by Willie Mansfield Dishman, defendant\u2019s intestate.\nAbout 4:00 o\u2019clock a.m. on 8 August 1959 Bob Cavin operator of a funeral home in the town of Mooresville, arrived at the scene of an accident on U.S. Highway No. 21 near Mooresville. There he saw a Pontiac automobile, whose top had been completely \u201csheared\u201d off. He walked into the automobile and picked up the living body of William Clifton Scott, which was lying on the floor of the automobile next to the back seat. Near the scene he saw the dead body of Willie Mansfield Dishman. He carried Scott to a hospital, where he died. The automobile was completely demolished; the front seat had been completely knocked loose.\nAbout 4:30 o\u2019clock a.m. on 8 August 1959 R. L. Henry, a State highway patrolman, arrived at the scene. He testified as follows without objection: \u201cHe observed a 1955 Pontiac automobile that had run off the right-hand side of said highway traveling north; that the car had slid 46 feet on the road on a slight curve before leaving the road and then had skidded 166 feet when it clipped off a pine tree approximately 12 inches in diameter, peeling the top of the car off; that the car came to rest after skidding 94 feet more and striking two smaller trees. That the 1955 Pontiac automobile belonged to Willie Mansfield Dishman. That the body of Willie Mansfield Dish-man was found 50 feet from where the car stopped; that Willie Mansfield Dishman had a North Carolina driver\u2019s license. That William Clifton Scott had already been removed from the scene of the accident to the hospital at Mooresville, N. C., when he arrived a/t the scene of the accident; that William Clifton Scott did not have any driver\u2019s license on his person.\u201d\nThe crucial question is whether the physical facts at the scene of the wreck, and the attendant facts and circumstances, which are circumstantial in nature, when considered in the light most favorable to the plaintiff, permit the legitimate and reasonable inference that defendant\u2019s intestate Dishman was driving his automobile at the time of the fatal wreck.\nThis crucial fact can be established by sufficient circumstantial evidence, either alone or in combination with direct evidence. Pridgen v. Uzzell, 254 N.C. 292, 118 S.E. 2d 755; Bridges v. Graham, 246 N.C. 371, 98 S.E. 2d 492.\nUpon the facts of the instant case no. rebuttable presumption or inference arises that Willie Mansfield Dishman was driving his automobile at the time of the fatal wreck. G.S. 20-71.1 raises no such presumption. Parker v. Wilson, 247 N.C. 47, 100 S.E. 2d 258; Stegall v. Sledge, 247 N.C. 718, 102 S.E. 2d 115.\nWhat was said in the Parker case is controlling here: \u201cWhen 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. \u2018The inferences Contemplated by this rule are logical inferences reasonably sustained by the evidence, when considered in the light most favorable to the plaintiff.\u2019 Whitson v. Frances, supra. \u2018A cause of action must be something more than a guess.\u2019 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 conj ecture and into the field of legitimate inference from established facts.\u201d\nIt may be guessed or conjectured that Dishman was driving his automobile at the time of the fatal wreck, but a resort to a choice of 'possibilities is guesswork and speculation not judicial decision. Considering plaintiff\u2019s evidence in the light most favorable to him, and giving him the benefit of every reasonable inference to be drawn therefrom (Pridgen v. Uzzell, supra,) the plaintiff has not offered evidence as to the driving of the automobile at the time of the fatal wreck by Dishman sufficient to take his case out of the realm of conjecture and into the field of legitimate inference from established facts. Therefore, the trial court correctly entered a judgment of involuntary non-suit at the close of plaintiff\u2019s evidence.\n\u25a0 Plaintiff relies on Stegall v. Sledge, supra. The facts are easily distinguishable. In the Stegall case plaintiff offered evidence to the effect that she had never had an operator\u2019s license, and could not drive an automobile. The cases of Bridges v. Graham, supra, and Pridgen v. Uzzell, supra, are also factually distinguishable. In each of these 'cases defendant\u2019s intestate was seen driving the automobile on a public road a short time before the fatal wreck, which occurred in the Bridges case on the same road some 10 or 12 miles from where Graham\u2019s intestate was seen driving it, and which occurred in the Pridgen case on the same road some 1.9 miles from where Uzzell\u2019s intestate was seen driving it.\nThe judgment of involuntary nonsuit is\nAffirmed.", "type": "majority", "author": "ParKer, J." } ], "attorneys": [ "Pay Jennings and Land, Sowers & Avery for plaintiff, appellant.", "R. A. Hedrick and Adams \u25a0& Dearman by C. H. Dearman for defendant, appellee." ], "corrections": "", "head_matter": "J. C. JOHNSON, Administrator of WILLIAM CLIFTON SCOTT, v. KENNETH FOX, Administrator of WILLIE MANSFIELD DISHMAN.\n(Filed 12 April, 1961.)\n1. Automobiles \u00a7 41p\u2014\nThe identity of the driver of a vehicle may he established by circumstantial evidence, either alone or in combination with direct evidence, but such facts and circumstances must establish identity as a logical and reasonable inference and not merely raise a conjecture, guess, or choice of possibilities.\n2. Same: Automobiles \u00a7 54f\u2014\nG.S. 20-71.1 raises no presumption or inference that the owner of a vehicle was driving at the time of the accident in question.\n3. Trial \u00a7 23a\u2014\nIn order to be sufficient to be submitted to the jury, plaintiff\u2019s evidence must take the case out of the realm of conjecture and into the field of legitimate inference from established facts.\n4. Automobiles \u00a7 41p\u2014 Evidence of identity of driver held insufficient to be submitted to the jury.\nEvidence tending to show that when the vehicle was driven from the home of plaintiff\u2019s intestate it was driven by the owner with intestate as a passenger, that some ten hours thereafter the vehicle was found demolished off of the hard surface, that the body of intestate was found on the floor of the car next to the back seat, and that the body of the owner was found some fifty feet from where the ear had stopped, and that the owner had a driver\u2019s license on his person but that intestate had none, is held insufficient to be submitted to the jury on the question of whether the owner was driving the vehicle at the time of the fatal accident.\nAppeal by plaintiff from Phillips, J., November Term 1960 of IREDELL.\nCivil action to recover damages for the death of plaintiff\u2019s intestate.\nFrom a judgment of involuntary nonsuit entered at the close of plaintiff\u2019s evidence, plaintiff appeals.\nPay Jennings and Land, Sowers & Avery for plaintiff, appellant.\nR. A. Hedrick and Adams \u25a0& Dearman by C. H. Dearman for defendant, appellee." }, "file_name": "0454-01", "first_page_order": 492, "last_page_order": 494 }