{ "id": 8575318, "name": "FOLGER L. CARTER. Petitioner v. EDWARD SCHEIDT, COMMISSIONER OF MOTOR VEHICLES OF NORTH CAROLINA, Respondent", "name_abbreviation": "Carter v. Scheidt", "decision_date": "1964-04-29", "docket_number": "", "first_page": "702", "last_page": "706", "citations": [ { "type": "official", "cite": "261 N.C. 702" } ], "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": "114 S.E. 2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623214 ], "opinion_index": 0, "case_paths": [ "/nc/252/0471-01" ] }, { "cite": "98 S.E. 2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626927 ], "opinion_index": 0, "case_paths": [ "/nc/246/0452-01" ] } ], "analysis": { "cardinality": 506, "char_count": 12931, "ocr_confidence": 0.55, "pagerank": { "raw": 8.203483792463423e-08, "percentile": 0.4764285485369997 }, "sha256": "af57bd547b8b01c5bf0ec3007ef18fd6a25159500287257e5e6cb2f1693b65e7", "simhash": "1:acc6cc07c500b6bd", "word_count": 2090 }, "last_updated": "2023-07-14T21:53:45.776989+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FOLGER L. CARTER. Petitioner v. EDWARD SCHEIDT, COMMISSIONER OF MOTOR VEHICLES OF NORTH CAROLINA, Respondent." ], "opinions": [ { "text": "Bobbitt, J.\nFollowing provisions with reference to the aggrieved party\u2019s petition and the Commissioner\u2019s answer, G.S. 20-279.2 (b), in pertinent part, provides:\n\u201c(b) ... At the hearing upon the petition the judge shall sit without the intervention of a jury and shall receive such evidence as shall be deemed by the judge to be relevant and proper. Except as otherwise provided in this section, upon the filing of the petition herein provided for, the procedure shall be the same as in civil actions.\n\u201cThe matter shall be heard de novo and the judge shall enter his order affirming the act or order of the Commissioner, or modifying same, including the amount of bond or security to be given by the petitioner. If the court is of the opinion that the petitioner was probably not guilty of negligence or that the negligence of the other party was probably the sole proximate cause of the collision, the judge shall reverse the act or order of the Commissioner. Either party may appeal . . .\n\u201cNo act, or order given or rendered in any proceeding hereunder shall be admitted or used in any other civil or criminal action.\u201d\nNo question as to the validity of the Commissioner\u2019s order of April 18, 1963, when issued, is presented. The questions presented relate to whether petitioner is entitled to a reversal of said order on the ground that the negligence of Hout was the sole proximate cause of his death.\nIn his answer to the petition, the Commissioner asserts he \u201chas no authority of investigation or determination\u201d with reference to whether petitioner \u201cwas probably not guilty of negligence\u201d or with reference to whether the negligence of Hout \u201cwas probably the sole proximate cause of the accident.\u201d Adverting to the fact that any determination he might make would have no bearing upon his mandatory duty under G.S. 20-279.5 to suspend petitioner\u2019s operator\u2019s license, the Commissioner takes no position with reference to these questions. He prays that said questions be determined \u201cwithout the presence of the Commissioner\u201d and that the court \u201center such order affirming, modifying, or reversing the order of the Commissioner as it deems required by the evidence.\u201d\nIn our view, G.S. 20-279.2(b) imposes upon the Commissioner (or his representative) the duty to answer all essential allegations of the petition and to be present and participate in the hearing before the judge. Otherwise, since the commencement of the proceeding suspends the Commissioner\u2019s order \u201cpending the final determination of the review,\u201d the proceeding might lie dormant indefinitely for lack of activity on the part of the petitioner. While the statute provides that the court shall make the crucial determinations, in our opinion the statute contemplates that the Commissioner shall bring forward for the court\u2019s consideration all evidence in his possession pertinent to decision. Even so, the Commissioner\u2019s failure to so answer or be present at the hearing before Judge Armstrong was not prejudicial to petitioner.\nWhen notified the petition had been\u2019 filed, the administrator of Hout, without first obtaining an order permitting him to intervene, filed an answer to the petition. The statute makes no provision for intervention by persons who might recover damages from petitioner based on his actionable negligence in connection with such accident. They have no standing in such proceeding as a matter of right. Even so, it is appropriate that the Commissioner notify such persons of the petition and of the hearing to the end that all competent and relevant evidence may be brought forward. In Johnson v. Scheidt, Comr. of Motor Vehicles, 246 N.C. 452, 98 S.E. 2d 451, such persons were made parties by consent. While such persons may not be considered proper parties to the proceeding in a technical sense, the court, in its discretion, may permit such persons to file a statement relevant to the facts alleged in the petition and may permit them to participate in the hearing. However, such statement, whether denominated an answer, affidavit or otherwise, may not be considered competent evidence in the hearing.\nPetitioner assigns as error that portion of the judgment reading, . . and answer of the intervening party, Aubrey I. Hout, Administrator of the Estate of Jack James Hout.\u201d However, it does not appear that the filing of an answer by the administrator of Hout prejudiced petitioner. It is clear that Judge Armstrong did not consider either the petition or the answers as evidence. It is expressly provided that the finding of fact that petitioner \u201cwas probably guilty of negligence\u201d was based, on \u201cthe evidence presented,\u201d \u201csuch evidence being as set forth in the transcript of the record and made a part thereof.\u201d Petitioner\u2019s said assignment of error is overruled.\nThe burden of proof was on petitioner to show he \u201cwas probably not guilty of negligence\u201d or \u201cthat the negligence of the other party was probably the sole proximate cause of the collision.\u201d The court made a positive finding that petitioner \u201cwas probably guilty of negligence.\u201d Petitioner assigns as error this finding.\nThere was testimony before Judge Armstrong tending to show: Where the accident occurred, U. S. Highway No. 220 (also referred to as Fayetteville Street) was a three-lane highway. Petitioner was traveling south in the center lane \u201cin the process of passing this other car.\u201d Hout, riding his bicycle, was crossing from the west toward the east side of the highway. When struck by petitioner, Hout was in the center lane at a point four feet and three inches west of the east lane. Brit-tain Street extended west from No. 220 (Fayetteville Street). The impact \"was in the center lane of the highway just about directly across from Brittain Street\u201d \u2014 \u201cjust about in front of Brittain Street.\u201d It is noted that petitioner alleged the collision occurred when he was \u201cin the process of passing another automobile headed in the same direction\u201d in which he was traveling.\nWhile the evidence offered by petitioner tended to show negligence on the part of Hout, it also tended to show that petitioner at the time of the collision was overtaking and passing another automobile proceeding in the same direction at a street or highway intersection. Irrespective of whether this evidence is considered sufficient to show a violation of G.S. 20-150 (c) and therefore negligence per se, see Adams v. Godwin, 252 N.C. 471, 114 S.E. 2d 76, it was sufficient, in our opinion, to support the court\u2019s finding that petitioner \u201cwas probably guilty of negligence.\u201d Hence, the assignment of error directed to this finding is overruled.\nBy express provision of G.S. 20-279.2 (b), said finding may not be admitted or used in the pending civil action for alleged wrongful death.\nFor the reasons stated, the judgment of the court below is affirmed.\nAffirmed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "L\u201e T. Hammond, Sr. and L. T. Hammond, Jr., for petitioner appellant.", "Attorney General Bruton and Assistant Attorney General Brady for respondent appellee." ], "corrections": "", "head_matter": "FOLGER L. CARTER. Petitioner v. EDWARD SCHEIDT, COMMISSIONER OF MOTOR VEHICLES OF NORTH CAROLINA, Respondent.\n(Filed 29 April, 1964.)\n1. Automobiles \u00a7 2\u2014\nUpon petition of a motorist for tlie reversal of an order of the Commissioner of Motor Vehicles suspending his driver\u2019s license, G.S. 20-279.2 (b) places the duty upon the Commissioner or his representative to answer the essential elements of the petition and be present and participate in the hearing before the judge, but the Commissioner\u2019s failure to so answer and be present at the hearing cannot be prejudicial to petitioner.\n2. Same\u2014\nPersons who may recover damages in connection with a collision upon which the Commissioner of Motor Vehicles has suspended an automobile driver\u2019s license have no standing as a matter of right at the hearing of the driver\u2019s petition for reversal of the Commissioner\u2019s order, but the court may permit such persons to file a statement relevant to the facts and participate in the hearing. Their statement is not competent evidence, but in the instant case it appears that the court did not consider the statement as evidence, and therefore reference in the order to the \u201canswer of the intervening party\u201d was not prejudicial.\n3. Same\u2014\nOn the hearing of a petition to reverse the order of the Commissioner of Motor Vehicles suspending petitioner\u2019s driver\u2019s license, the burden is upon petitioner to show that he was probably not negligent or that the negligence of the other party was probably the sole proximate cause of the collision, and where there is evidence before the court that the collision with a cyclist crossing the highway occurred as petitioner was overtaking and passing another vehicle at a street or highway intersection, the evidence is sufficient to support the court\u2019s finding that petitioner was \u201cprobably guilty of negligence.\u201d\nAppeal by petitioner from Armstrong, J., November 4, 1963, Civil Session of RaNdolph.\nPetitioner (Folger L. Carter), aggrieved by an order of the Commissioner of Motor Vehicles dated April 18, 1963, filed a petition September 30, 1963, in accordance with the procedure prescribed by G.S. 20-279.2(b); and, upon allegations to the effect that the sole proximate cause of the collision referred to below was the negligence of Jack James Hout (Hout), prayed that the court reverse the Commissioner\u2019s order.\nOn February 22, 1963, on U. S. Highway No. 220, petitioner, driving his 1953 Plymouth, collided with Hout, a thirteen-year old boy, who was riding a bicycle. As a result Hout was fatally injured.\nPetitioner\u2019s automobile liability insurance policy had expired at 12:00 midnight on February 21, 1963.\nAnswering the petition, the Commissioner averred, in part, that his order of April 18, 1963, suspending petitioner\u2019s operator\u2019s license, was issued on account of petitioner\u2019s failure to comply with the Commissioner\u2019s prior order requiring that petitioner deposit security in the amount of $5,000.00 to satisfy any judgment or judgments against petitioner for damages resulting from said collision; that petitioner \"was not exempt from the provisions of G.S. 20-279.5 of the Motor Vehicle Safety and Financial Responsibility Act of 1953 by virtue of the petitioner\u2019s maintaining automobile liability insurance or otherwise\u201d; that he had notified the other party (the administrator of Hout) of the petition; and that he presented to the court for determination the questions raised by the petition. The Commissioner attached to his answer a copy of the accident report filed with the Department of Motor Vehicles pursuant to G.S. 20-166.1.\nOn October 15, 1963, the administrator of Hout filed an answer to the petition in which he alleged that his intestate\u2019s death was proximately caused by the negligence of petitioner. (Note: It appears from the petition that the administrator of Hout had instituted a civil action against petitioner on March 27, 1963, to recover damages for the alleged wrongful death of his intestate.)\nAs indicated, the allegations of the petition and of the administrator\u2019s answer are in sharp and irreconcilable conflict.\nAt the hearing before Judge Armstrong, the only evidence was that offered by petitioner. Petitioner did not testify but offered the testimony of John Henry Armstrong and of Ray Robert Skelton. At the conclusion of their testimony, Judge Armstrong stated: \u201cI could not hold that he was not guilty of negligence. I will affirm the order of the Commissioner.\u201d Thereupon, Judge Armstrong entered judgment as follows:\n\u201cThis cause coming on to be heard, and being heard . . . upon the petition filed by the petitioner, answer of the respondent, and answer of the intervening party, Aubrey I. Hout, Administrator of the Estate of Jack James Hout;\n\u201cThe petitioner prays that the Court reverse the order of the Commissioner of the North Carolina Department of Motor Vehicles suspending the North Carolina operator\u2019s license of the petitioner as provided for under the provisions of G.S. 20-279.2;\n\u201cThat this matter was heard in open Court, at which time the petitioner was present, together with' his attorney, and presented evidence; such evidence being as set forth in the transcript of the record and made a part thereof;\n\u201cIt appearing to the Court and the Court finding as a fact from the evidence presented that the petitioner was probably guilty of negligence in the accident referred to in the petition and answers filed herein;\n\u201cIT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the said order or acts of the Commissioner of the North Carolina Department of Motor Vehicles issued on April 18, 1963, directing the suspension of the driver\u2019s license of the petitioner be, and the same is hereby sustained.\n\u201cIT IS FURTHER ORDERED, ADJUDGED AND DECREED that the petitioner, Folger L. Carter, surrender and deliver his North Carolina operator\u2019s license to the Commissioner of the North Carolina Department of Motor Vehicles as required by law.\u201d\nPetitioner excepted and appealed.\nL\u201e T. Hammond, Sr. and L. T. Hammond, Jr., for petitioner appellant.\nAttorney General Bruton and Assistant Attorney General Brady for respondent appellee." }, "file_name": "0702-01", "first_page_order": 742, "last_page_order": 746 }