{ "id": 8565295, "name": "MRS. MURRELL (IDA) BROWN v. WALTER NESBITT and ROBERT LEE BROWN", "name_abbreviation": "Brown v. Nesbitt", "decision_date": "1967-10-11", "docket_number": "", "first_page": "532", "last_page": "538", "citations": [ { "type": "official", "cite": "271 N.C. 532" } ], "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": "153 S.E. 2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "269 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564739 ], "opinion_index": 0, "case_paths": [ "/nc/269/0546-01" ] }, { "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": "79 S.E. 2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626779 ], "opinion_index": 0, "case_paths": [ "/nc/239/0308-01" ] }, { "cite": "79 S.E. 2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626159 ], "opinion_index": 0, "case_paths": [ "/nc/239/0170-01" ] }, { "cite": "150 S.E. 2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "268 N.C. 340", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561856 ], "opinion_index": 0, "case_paths": [ "/nc/268/0340-01" ] }, { "cite": "110 S.E. 2d 295", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "250 N.C. 673", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625733 ], "opinion_index": 0, "case_paths": [ "/nc/250/0673-01" ] }, { "cite": "81 S.E. 2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 217", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596709 ], "opinion_index": 0, "case_paths": [ "/nc/240/0217-01" ] }, { "cite": "113 S.E. 2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "430" } ], "opinion_index": 0 }, { "cite": "252 N.C. 289", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621213 ], "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0289-01" ] }, { "cite": "96 S.E. 2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "21" } ], "opinion_index": 0 }, { "cite": "245 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609392 ], "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/nc/245/0236-01" ] }, { "cite": "145 S.E. 2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560382 ], "opinion_index": 0, "case_paths": [ "/nc/266/0304-01" ] }, { "cite": "145 S.E. 2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8577195 ], "opinion_index": 0, "case_paths": [ "/nc/265/0733-01" ] } ], "analysis": { "cardinality": 615, "char_count": 14158, "ocr_confidence": 0.546, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20634253193912078 }, "sha256": "624f5cb9d1be0c87dac2ca46e816ddccd207c10060e021029feebaf59754b807", "simhash": "1:b2a384cb17a7a41e", "word_count": 2406 }, "last_updated": "2023-07-14T20:46:10.850261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MRS. MURRELL (IDA) BROWN v. WALTER NESBITT and ROBERT LEE BROWN." ], "opinions": [ { "text": "Bobbitt, J.\nNesbitt excepted to and assigns as error the court\u2019s denial of his motion for judgment of nonsuit at the conclusion of all the evidence. This assignment presents, inter alia, whether the evidence admitted against Nesbitt was sufficient to support a finding that plaintiff\u2019s damage was proximately caused by the negligence of Brown, allegedly the agent of Nesbitt.\nTo establish Nesbitt\u2019s liability under the doctrine respondeat superior, plaintiff was required to prove, by evidence competent against Nesbitt, that Brown was negligent and that his negligence proximately caused plaintiff\u2019s damage. Branch v. Dempsey, 265 N.C. 733, 145 S.E. 2d 395; Edwards v. Hamill, 266 N.C. 304, 145 S.E. 2d 884.\nThe Patrolman\u2019s testimony that, when he tried the brakes after the truck had struck the building, \u201c(t)he brake pedal was mashed all the way to the floor,\u201d is the only portion of plaintiff\u2019s evidence admitted against Nesbitt relating to the brakes on the truck. This admitted evidence, whether competent or incompetent, was for consideration in passing on Nesbitt\u2019s motion for nonsuit. Kientz v. Carlton, 245 N.C. 236, 246, 96 S.E. 2d 14, 21, and cases cited.\nNesbitt\u2019s testimony, quoted in our preliminary statement, as to what Brown had told him relating to Brown\u2019s arrest for driving with faulty brakes, is contradictory and unclear. However, contradictions and discrepancies in the evidence are to be resolved by the jury. 4 Strong, N. C. Index, Trial \u00a7 21.\nWhen the evidence is considered in the light most favorable to plaintiff, the inference may be drawn that the conversation, in which Brown told Nesbitt that he (Brown) had been charged with driving the truck with faulty brakes, occurred three days before June 18, 1966. Too, it may be inferred from the condition of the brakes after the truck struck plaintiff\u2019s building, and from the fact the truck left the highway and struck plaintiff\u2019s building, notwithstanding there is no evidence the driver (Brown) was under any disability, that the damage to plaintiff\u2019s building was proximately caused by the faulty condition of the brakes on the truck.\nAlthough a borderline case, the conclusion reached is that the evidence admitted against Nesbitt, when considered in the light most favorable to plaintiff, was sufficient to support a finding that plaintiff\u2019s damage was proximately caused by the negligence of Brown in operating the truck when he knew or should have known that the brakes thereon were faulty.\nWith reference to the second (agency) issue, the court, in earlier portions of the charge, stated that the burden was on plaintiff to satisfy the jury that Brown was the agent of Nesbitt at the time of the accident. However, the court\u2019s final instruction relating to the second issue was as follows: \u201cSo, when you come to the second issue, if the plaintiff has satisfied you by the greater weight of the evidence that at the time of the accident Brown was operating the vehicle in question with the knowledge, consent, and approval of the owner Nesbitt, then it would be your duty to answer it, \u2018Yes.\u2019 Defendant excepted to and assigns as error this (quoted) portion of the charge.\nBy virtue of G.S. 20-71.1, Nesbitt\u2019s testimony that he was the registered owner of the truck, made a prima facie case of agency sufficient to support, but not compel, a verdict against Nesbitt under the doctrine respondeat superior for damages proximately caused by the negligence of the operator thereof. Lynn v. Clark, 252 N.C. 289, 292, 113 S.E. 2d 427, 430, and cases cited.\nTo establish liability under the doctrine respondeat superior, plaintiff must allege and prove that the operator was the agent of the owner and that this relationship existed at the time and in respect of the very transaction out of which the injury arose. Jyachosky v. Wensil, 240 N.C. 217, 81 S.E. 2d 644; Whiteside v. McCarson, 250 N.C. 673, 110 S.E. 2d 295; Duckworth v. Metcalf, 268 N.C. 340, 150 S.E. 2d 485. As to the necessity of such pleading: Hartley v. Smith, 239 N.C. 170, 79 S.E. 2d 767; Parker v. Underwood, 239 N.C. 308, 79 S.E. 2d 765; Osborne v. Gilreath, 241 N.C. 685, 86 S.E. 2d 462. The court in substance charged the jury that Brown was operating the truck as agent of Nesbitt if he was operating it with the knowledge, consent and approval of Nesbitt. This instruction omitted entirely the essential element as to whether Brown was operating the truck as agent of Nesbitt and within the scope of such agency at the time and in respect of the very transaction under consideration.\nThe error must be considered prejudicial because under Nesbitt\u2019s testimony the truck had been delivered into the possession of Wooten, a prospective purchaser thereof; and, to the knowledge of Nesbitt, Brown had been driving the truck of Nesbitt under some arrangement between Brown and Wooten. The. determinative question involved in the second (agency) issue was whether at the time and on the occasion of plaintiff\u2019s damage Brown was operating the truck as agent of Wooten or as agent of Nesbitt.\nWe do not consider whether upon the evidence in the present record the court also erred by failing to give an instruction, related directly to the evidence, that it was the jury\u2019s duty to answer the agency issue, \u201cNo,\u201d if they found the facts to be as the evidence on behalf of Nesbitt tended to show. See Whiteside v. McCarson, supra, and Torres v. Smith, 269 N.C. 546, 153 S.E. 2d 129.\nFor error in the court\u2019s instruction relating to the second issue, and mindful of the dubious purport of certain of the evidence admitted against Nesbitt with reference to the first issue, this Court awards a new trial upon all issues arising on the pleadings as between plaintiff and Nesbitt.\nNew trial.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Robert E. Lock for plaintiff appellee.", "Joseph C. Olschner for defendant appellant Nesbitt." ], "corrections": "", "head_matter": "MRS. MURRELL (IDA) BROWN v. WALTER NESBITT and ROBERT LEE BROWN.\n(Filed 11 October, 1967.)\n1. Automobiles \u00a7 130\u2014\nIn order to hold the owner liable for injury resulting from the driver\u2019s negligence, it is required that plaintiff not only prove agency but also that the damage complained of was the result of the negligent operation by the agent.\n2. Trial \u00a7 21\u2014\nContradictions and discrepancies in the evidence are for the jury to resolve and do not warrant nonsuit.\n3. Automobiles \u00a7 68\u2014\nEvidence permitting the inference that some three days prior to the accident in suit the driver had knowledge that the brakes of the truck were defective, that on the day of the accident he drove the truck across an intersection into plaintiff's building, and that immediately after the accident the brake pedal could be depressed to the floorboard, held sufficient to be submitted to the jury on the issue of the driver\u2019s negligence.\n4. Automobiles \u00a7 105\u2014\nProof of the registration of a vehicle makes out a prima facie ease of agency in the registered owner sufficient to support, but not to compel, a verdict against him on the doctrine of respondeat superior.\n5. Automobiles \u00a7 106\u2014 Driver must be operating vehicle in course of his employment in order for owner to be liable.\nWhere there is evidence that the vehicle was registered in the name of defendant owner but also that the owner had surrendered possession to a prospective purchaser who had, in turn, given possession to the driver whose negligence caused the damage, an instruction on the question of respondeat superior to the effect that the driver was operating the vehicle as an agent of the owner if he was operating it with the knowledge, consent and approval of the owner is erroneous as being incomplete without a further instruction that it was also required that the driver was operating the truck as an agent of the owner and within the scope of such agency at the time of and in respect to the very transaction under consideration.\n6. Appeal and Error \u00a7 62\u2014\nEven though error relates to a single issue, the Supreme Court, in the exercise of its discretion, may grant a general new trial when it is apparent from the entire record that the ends of justice so require.\nAppeal by defendant Nesbitt from Mintz, J., June 1967 Session of Onslow.\nPlaintiff alleged that, on June 18, 1966, at approximately 9:10 p.m., defendant Brown, operating a Ford truck owned by and registered in the name of defendant Nesbitt, \u201cran through the intersection from State Road 1211 across State Road #1001 into the store building\u201d of plaintiff. She alleged her building and \u201cthe contents therein\u201d were damaged by the negligence of defendant Brown (referred to hereafter as Brown) in that (1) he operated the truck \u201cin a careless and reckless manner\u201d and (2) \u201cfailed to have adequate brakes in good working order sufficient to control said vehicle.\u201d She alleged Brown was operating the truck \u201cas the agent of and with the permission, knowledge, and consent of . . . Nes-bitt.\u201d She alleged that Nesbitt was negligent in that he permitted the truck to be operated by Brown when he knew, or by the exercise of reasonable care should have known, that the brakes were defective and in such condition \u201cas to be liable to fail at any time and cause serious damage to the property of others,\u201d and that such defective condition of the brakes, together with the negligent operation of the truck by Brown, caused damage to plaintiff\u2019s property.\nDefendants, in separate answers, denied the essential allegations of the complaint.\nEvidence was offered by plaintiff and by Nesbitt.\nEvidence offered by plaintiff tends to show: Plaintiff\u2019s frame building, fourteen by twenty-four feet, had been vacant since April 1966. Prior thereto, it had been rented at $25.00 per month. When the Highway Patrolman arrived, \u201csome pulpwood truck was sitting under the porch of a building where he ran into it.\u201d The Patrolman testified: \u201c(I)t had hit the corner of the building and struck the post and it had collapsed on top of the cab of the truck.\u201d There was testimony that the building \u201cwas nearly totally demolished,\u201d and that it could not be repaired and was torn down. There was also evidence as to the monetary loss on account of the damage to the building and to a drink box and showcase for candy.\nPlaintiff offered no evidence as to the course and movement of the truck before it struck plaintiff\u2019s said building. The following evidence was admitted against Brown but excluded as to Nesbitt, viz. .* The Patrolman testified that Brown told him, in a conversation at the scene of the mishap, that he was the driver of the truck and that \u201chis brakes failed and he couldn\u2019t stop,\u201d and that earlier in the day when he picked up the truck \u201che had had to pump the brakes at least once or twice.\u201d The Patrolman charged Brown with operating the truck with improper equipment (brakes) and Brown pleaded guilty to this charge.\nThe court admitted, over objection by defendant Nesbitt, the following testimony of the Patrolman: After the accident he tried the brakes on the truck and discovered that \u201c(t)he brake pedal was mashed all the way to the floor.\u201d On cross-examination by counsel for Nesbitt, the Patrolman testified that he had no knowledge of having seen the truck prior to this accident; that he had \u201cno personal knowledge of the condition of the brakes at the time of the accident\u201d; and that all he knew was what he found \u201csome time at the accident.\u201d\nThe evidence offered by Nesbitt tends to show: On June 18, 1966, Nesbitt was the registered owner of the 1964 blue Ford truck involved in the accident. Prior to June 18, 1966, the truck had been in Charlie Redding\u2019s garage for repairs. Redding repaired the brakes and muffler system and Nesbitt paid him for this work. At the direction of Nesbitt, Redding turned the truck over to Eddie Lee Wooten, a prospective purchaser, who \u201cwanted to try it out.\u201d Before doing so, Redding took the truck out, \u201croad tested it,\u201d and \u201cthe brakes were working properly.\u201d The truck was taken out of Red-ding\u2019s garage by Wooten \u201cover a week before the accident.\u201d Wooten had actual or constructive possession thereof from the time he obtained the truck from Redding until the accident on June 18, 1966. Nesbitt did not drive the truck or have possession thereof at any time after Wooten obtained possession from Redding. Brown was not an employee or agent of Nesbitt. Brown was not driving the truck pursuant to any authority or permission to do so from Nesbitt. Whatever authority or permission Brown had to drive the truck was pursuant to an arrangement between him and Wooten.\nNesbitt knew Brown and saw him driving the truck during the week preceding June 18, 1966. With reference to a conversation between Brown and Nesbitt, the record shows that, during the cross-examination of Nesbitt, the following occurred:\n\u201cQ. Did he (Brown) report to you that he had been charged three days before the 18th with faulty brakes? Objection by Me. OlschNEe (counsel for Nesbitt) and Me. Stbickland (counsel for defendant Brown).\n\u201cCouet: Members of the jury, the objection of the defendant Brown is sustained, the objection of the defendant Nesbitt is overruled. Do not consider this evidence as against Brown. (To the witness:) Answer the question.\n\u201cQ. Did the defendant Brown tell you or did you find out that three days before the 18th he had been charged with faulty brakes of this same vehicle?\n\u201cA. Yes, he tell (sic) me.\n\u201cQ. He did tell you that?\n\u201cA. Yes sir.\n\u201cMe. Olschnee: I don\u2019t believe he has answered the question, your Honor.\n\u201cCouet: The question was, \u2018Did he tell you three or four days before he had been arrested for driving your truck with faulty brakes?\u2019\n\u201cA. He did not.\u201d\nThe court submitted and the jury answered the following issues: \u201c1. Was the property of the plaintiff damaged as a result of the negligence of the defendant, Robert Lee Brown, as alleged in the complaint? Answeb: Yes. 2. Was the defendant, Robert Lee Brown, an agent of defendant, Walter Nesbitt, at the time of the.alleged damage? ANSWER: Yes. 3. What amount, if any, is plaintiff entitled to recover as a result of the damage sustained? ANSWER: 1200.00.\u201d\nJudgment for plaintiff, in accordance with the verdict, was entered against both defendants. Nesbitt excepted and appealed. Brown did not appeal.\nRobert E. Lock for plaintiff appellee.\nJoseph C. Olschner for defendant appellant Nesbitt." }, "file_name": "0532-01", "first_page_order": 566, "last_page_order": 572 }