{ "id": 8573719, "name": "D. I. ROBERTS v. WILLIAM N. AND KATE B. REYNOLDS MEMORIAL PARK also known as TANGLEWOOD PARK, and GRADY SHUMATE", "name_abbreviation": "Roberts v. William N.", "decision_date": "1972-04-12", "docket_number": "No. 69", "first_page": "48", "last_page": "61", "citations": [ { "type": "official", "cite": "281 N.C. 48" } ], "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": "12 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547415 ], "opinion_index": -1, "case_paths": [ "/nc-app/12/0069-01" ] }, { "cite": "136 S.E. 2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "262 N.C. 16", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565137 ], "opinion_index": 0, "case_paths": [ "/nc/262/0016-01" ] }, { "cite": "264 F. 2d 821", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1983403 ], "opinion_index": 0, "case_paths": [ "/f2d/264/0821-01" ] }, { "cite": "227 F. 2d 407", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 61804, 3764101 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/f2d/227/0407-01" ] }, { "cite": "118 F. 2d 631", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 472922 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/f2d/118/0631-01" ] }, { "cite": "304 F. 2d 786", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 6814000 ], "opinion_index": 0, "case_paths": [ "/f2d/304/0786-01" ] }, { "cite": "176 S.E. 2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "277 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561932 ], "opinion_index": 0, "case_paths": [ "/nc/277/0094-01" ] }, { "cite": "114 S.E. 2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624271 ], "opinion_index": 0, "case_paths": [ "/nc/252/0527-01" ] }, { "cite": "86 S.E. 2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609713 ], "opinion_index": 0, "case_paths": [ "/nc/242/0093-01" ] }, { "cite": "146 S.E. 2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561271 ], "opinion_index": 0, "case_paths": [ "/nc/266/0496-01" ] }, { "cite": "180 S.E. 2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560580 ], "opinion_index": 0, "case_paths": [ "/nc/278/0390-01" ] }, { "cite": "179 S.E. 2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559876 ], "opinion_index": 0, "case_paths": [ "/nc/278/0153-01" ] }, { "cite": "73 S.E. 2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626541 ], "opinion_index": 0, "case_paths": [ "/nc/236/0503-01" ] }, { "cite": "176 S.E. 2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "277 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561932 ], "opinion_index": 1, "case_paths": [ "/nc/277/0094-01" ] } ], "analysis": { "cardinality": 1052, "char_count": 29621, "ocr_confidence": 0.504, "pagerank": { "raw": 1.6054262487516272e-06, "percentile": 0.9926837433379321 }, "sha256": "e722d9230752d684c1e5483e9e52a06e24014c3dfa0cd97fdaa61a3e95618a23", "simhash": "1:27cda1acf2515e42", "word_count": 5160 }, "last_updated": "2023-07-14T21:53:41.611741+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Justice Bobbitt joins in this concurring opinion." ], "parties": [ "D. I. ROBERTS v. WILLIAM N. AND KATE B. REYNOLDS MEMORIAL PARK also known as TANGLEWOOD PARK, and GRADY SHUMATE" ], "opinions": [ { "text": "BRANCH, Justice.\nThe sole question presented by this appeal is whether the trial judge erred in granting defendants\u2019 motion for a directed verdict.\nIt is the duty of a bailor for hire to see that the vehicle bailed is in good condition. While he is not an insurer, he is liable for injury to the bailee or a third person for injuries proximately caused by a defect in the vehicle of which he had knowledge or which he could have discovered by reasonable care and inspection. Hudson v. Drive It Yourself, Inc., 236 N.C. 503, 73 S.E. 2d 4.\nA motion for a directed verdict presents the question of whether, as a matter of law, the evidence offered by plaintiff, when considered in the light most favorable to the plaintiff, is sufficient to be submitted to the jury. Kelly v. Harvester Co., 278 N.C. 153, 179 S.E. 2d 396. The court may direct a verdict against the party having the burden of proof when there is no evidence in his favor. Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297.\nWe deem it unnecessary to discuss plaintiff\u2019s allegation that defendants left rocks or other objects dangerous to golf carts on the golf course, since he offered no direct evidence which would support an inference that any objects of a dangerous nature were present on the golf course.\nPlaintiff contends that his injury was caused by defective brakes on the golf cart and that defendants knew, or by the exercise of reasonable care should have known of the defect. In this connection plaintiff\u2019s evidence shows that the brakes on the golf cart could fail in two ways, viz: (1) sudden failure caused by the snapping of the brake cable, and (2) gradual failure of the brakes caused by wear on the linings of the brake bands.\nPlaintiff\u2019s expert witness testified concerning sudden failure of the brakes as follows: \u201cIn order to sever this cable or cause this cable to break it is going to take a lot. There would be practically no way to break it, in normal driving around, suddenly, unless the cable, I\u2019d say, is four to five years old and worn a lot, you can\u2019t break it, not with a foot.\u201d Plaintiff\u2019s evidence showed that the golf cart in which plaintiff was injured was not more than one year old.\nAs to the gradual failure of the brakes, plaintiff\u2019s evidence showed that a visual inspection would reveal the wear on the linings of the brake bands, and that an annual inspection would be reasonable.\nPlaintiff\u2019s evidence failed to show that the cable snapped or that the linings on the brake bands were worn.\nWe quote the following excerpts from plaintiff\u2019s testimony:\nQ. What, if anything, did Mr. Shumate say to you?\nMr. Minor: Objection.\nThe Court: Well, I don\u2019t know what he is going to say. I guess at this point I will admit it as against Shumate and not the others. I don\u2019t know what he is going to say. Sustained as to, well, as to the corporate defendant, I reckon I will say.\n. . . Then the park manager came up \u2014 I assume that he was the park manager; I never did see the gentleman because of the way that I was lying \u2014 and Mr. Shumate told him\u2014\nMr. Minor: Well, objection now, if the Court please.\nThe Court: Well\u2014\nMr. Minor : He is talking about someone he doesn\u2019t know about.\nThe Court: Sustained again as to the corporate defendant, Tanglewood Park, Go ahead.\n. . . Later Mr. Shumate came back to me and he says, \u201cIf you are familiar with these carts, you should know that they have no brakes on them going backwards.\u201d I was still lying on the ground at that time, sir.\nMr. Powell: I submit that statement is competent against the corporate defendant as well as Mr. Shumate.\nThe Court: Well, of course, he has got an exception to all this. I will let that in.\nPlaintiff strongly contends that this statement was sufficient evidence of defendants\u2019 negligence to carry the case to the jury.\nPlaintiff failed to allege that defendants rented the golf cart knowing that it had no brakes when going backward. We must therefore decide the effect of this variance in the allegations and proof.\nPrior to the adoption of the new Rules of Civil Procedure it was well recognized that a plaintiff\u2019s recovery had to be based on allegations in his complaint, and that when there was a material variance between allegations and proof, nonsuit was proper. Conger v. Ins. Co., 266 N.C. 496, 146 S.E. 2d 462; Andrews v. Bruton, 242 N.C. 93, 86 S.E. 2d 786. No issues were submitted to the jury which were not raised by the pleadings and supported by competent evidence. Bowling v. Bowling, 252 N.C. 527, 114 S.E. 2d 228. A motion for nonsuit is no longer proper in a civil action. In an action tried by the court without a jury, a defendant may move for a dismissal on the ground that upon the facts and the law plaintiff has shown no right to relief. Ch. 1A-1, Rule 41(b). When a case is tried by a jury, as here, a defendant may move for a directed verdict to test the sufficiency of the evidence to go to the jury. Ch. 1A-1, Rule 50(a). See Kelly v. Harvester Co., supra.\nBy enactment of G.S. 1A-1, the legislature adopted the \u201cnotice theory of pleading.\u201d Under \u201cnotice pleading\u201d a statement of claim is adequate if it gives sufficient notice of the claim asserted \u201cto enable the adverse party to answer and prepare for trial, to allow for the application of the doctrine of res judicata, and to show the type of case brought. Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161.\nThe North Carolina pleadings and forms differ from the federal pleadings and forms in that federal Forms 9 and 10, complaints for negligence, do not require specific allegations of acts of negligence. Under Rule 84 of G.S. 1A-1, Forms 3 and 4 do require such specific allegations. Sizemore, General Scope and Philosophy of the New Rules, 5 Wake Forest Intramural Law Review 1.\nUnder the new Rules the trial must proceed within the issues raised by the broad pleadings unless the pleadings are amended. The new Rules achieve their purpose of insuring a speedy trial on the merits of a case by providing for and encouraging liberal amendments to conform pleadings and evidence under Rule 15(a), by pretrial order under Rule 16, during and after reception of evidence under Rule 15(b), and after entry of judgment under Rules 15(b), 59 and 60. Such amendments are made upon motion and with leave of court, by express consent, and by implied consent.\nIn instant case, since plaintiff failed to amend by leave of court or pretrial order and there was no amendment by express consent, we need only consider whether the pleadings were amended by implied consent.\nThe doctrine of implied consent is based upon the provisions of Rule 15(b), which we quote:\n(b) Amendments to conform to the evidence. \u2014 When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, either before or after judgment, but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues raised by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.\nDean Dickson Phillips of the University of North Carolina Law School, in McIntosh, N. C. Practice and Procedure, Vol. 1, Supp. 1970, \u00a7 970.80, considered Rule 15(b) as it affects conforming amendments to pleadings after offer of evidence. He there, in part, stated:\nThe most significant feature of Rule 15\u2019s approach to amendments to conform pleadings to proof already adduced is its abandonment, both in name and practice, of the highly technical code doctrine of \u201cvariance.\u201d Instead, Rule 15 (b) approaches the problem from a completely functional standpoint. Two situations involving proof outside the scope of the pleadings are posited. In the first, no objection is made upon the introduction of evidence that it is outside the pleadings. In this situation, the Rule provides that \u201cwhen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.\u201d This is the doctrine of \u201clitigation by consent When this occurs, an actual conforming amendment may be made on motion either before or after judgment, but it is not essential \u2014 the pleadings are by the Ride deemed amended. A party who fails to object to evidence is of course initially presumed to have given \u201cimplied consent\u201d by silence. He can avoid the effect only by satisfying the court that under the circumstances, his consent to having certain issues considered by the trier of fact should not be implied from his failure to object to particular evidence.\u201d (Emphasis ours.)\nIn the case of Securities and Exchange Commission v. Rapp, (2d Cir., 1962), 304 F. 2d 786, the United States Court of Appeals considered their similar Rule 15(b) and, inter alia, stated:\nIn the district court Judge Murphy gave judgment for defendants dismissing the complaint. The principal ground of decision appears to have been that the pleadings did not conform to the proof; he denied a motion, made at the close of argument, to amend the pleadings so to conform. This ruling was clearly in error. F. R. 15 (b) provides that \u201c[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.\u201d This is mandatory, not merely permissive. The rule then provides for free or delayed amendment, but states that \u201cfailure so to amend does not affect the result of the trial of these issues.\u201d Indeed, formal amendment is needed only when evidence is objected to at trial as not within the scope of the pleadings. . . . (Emphasis ours.)\nAccord: Tillman v. National City Bank of New York, (2d Cir., 1941), 118 F. 2d 631; Joyce v. L. P. Stewart, Inc., (D.C. Cir., 1955), 227 F. 2d 407; Gallon v. Lloyd-Thomas Co., (8th Cir., 1959), 264 F. 2d 821. See also 3 Moore\u2019s Federal Practice, 2d Ed., \u00a7 15.13(2), and cases there cited.\nThe thrust of this rule seems to destroy the former strict code doctrine of variance by allowing issues to be raised by liberal amendments to pleadings and, in some cases, by the evidence. Under 15(b) the rule of \u201clitigation by consent\u201d is applied when no objection is made on the specific ground that the evidence offered is not within the issues raised by the pleadings. In such case the statutory rule, in effect, amends the pleadings to conform to the evidence and allows any issue raised by the evidence to go to the jury. Even when the evidence is objected to on the ground that it is not within the issues raised by the pleadings, the court will freely allow amendments to present the merits of the case when the objecting party fails to satisfy the court that he would be prejudiced in the trial on its merits. The far-reaching effect of this statutory rule is emphasized by the burden placed on the objecting party to specify the grounds of objection and to satisfy the court that he will be prejudiced by the admission of the evidence or by litigation of the issues raised by the evidence. The objecting party must meet these requirements in order to avoid \u201clitigation by consent\u201d or allowance of motion to amend.\nFurther, it is apparent that the effect of this rule is to allow amendment by implied consent to change the legal theory of the cause of action so long as the opposing party has not been prejudiced in presenting his case, i.e., where he had a fair opportunity to defend his case. In this connection, we feel compelled to note that the better practice dictates that even where pleadings are deemed amended under the theory of \u201clitigation by consent,\u201d the party receiving the benefit of the rule should move for leave of court to amend, so that the pleadings will actually reflect the theory of recovery.\nIn instant case defendants\u2019 counsel did not object to Shu-mate\u2019s alleged statement on the ground that it was outside the pleadings. The record reveals- that the legal effect of the evidence was argued by counsel for defendants without any mention of the broadened issue raised by the evidence or without any contention that defendants were unprepared to litigate the broadened issue because of unfair surprise. Defendants offered no evidence tending to satisfy the court that they would be unduly prejudiced by the admission of the alleged statement and the issue thereby raised.\nThus the statement allegedly made by defendant Shumate, in effect amended the pleadings to conform to the evidence and broadened the issue of negligence so that the jury could consider whether defendants breached a duty owed to plaintiff by furnishing a golf cart which they knew had no brakes on it when going backwards.\nFurther, plaintiff\u2019s allegations that defendants failed to warn of defective brakes and that defendants failed to instruct as to the proper use of the cart on steep terrain and the proper use of the brakes on the golf cart, at least negated any inference of unfair surprise as to the evidence of complete absence of brakes when the cart was rolling backward.\nIf it be a breach of duty for a bailor for hire to fail to warn of a known defect in the brakes of the bailed vehicle, it certainly follows that it would be a breach of duty for him to fail to warn that the bailed vehicle had \u201cno brakes on them going backwards.\u201d\nPlaintiff\u2019s complaint alleged:\n4. That the plaintiff is informed and believes that the defendant, Tanglewood Park and the defendant, Grady Shumate, who is pro, agent, servant and employee of Tanglewood Park, share in the rental income of the use of said golf carts. That the plaintiff is further informed that the said golf carts are owned and maintained by Tanglewood Park under the direct supervision of the defendant, Grady Shumate, its agent, servant and employee.\nThe answer of defendants to Paragraph 4 is as follows:\nDenied, except it is admitted that defendant Park and defendant Shumate share in rental fees on golf carts; that said golf carts are owned and maintained by defendant Park and that the maintenance of said carts is under the supervision of defendant Shumate; and that on May 3, 1967, and for some time prior to that date, defendant Shumate was an employee of the defendant Park and was a professional golfer.\nThe allegations in the complaint and the admissions in the answer established the relationship of principal and agent between defendant Shumate and the corporate defendant at the times plaintiff complained of. A principal is chargeable with and bound by the knowledge of or notice to his agent, received while the agent is acting as such within the scope of his authority and in reference to which his authority extends. Norburn v. Mackie, 262 N.C. 16, 136 S.E. 2d 279. Thus the corporate defendant was charged with and bound by its agent\u2019s knowledge that the golf cart had no brakes when rolling backward.\nWe conclude that the evidence offered by plaintiff, when considered in the light most favorable to the plaintiff, was sufficient to have a jury pass on it.\nThe decision of the Court of Appeals is\nReversed.", "type": "majority", "author": "BRANCH, Justice." }, { "text": "Justice Sharp\nconcurring in result:\nI am in accord with the majority\u2019s decision that plaintiff\u2019s evidence entitled him to go to the jury on the issue of defendants\u2019 negligence and that the trial judge erred in directing a verdict against him. Further, I do not disagree with the majority\u2019s interpretation of Rule 15 (b). My thesis is that Rule 15 (b) is irrelevant to decision in this case. In my view, under Rule 8(a) (1) and Rule 84, Forms 3 and 4, plaintiff\u2019s allegations are sufficient to permit the introduction of testimony that the golf cart had no brake to check its backward movement. Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161.\nIn addition to the allegations (quoted verbatim at the beginning of the majority opinion) that defendants furnished plaintiff a golf cart which they knew, or should have known, had defective brakes, the complaint contains the following: Plaintiff and his partner \u201ctraveled up a hill and approached the crest of a hill and allowed the said golf cart to roll to a stop . . . and his partner began to get his golf clubs when the cart began rolling backward with the plaintiff applying the brakes, all to no effect. That the cart continued to gain speed rolling backward and ran over a rock in the fairway and sheered off a front wheel, causing the cart to overturn. ...\u201d\nTestimony, admitted without any objection, tended to show defendant Shumate told plaintiff that defendants\u2019 golf carts had \u201cno brakes on them going backwards.\u201d\nAn allegation that the brakes were defective is surely broad enough to support evidence that they worked in one direction only. Brakes which do not stop both forward and backward motions are defective. Furthermore, plaintiff\u2019s additional allegation that when the cart began rolling backward he applied the brakes to no effect is clearly sufficient to support the evidence of Shumate\u2019s declaration. Thus, there is no variance between allegation and proof. In short, this is not a case in which it is necessary to resort to Rule 15(b) to insure the decision of a case on its merits. Patently, a complaint which is already sufficient has no need of amendment either by the express permission of the court or by operation of law.\nIt is also noted that defendants moved for a directed verdict \u201con the grounds that the evidence by its greater weight failed to prove any negligence and would leave this in the field of speculation and conjecture,\u201d and that the court allowed the motion on the ground that the evidence of negligence was insufficient to support a verdict against defendants on that issue. The trial court\u2019s ruling was not based upon a variance between allegation and proof.\nChief Justice Bobbitt joins in this concurring opinion.", "type": "concurrence", "author": "Justice Sharp" } ], "attorneys": [ "Roberts, Frye & Booth, by Leslie G. Frye; Powell & Powell, by Harrell Powell, Jr., for paintiff appellant.", "Deal, Hutchins and Minor, by John M. Minor and William K. Davis for defendant appellees." ], "corrections": "", "head_matter": "D. I. ROBERTS v. WILLIAM N. AND KATE B. REYNOLDS MEMORIAL PARK also known as TANGLEWOOD PARK, and GRADY SHUMATE\nNo. 69\n(Filed 12 April 1972)\n1. Bailment \u00a7 6\u2014 bailor of vehicle for hire \u2014 liability for injury to bailee\nIt is the duty of a bailor for hire of a vehicle to see that the vehicle is in good condition, and while he is not an insurer, he is liable to the bailee or a -third person for injuries proximately caused by a defect in the vhicle of which he has knowledge or which he could have discovered by reasonable care and inspection.\n2. Rules of Civil Procedure \u00a7 50\u2014 motion for directed verdict\nA motion for a directed verdict presents the question of whether, as a matter of law, the evidence offered by the plaintiff, when considered in the light most favorable to the plaintiff, is sufficient to be submitted to the jury.\n3. Rules of Civil Procedure \u00a7 50\u2014 directed verdict against party having burden of proof\nThe court may direct a verdict against the party having the burden of proof when there is no evidence in his favor.\n4. Pleadings \u00a7 36; Rules of Civil Procedure \u00a7 50\u2014 variance between pleadings and proof\nPrior to the adoption of the new Rules of Civil Procedure, a plaintiff\u2019s recovery had to be based on allegations in his complaint, and nonsuit was proper when there was a material variance between allegations and proof.\n5. Rules of Civil Procedure \u00a7 8\u2014 sufficiency of complaint\nUnder the \u201cnotice theory of pleading\u201d of the new Rules of Civil Procedure, a statement of claim is adequate if it gives sufficient notice of the claim asserted to enable the adverse party to answer and prepare for trial, to allow for the application of the doctrine of res judicata, and to show the type of ease brought.\n6. Rules of Civil Procedure \u00a7 84\u2014 complaint \u2014 specific acts of negligence\nWhile federal Forms 9 and 10 do not require complaints for negligence to contain specific allegations of acts of negligence, such specific allegations are required by G.S. 1A-1, Rule 84, Forms 3 and 4.\n7. Rules of Civil Procedure \u00a7 15\u2014 issues \u2014 amendment of pleadings\nUnder the new Rules of Civil Procedure, the trial must proceed within the issues raised by the pleadings unless the pleadings are amended.\n8. Rules of Civil Procedure \u00a7 15\u2014 amendments to pleadings\nAmendments to pleadings are made upon motion on leave of court, by express consent, and by implied consent.\n9. Rules of Civil Procedure \u00a7 15\u2014 evidence outside the pleadings \u2014 failure to object \u2014 amendment of pleadings by implied consent\nUnder G.S. 1A-1, Rule 15(b), the pleadings are deemed amended to conform to evidence introduced outside the scope of the pleadings when the evidence is not objected to on the ground that it is not within the issues raised by the pleadings; even when the evidence is objected to on that ground, the court will freely allow amendments to present the merits of the case when the objecting party fails to satisfy the court that he would be prejudiced in the trial on its merits.\n10. Rules of Civil Procedure \u00a7 15\u2014 pleadings \u2014 amendment by implied consent\nAmendment by implied consent may change the legal theory of the cause of action so long as the opposing party has not been prejudiced in presenting his case; i.e., where he had a fair opportunity to defend his case.\n11. Bailment \u00a7 6; Pleadings \u00a7 33; Rules of Civil Procedure \u00a7 15\u2014 evidence outside pleadings \u2014 failure to object \u2014 amendment by implied consent\nIn an action to recover for injuries sustained when a golf cart plaintiff had rented from defendants rolled backwards down a hill and overturned while being operated by plaintiff, wherein plaintiff alleged that defendants were negligent in failing to warn him of defective brakes on the golf cart, the pleadings were amended by implied consent to conform to the evidence and broaden the issue of negligence so that the jury could consider whether defendants breached a duty to plaintiff by furnishing a golf cart which they knew had no brakes on it when going backwards, where defendants failed to object to plaintiff\u2019s testimony outside the pleadings that the individual defendant told him at the accident scene that defendants\u2019 golf carts had no brakes on them while going backwards.\n12. Bailment \u00a7 3\u2014 bailor for hire of vehicle \u2014 warnings to bailee\nIt would be a breach of duty for a bailor for hire of vehicles to fail to warn that the bailed vehicles had \u201cno brakes on them going backwards.\u201d\n13. Principal and Agent \u00a7 8\u2014 knowledge of agent \u2014 knowledge of principal\nA principal is charged with and bound by the knowledge of or notice to his agent received while the agent is acting as such within the scope of his authority and in reference to which his authority extends.\nJustice Sharp concurring in result.\nChief Justice Bobbitt joins in concurring opinion.\nAppeal by plaintiff from decision of the Court of Appeals (12 N.C. App. 69) affirming the judgment of Armstrong, J., at 18 November 1970 Session of Forsyth Superior Court. This case was docketed and argued as No. 107 at the Fall Term 1971.\nPlaintiff sued for damages for injuries sustained while operating a golf cart which had been rented from defendants.\nPlaintiff alleged that defendant Grady Shumate, the resident golf professional, was the agent, servant and employee of the corporate defendant and that the defendants were negligent in that:\nA. That the defendants failed to properly maintain and inspect the said golf carts rented to the plaintiff;\nB. That although the defendants knew or should have known that the brakes on the said golf cart were defective, they negligently permitted the same to remain in operation and permitted the same to be rented to the plaintiff.\nC. The defendants permitted the golf cart to be rented to and operated by the plaintiff without making proper inspections and proper maintenance of said brakes on said cart.\nD. That the defendants left protruding rocks and objects within the fairway, knowing that the same would be used by the plaintiff and others using golf carts and knowing that the same was dangerous to the operation of said golf carts.\nE. That the defendants failed and neglected to warn and instruct the plaintiff as to the proper use of said golf cart on steeped terrains and to the proper use of brakes on the golf cart.\nF. That the defendants failed and neglected to warn the plaintiff of the defective brakes on said golf cart.\nG. That the defendants failed and neglected to detect a defect in said golf cart when said defects could be readily detected had they made an inspection of the same.\nPlaintiff\u2019s testimony, in substance, tends to show that on 3 May 1967, around 10:00 o\u2019clock a.m., he and Mr. David Copen (Copen) arrived at the Tanglewood Park golf course to play golf. Copen rented a Pargo golf cart from defendants and plaintiff drove the cart. While driving the cart to the first green, he noticed that the brakes seemed to \u201cfade.\u201d They did not respond in the same manner as the power brakes on his automobile. He considered returning the cart, but decided not to because he attributed the difference in response to the nature of the vehicle rather than a defect in the braking system. The physical layout of the first nine holes played by plaintiff and Copen did not require a significant use of the brakes. On that portion of the golf course plaintiff usually coasted up to the ball and let the cart stop itself. When the cart stopped he would lock the brakes by depressing the brake pedal. He noticed no defect or difficulty in the brakes while playing the first nine holes.\nThe 10th hole, which plaintiff and Copen partially played, was in a new section of the golf course. Their approach to the green traversed a steep hill. Copen\u2019s second shot landed just below the crest of the hill and plaintiff drove up the incline and stopped near the ball by easing up on the throttle. The cart immediately began to roll backwards down the hill. Plaintiff mashed the brake pedal as hard as he could, but the speed of the cart increased to approximately 25 or 30 miles per hour. The cart struck a rock which sheared the front wheel assembly from the body of the cart. The cart overturned and threw both occupants onto the ground. It either ran over or fell on plaintiff, thereby causing him to suffer broken ribs and painful bruises. Plaintiff momentarily lost consciousness, and when he regained consciousness he noted that defendant Shumate and several other persons had arrived to offer aid. At that time Shumate made certain statements, which will be discussed later.\nOn cross-examination plaintiff testified that he had played the Tanglewood course approximately a dozen times prior to the date of the accident, and that he had operated a golf cart on an average of twelve times a year for the previous five years. Plaintiff did not remember seeing operating instructions printed on the dashboard of the cart.\nDavid Copen\u2019s testimony substantially corroborated plaintiff\u2019s testimony. His direct testimony differed in that he described plaintiff\u2019s attempts to stop the backward motion of the golf cart as a \u201cpumping on the brakes.\u201d He also stated that he saw no operating instructions on the dashboard of the cart. Neither plaintiff nor Copen denied that the instructions were printed on the dashboard of the cart.\nMr. Howard Hargett, a research and design engineer for the manufacturer of the Pargo Golf carts, testified as an expert witness for plaintiff. He described the braking system on a Pargo golf cart as being comprised of an external, lined band wrapped around a brake drum. The brake system is mechanically operated by a 3/16 inch aircraft cable connecting the band to the brake pedal. Pressure on the pedal wraps the band around the brake drum, causing the cart to stop. He stated that the brakes on these carts are just as effective whether the cart goes backwards or forward. He testified that there are two ways the brakes might fail. A snapping of the cable would result in a sudden failure of the brakes. This snapping would occur following excessive wear such as would result from four or five years\u2019 use. A reasonable inspection of the cable would reveal such wear. The other cause of brake failure would be wear on the linings of the brake bands. Such wear would result only from many hours of use, and a visual inspection would reveal such wear. An annual visual inspection of the brake bands for lining wear would be reasonable. He identified the cart used in the illustrative evidence as being a \u201967 or \u201968 model. He further testified that each \u201967 or \u201968 Pargo golf cart left the factory with a decal stamped on the dashboard directly in front of the driver\u2019s seat. This decal set forth operating instructions for the cart.\nDr. Albert P. Glod testified as to plaintiff\u2019s injuries.\nAt the close of plaintiff\u2019s evidence the trial judge allowed defendants\u2019 motion for a directed verdict on the ground that plaintiff had failed to show facts on the issue of negligence which would support a verdict against defendants. The Court of Appeals affirmed this judgment, with Judge Hedrick dissenting. This case is before this Court pursuant to G.S. 7A-30(2).\nRoberts, Frye & Booth, by Leslie G. Frye; Powell & Powell, by Harrell Powell, Jr., for paintiff appellant.\nDeal, Hutchins and Minor, by John M. Minor and William K. Davis for defendant appellees." }, "file_name": "0048-01", "first_page_order": 76, "last_page_order": 89 }