{ "id": 8569878, "name": "NATIONWIDE MUTUAL INSURANCE COMPANY v. ANDREW CURRIE CHANTOS", "name_abbreviation": "Nationwide Mutual Insurance v. Chantos", "decision_date": "1979-10-03", "docket_number": "No. 7", "first_page": "246", "last_page": "254", "citations": [ { "type": "official", "cite": "298 N.C. 246" } ], "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": "238 S.E. 2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": -1 }, { "cite": "293 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565135 ], "year": 1977, "opinion_index": -1, "case_paths": [ "/nc/293/0431-01" ] }, { "cite": "215 S.E. 2d 624", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": -1 }, { "cite": "287 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563337, 8563371, 8563406, 8563253, 8563319 ], "year": 1975, "opinion_index": -1, "case_paths": [ "/nc/287/0465-03", "/nc/287/0465-04", "/nc/287/0465-05", "/nc/287/0465-01", "/nc/287/0465-02" ] }, { "cite": "214 S.E. 2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": -1 }, { "cite": "25 N.C. App. 482", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554958 ], "year": 1975, "opinion_index": -1, "case_paths": [ "/nc-app/25/0482-01" ] }, { "cite": "203 S.E. 2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": -1 }, { "cite": "21 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554653 ], "year": 1974, "opinion_index": -1, "case_paths": [ "/nc-app/21/0129-01" ] }, { "cite": "287 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "pin_cites": [ { "page": "741" } ], "opinion_index": 0 }, { "cite": "198 S.E. 2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "19 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552347 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/19/0255-01" ] }, { "cite": "148 S.E. 2d 846", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 745", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560654 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0745-01" ] }, { "cite": "158 S.E. 2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573437 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0473-01" ] }, { "cite": "158 S.E. 2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572936 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0352-01" ] }, { "cite": "152 S.E. 2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 1 }, { "cite": "269 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562017 ], "year": 1967, "opinion_index": 1, "case_paths": [ "/nc/269/0120-01" ] }, { "cite": "154 S.E. 2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 1 }, { "cite": "270 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567059 ], "year": 1967, "opinion_index": 1, "case_paths": [ "/nc/270/0263-01" ] }, { "cite": "194 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 1 }, { "cite": "282 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568004 ], "year": 1973, "opinion_index": 1, "case_paths": [ "/nc/282/0610-01" ] }, { "cite": "238 S.E. 2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 1 }, { "cite": "293 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565135 ], "weight": 2, "year": 1977, "opinion_index": 1, "case_paths": [ "/nc/293/0431-01" ] } ], "analysis": { "cardinality": 788, "char_count": 18842, "ocr_confidence": 0.806, "pagerank": { "raw": 5.531831670962709e-07, "percentile": 0.9467416826231954 }, "sha256": "f30224a96c9dcbb012648c03e18856ccc73d154015c36046cf75508ce8de6427", "simhash": "1:af483020778e0bf1", "word_count": 3171 }, "last_updated": "2023-07-14T19:32:45.067536+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice BROCK did not participate in the consideration or decision of this case." ], "parties": [ "NATIONWIDE MUTUAL INSURANCE COMPANY v. ANDREW CURRIE CHANTOS" ], "opinions": [ { "text": "BRITT, Justice.\nPlaintiff instituted this action seeking reimbursement from defendant of the sum of $9,581.25 which plaintiff had paid to Charles E. McDonald (McDonald) in settlement for personal injuries and property damage sustained by McDonald in a collision with an automobile insured by a policy of insurance issued by plaintiff to Mr. and Mrs. David Earl Williams. Plaintiff\u2019s allegations are summarized as follows:\nOn 30 January 1971 Mrs. Williams allowed her minor son David to use her 1965 Mustang automobile which was insured by the policy referred to above. David, in turn, gave defendant, who was then 16 years old, permission to use the car. While in lawful possession of the Williams car, defendant negligently operated the same and caused a collision with an automobile operated by McDonald. Defendant\u2019s negligence was the proximate cause of serious personal injuries and substantial property damage suffered by McDonald. Plaintiff thereafter notified defendant that it was reserving all rights and defenses under the provisions of the Williams policy, but, nonetheless, under its reservation of rights and at the request of defendant, proceeded in good faith to settle the McDonald claim against defendant for the sum of $9,581.25. As a result of this settlement, plaintiff obtained a release which forever discharged defendant from any further liability to McDonald. Defendant was in lawful possession of the insured automobile. Therefore, plaintiff was required by the terms of G.S. 20-279.21(b) to extend coverage to defendant. Plaintiff is entitled to reimbursement from defendant pursuant to the provisions of G.S. 20-279.21(h) and the policy.\nIn his answer, the defendant admitted that while he was in lawful possession of the insured vehicle, he was involved in an accident with McDonald, and that McDonald suffered personal injuries and property damage in the collision. He further alleged that plaintiff was obligated to extend protection to him. He denied that the collision was caused by his negligence and that he was liable to plaintiff in any amount.\nPlaintiff\u2019s evidence pertinent to this appeal tended to show: that the collision occurred during daylight hours on North Boulevard in the City of Raleigh at or near the bridge which carries boulevard traffic over Peace Street; that it was raining at the time; that North Boulevard at that point had three lanes for southbound traffic and three lanes for northbound traffic; that McDonald was traveling south on the inside lane; that defendant was traveling north; that the Mustang defendant was driving left the northbound lanes, went across a concrete median eight inches high into the southbound lanes and hit McDonald\u2019s car head on; and that the tires on the Mustang were slick.\nEvidence favorable to defendant tended to show: Shortly before the collision, he drove onto the parking lot of a small shopping center located on the east side of North Boulevard and a short distance south of Peace Street. It was raining. Before reentering the boulevard, defendant came to a complete stop at the north entrance of the shopping center parking lot. He then drove onto the boulevard, proceeding north. As he entered the bridge at about 25 m.p.h., the car went out of control into a spin, crossed the median into the southbound lane and collided with the McDonald car. A new coat of asphalt had been recently applied on the bridge. At the time defendant entered the bridge, it was covered with water. The speed limit at said point was 45 m.p.h.\nPrior to trial defendant stipulated that on the date in question, while driving the Mustang north on Downtown Boulevard during a rainstorm, he left the northbound lane, crossed over into the southbound lanes and collided with McDonald\u2019s car which was traveling south.\nFor further elaboration on the evidence and the contentions of the parties, see the opinions of this court and the Court of Appeals cited above. While numerous questions were addressed in the prior appeals, the questions pertinent to this appeal are very limited and only they are discussed here.\nIn the first two assignments of error brought forward and discussed in its brief, plaintiff contends the trial court erred (1) in refusing to strike the opinion testimony of defendant relative to the speed of the automobile he was driving, and (2) in denying plaintiff\u2019s motion for directed verdict on the issues. We find no merit in these assignments, and, since they are closely related, we will discuss them together.\nOn direct examination defendant testified that the bridge was some 75 to 100 yards north of the shopping center exit where he entered the boulevard from a completely stopped position; that he gradually increased his speed and moved over into the left northbound lane; that when he entered upon the bridge, he was traveling about 25 m.p.h.; and that he began to skid or spin immediately after going upon the bridge.\nDuring a vigorous cross-examination, defendant steadfastly reaffirmed his statement that he was driving approximately 25 m.p.h. \u201430 m.p.h. at the most. He further stated that while he was not sure whether he observed the speedometer, he based his opinion as to speed on the cautiousness with which he entered the boulevard, the \u201cclimatic situation\u201d, the fact that he did not accelerate very fast, the short distance he had traveled, and his impression that \u201cthe terrain around me was not flashing by\u201d. He also stated that while he knew his friend David Williams had \u201cburned the rubber\u201d on the Mustang, he did not know that the tires were slick.\nIt is well settled in North Carolina that a person of ordinary intelligence and experience is competent to state his opinion as to the speed of a vehicle when he has had a reasonable opportunity to observe the vehicle and judge its speed. 2 Strong\u2019s N.C. Index 3d, Automobiles \u00a7 46 and cases cited therein. A review of defendant\u2019s testimony clearly discloses that he was a person of at least ordinary intelligence and experience and that he had a reasonable opportunity to judge the speed of the vehicle he was operating. That being true, the evidence was competent, and its credibility was for the jury to decide.\nWith respect to its motion for directed verdict, plaintiff argues that defendant\u2019s stipulation that he drove across the median and collided with McDonald head on establishes that defendant was negligent per se. Plaintiff further argues that defendant\u2019s testimony that he was traveling only 25 m.p.h. was of no probative value in light of the physical evidence presented and should, therefore, be disregarded.\nWe agree with plaintiff\u2019s assertion that a violation of G.S. 20-146 (requiring a vehicle operator to drive on the right side of the highway, with certain exceptions) is negligence per se. Reeves v. Hill, 272 N.C. 352, 158 S.E. 2d 529 (1968); Lassiter v. Williams, 272 N.C. 473, 158 S.E. 2d 593 (1968). However, a defendant may escape liability by showing that he was on the wrong side of the road from a cause other than his own negligence. Anderson v. Webb, 267 N.C. 745, 148 S.E. 2d 846 (1966). See also Ramsey v. Christie, 19 N.C. App. 255, 198 S.E. 2d 470 (1973).\nWhile defendant in the instant case stipulated that the car he was operating crossed over the median into the southbound lane and collided with McDonald, he also offered evidence tending to show that he was in the southbound lane from a cause other than his own negligence. Therefore, a jury question was presented and the trial court properly denied plaintiffs motion for a directed verdict on the first issue. Anderson v. Webb, supra.\nHaving held that plaintiff was not entitled to a directed verdict on the first issue, we need not consider its contention that it was entitled to a directed verdict on the other issues because answers in favor of plaintiff on those issues were dependent upon an answer in its favor on the first issue.\nPlaintiff states its third question as follows: \u201cDid the trial court err in denying Nationwide\u2019s Motion for a Judgment Notwithstanding the Verdict on the first issue and for refusing to set the verdict aside?\u201d\nFor plaintiff to be entitled to judgment notwithstanding the verdict (n.o.v.) on the first issue, it must first be determined that it was entitled to a directed verdict on that issue. G.S. 1A-1, Rule 50. Having already held that plaintiff was not entitled to a directed verdict, we also hold that it was not entitled to a judgment n.o.v.\nFinally, we consider whether the trial court erred in refusing to set the verdict aside. After the jury returned its verdict, plaintiff moved for judgment n.o.v. on the first issue and for a new trial on the grounds that the verdict was against the greater weight of the evidence. After arguments of counsel, the trial judge stated that he would have granted plaintiff\u2019s motion for directed verdict except that the Supreme Court had mandated that the issues be submitted. He thereupon denied the motion for judgment n.o.v. While the court properly denied plaintiff\u2019s motion for a directed verdict, it stated the wrong reason for doing so, the proper reasons being hereinabove stated.\nCounsel then made arguments on the question of setting the verdict aside after which the trial judge stated that he agreed with plaintiff\u2019s counsel. His Honor further stated: \u201cThe verdict of the jury shocks me but I\u2019m not going to set it aside. And the only reason on earth I\u2019m not going to set it aside is that the Supreme Court stipulated that it would be a jury issue.\u201d\nObviously, the trial judge was referring to our former opinion which set out the issues warranted by the pleadings and the evidence. Nevertheless, His Honor grossly misconstrued our opinion in concluding that he had been deprived of his authority granted by G.S. 1A-1, Rule 59, and particularly his authority under subsection (7), to set the verdict aside because of insufficiency of the evidence to justify the verdict.\nUpon proper presentation to this court, the error of the trial judge in misconstruing the law would entitle plaintiff to have the cause remanded to the trial judge for consideration of its motion to set the verdict aside because of \u201cinsufficiency of the evidence to justify the verdict\u201d or, to use the term in common usage, for the reason that the verdict \u201cwas against the greater weight of the evidence\u201d. Where a ruling is based upon a misapprehension of the applicable law, the cause will be remanded in order that the matter may be considered in its true legal light. 1 Strong\u2019s N.C. Index 3d, Appeal and Error \u00a7 63.\nHowever, while plaintiff raised the question regarding the failure of the trial court to grant its motion to set the verdict aside for the reason that it was against the greater weight of the evidence, it abandoned the assignment in its brief. At no place in the brief does plaintiff argue the assignment with respect to this question. \u201cQuestions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party\u2019s brief, are deemed abandoned.\u201d Rule 28, Rules of Appellate Procedure, 287 N.C. 671, 741.\nFurthermore, plaintiff concludes its brief with the following statements: \u201cNationwide has not asked for and does not seek a new trial. . . . Believing in its entitlement to the motions sought, Nationwide seeks only that relief here, and respectfully prays this Court to grant it a judgment n.o.v. on the first issue and directed verdicts on the second and third.\u201d\nFor the reasons stated, the verdict and judgment of the trial court will not be disturbed.\nNo error.\nJustice BROCK did not participate in the consideration or decision of this case.", "type": "majority", "author": "BRITT, Justice." }, { "text": "Justice HUSKINS dissenting.\nAt the fourth trial of this case the jury answered the first issue \u201cNo,\u201d saying that Charles Edward McDonald was not injured and damaged by the negligence of defendant. Plaintiff, among other things, moved to set the verdict aside as against the greater weight of the evidence. That motion, as well as others, was denied by Judge Bailey, not on the merits but on the ground that the decision of this Court following the third trial, 293 N.C. 431, 238 S.E. 2d 597 (1977), required him to submit certain issues to the jury and to render judgment accordingly. Plaintiff then petitioned this Court for a writ of mandamus to require Judge Bailey to consider the various motions on their merits. We treated that document as a petition for certiorari and allowed it. Therefore, in actuality, the question before this Court on this appeal is whether Judge Bailey erred in refusing to consider on its merits the plaintiff\u2019s motion to set the verdict aside.\nJudge Bailey\u2019s comments during the arguments for and against the various motions after verdict clearly indicate tha,t he acted under the misapprehension that this Court\u2019s decision, reported in 293 N.C. 431, required him (1) to submit the issues set out in that opinion whether or not the evidence offered at the fourth trial justified submission, (2) to sign a judgment on the verdict, (3) to refuse to set the verdict aside even though it be against the greater weight of the evidence, and (4) to prohibit a peremptory instruction on any and all of the first three issues regardless of what the evidence was. For example, Judge Bailey stated to counsel: The jury\u2019s verdict \u201cshocks my conscience. ... I don\u2019t see how the jury reached the conclusion to save my life. . . . The verdict of the jury shocks me but I am not going to set it aside. And the only reason on earth I\u2019m not going to set it aside is that the Supreme Court stipulated that it would be a jury issue.\u201d The record contains other expressions of like import.\nOur decision did not repeal the Rules of Civil Procedure and it should not have impaired Judge Bailey\u2019s common sense. If the verdict was so far out of line as to \u201cshock\u201d Judge Bailey\u2019s conscience, and I think it must have been, then he should have set the verdict aside.\nFor the reasons stated I dissent from the majority opinion and vote to remand this case so that Judge Bailey may pass upon the motion to set the verdict aside in the exercise of his sound discretion. Justice is not served when unseemly verdicts are sustained on technicalities. We have said many times that where a ruling or a judgment is based upon a misapprehension of applicable law, the cause will be remanded in order that the matter may be considered in its true legal light. See Helms v. Rea, 282 N.C. 610, 194 S.E. 2d 1 (1973); Myers v. Myers, 270 N.C. 263, 154 S.E. 2d 84 (1967); Davis v. Davis, 269 N.C. 120, 152 S.E. 2d 306 (1967).", "type": "dissent", "author": "Justice HUSKINS dissenting." } ], "attorneys": [ "Ragsdale & Liggett, by George R. Ragsdale and Robert R. Gardner, for plaintiff-appellant.", "Johnson, Patterson, Dilthey & Clay, by Ronald C. Dilthey, for defendant-appellee." ], "corrections": "", "head_matter": "NATIONWIDE MUTUAL INSURANCE COMPANY v. ANDREW CURRIE CHANTOS\nNo. 7\n(Filed 3 October 1979)\n1. Automobiles \u00a7 46\u2014 opinion testimony as to speed \u2014 admissibility\nDefendant driver of an automobile could properly give his opinion as to the speed of his automobile just prior to the accident giving rise to this cause of action, since defendant\u2019s testimony revealed that he was a person of at least ordinary intelligence and experience and that he had a reasonable opportunity to judge the speed of the vehicle he was operating.\n2. Automobiles \u00a7 53.1\u2014 loss of control of vehicle \u2014 crossing into lane of oncoming traffic \u2014 reason other than negligence \u2014 jury question\nIn an action to recover from defendant an amount paid to a third person for injuries sustained in an automobile accident where defendant stipulated that the car he was operating crossed over the median into the lane of traffic going in the opposite direction and collided with the third person\u2019s car, a jury question was nevertheless presented where defendant offered evidence that his car, which was travelling at 25 mph, skidded and went into a spin when he drove it onto a recently repaved bridge which was covered with rain water, and such evidence tended to show that defendant was in the lane of oncoming traffic from a cause other than his own negligence.\n3. Appeal and Error \u00a7\u00a7 45.1, 63\u2014 misapprehension of law by trial court \u2014 refusal to set verdict aside \u2014error not discussed in brief\u2014 abandonment of assignment of error\nWhere the trial court would have set the verdict aside but for its misunderstanding that an earlier decision of the Supreme Court required that the matter be submitted to and determined by the jury, such error of the court in misconstruing the law would entitle plaintiff to have the cause remanded to the trial judge for consideration of its motion to set the verdict aside; however, because plaintiff did not raise the question in its brief, such assignment of error is deemed abandoned.\nJustice Brock did not participate in the consideration or decision of this case.\nJustice Huskins dissenting.\nOn certiorari to review judgment of Bailey, J., entered at the 16 October 1978 Session of WAKE Superior Court.\nThis case has been tried four times and this marks its fourth appearance in the appellate division. The first trial resulted in a summary judgment in favor of defendant; that judgment was reversed by the Court of Appeals. See 21 N.C. App. 129, 203 S.E. 2d 421 (1974). The second trial also resulted in a summary judgment in favor of defendant and that judgment was reversed by the Court of Appeals. 25 N.C. App. 482, 214 S.E. 2d 438, cert, denied, 287 N.C. 465, 215 S.E. 2d 624 (1975).\nFollowing the third trial, judgment was again entered for defendant. Plaintiff appealed from that judgment and this court allowed plaintiffs petition for discretionary review prior to determination by the Court of Appeals. In an opinion reported at 293 N.C. 431, 238 S.E. 2d 597 (1977), this court ordered a new trial and stated that the following issues should be submitted to the jury:\n1. Was Charles Edward McDonald injured and damaged by the negligence of defendant?\n2. Was plaintiff\u2019s settlement with McDonald made in good faith?\n3. Was plaintiff\u2019s settlement with McDonald fair and reasonable?\n4. What amount is plaintiff entitled to recover?\nSaid issues were submitted at the fourth trial. The jury answered the first issue \u201cNo\u201d and, in view of that answer and instructions of the court, it did not answer the other issues. From judgment entered on the verdict in favor of defendant, plaintiff gave notice of appeal and we allowed plaintiff\u2019s petition for cer-tiorari prior to determination of the case by the Court of Appeals.\nRagsdale & Liggett, by George R. Ragsdale and Robert R. Gardner, for plaintiff-appellant.\nJohnson, Patterson, Dilthey & Clay, by Ronald C. Dilthey, for defendant-appellee.\n. Rule 59 supercedes former G.S. 1-207 which authorized the trial judge to set aside a verdict and grant a new trial \u201cupon exceptions, or for insufficient evidence, or for excessive damages\u201d. The term \u201cagainst the greater weight of the evidence\" came into usage as synonymous with \u201cinsufficiency of the evidence\u201d. See 2 McIntosh, N.C. Practice and Procedure 2d, \u00a7 1596(4) and cases cited therein." }, "file_name": "0246-01", "first_page_order": 270, "last_page_order": 278 }