Hodges v. Malone & Co.

70 S.E.2d 478 (1952)

235 N.C. 512

HODGES v. MALONE & CO., Inc.

No. 235.

Supreme Court of North Carolina.

April 30, 1952.

*479 Wilson & Johnson, Lillington, for plaintiff appellee.

Neill McK. Salmon, Lillington, for defendant appellant.

VALENTINE, Justice.

The defendant contends and strongly urges that the court below should have dismissed plaintiff's action by judgment as of nonsuit on the ground that he failed to show that the driver of the truck was acting within the scope of his employment at the time of the collision. This point is urged here with great earnestness, but the difficulty of defendant's position on this point lies in the fact that defendant has admitted in its answer that defendant's driver was its agent and acting within the scope of his duty and authority at the time of the collision. While this admission is not couched in direct and specific language, that the defendant's driver was acting within the scope of his authority at the time of the collision the defendant does admit in his pleadings and thereby puts at rest forever the fact that the driver was operating the truck as defendant's agent at the time of and in respect to the exact transaction resulting in the collision out of which the injury arose. This is in effect an admission and the phraseology connotes action and conduct within the scope of the duty of his employment at the exact moment of the collision. It was competent but not necessary that the plaintiff put these two paragraphs of the pleadings in evidence. The allegation of agency and scope of employment *480 were issuable facts which, when admitted, are put beyond the range of questioning and need not be introduced in evidence. Royster v. Hancock, 235 N.C. 110, 69 S.E.2d 29.

The facts in this cause with respect to agency and scope of employment go far beyond the principle discussed in Freeman v. Dalton, 183 N.C. 538, 111 S.E. 863, and Toler v. Savage, 226 N.C. 208, 37 S.E.2d 485, and Carter v. Thurston Motor Lines, 227 N.C. 193, 41 S.E.2d 586. Clearly in the case at Bar, it was unnecessary to submit to the jury the question of agency and scope of employment in view of the defendant's admissions. Webb v. Statesville Theatre Corp., 226 N.C. 342, 38 S.E.2d 84. A submission of this phase of the case to the jury therefore resulted in no harm to the defendant.

The defendant brings forward and discusses in his brief a number of other exceptions, most of which arise from exceptions, to the charge of the court upon the doctrine of respondeat superior. In the view we take of the law relating to defendant's motion for judgment as of nonsuit, it becomes unnecessary to discuss such of defendant's exceptions as relate to agency and scope of employment. Ordinarily the doctrine of respondeat superior in cases of this nature are substantive features upon which the court is required to give instructions. Such a requirement is eliminated on the facts in this case. However, the court did charge with sufficient clarity that phase of the case. Webb v. Statesville Theatre Corp., supra. Under the facts in this case it would not have been reversible error if his Honor had entirely omitted a reference to the doctrine of respondeat superior. Upon the entire charge, it appears that the court sufficiently instructed the jury with respect to proximate cause, including a detailed definition thereof. Gibbs v. Western Union Telegraph Co., 196 N.C. 516, 146 S.E. 209.

The defendant's broadside charge that his Honor failed to comply with the provisions of G.S. § 1-180 is without merit because it fails to particularize, specify and point out in what particular way the court failed. Price v. City of Monroe, 234 N.C. 666, 68 S.E.2d 283. On an examination of the whole charge we are led to the opinion that the charge fairly embraced all elements of the evidence necessary with the proper application of the law. Viewing the entire charge and its parts contextually, his Honor appears to have sufficiently met the requirements of G.S. § 1-180, both with respect to the law, the evidence and the instructions prayed for by the defendant. A complete perusal of the charge and an analysis of the jury's verdict on the issues leads to the conclusion that the charge was sufficiently clear and enlightening to aid the jury in reaching a just verdict.

The burden always rests upon the appellant not only to show error in the record, but he must go further and point out some manner in which his substantial rights were materially affected by the errors of the trial judge. Call v. Stroud, 232 N.C. 478, 61 S.E.2d 342; Stewart v. Dixon, 229 N.C. 737, 51 S.E.2d 182; Collins v. Lamb, 215 N.C. 719, 2 S.E.2d 863. After an examination of the entire record, we reach the conclusion that the case was fairly tried and find no sufficient grounds to disturb the results of the trial

No error.