Dinkins v. Booe

114 S.E.2d 672 (1960)

252 N.C. 731

William Robert DINKINS, Jr. v. Bobby BOOE and Fred Travis Driver.

No. 389.

Supreme Court of North Carolina.

June 10, 1960.

*674 Walter Zachary, Yadkinville, R. Lewis Alexander, Elkin, Hudson, Ferrell, Carter, Petree & Stockton, Winston-Salem, for plaintiff appellee.

Womble, Carlyle, Sandridge & Rice, H. Grady Barnhill, Jr., Winston-Salem, F. D. B. Harding, Yadkinville, for defendants appellants.

WINBORNE, Chief Justice.

Careful consideration of the record and case on appeal in case in hand fails to reveal prejudicial error.

Appellant Fred Driver's exceptions 1, 2, 8, and 19, and appellant Booe's exceptions 2, 4, and 13 are expressly abandoned by appellants. Fred Driver's exceptions 9 and 18 are taken as abandoned, no reason or argument having been stated nor authorities cited in support of the assignments based upon them. Harmon v. Harmon, *675 245 N.C. 83, 95 S.E.2d 355, 63 A.L.R. 2d 808; Henderson Cotton Mills v. Local Union No. 584, 251 N.C. 240, 111 S.E.2d 471.

Appellant Fred Driver assigned as error the court's submission of the issue as to his negligence in entrusting his automobile to appellant Booe, and the court's denial of his motion for peremptory instructions on the issue. Driver testified that he had known Booe all his life, that he "saw him pretty often" prior to the time of the wreck, that he owned the automobile being operated by Booe at the time of the collision, and that he had given Booe permission to use the automobile. He further testified that he knew at the time that Booe had had a "very serious" automobile accident in 1956, an automobile accident in June 1958, and that Booe had been convicted of driving without an operator's license in 1953. He denied prior knowledge of other violations of the motor vehicle laws by Booe, for which violations convictions had been admitted by Booe. One of these violations was operating an automobile on the wrong side of the highway at the time of the "very serious" accident in 1956.

This Court said in Heath v. Kirkman, 240 N.C. 303, 82 S.E.2d 104, 107, that "We recognize the principle that the owner of a motor vehicle who entrusts its operation to a person whom he knows, or by the exercise of due care should have known, to be an incompetent or reckless driver, thereby becomes liable for such person's negligence in the operation thereof; and in such case the liability of the owner is predicated upon his own negligence in entrusting the operation of the motor vehicle to such a person. 60 C.J.S. Motor Vehicles, § 431 P. 1057; 5 Am.Jur. 696, Automobiles, sec. 355; Bogen v. Bogen, 220 N.C. 648, 18 S.E.2d 162; McIlroy v. Akers Motor Lines, 229 N.C. 509, 50 S.E.2d 530." In Roberts v. Hill, 240 N.C. 373, 82 S.E.2d 373, the principle is again recognized and discussed. The evidence in the case at hand was sufficient to take this issue to the jury. The court properly denied the motion for peremptory instructions on the issue. Gouldin v. Inter-Ocean Ins. Co., 248 N.C. 161, 102 S.E.2d 846.

Appellant Fred Driver moved that the jury be peremptorily instructed on the issue of agency, and for a directed verdict on that issue. He excepted to the denial of the motions and assigned error thereto. The jury did not answer this issue. Its answer to the issue of Fred Driver's negligence in entrusting his automobile to appellant, Booe, together with its answers to the general issues of negligence and contributory negligence, was sufficient to support the judgment against appellant Fred Driver. If error were made to appear in the submission of the issue of agency, it would not be prejudicial to appellant. Call v. Stroud, 232 N.C. 478, 61 S.E.2d 342; Squires v. Textile Ins. Co., 250 N.C. 580, 108 S.E.2d 908.

Error is assigned to the court's charge on proximate cause. The court correctly instructed the jury that negligence, to be actionable, must proximately cause the injury complained of. Lane v. Bryan, 246 N.C. 108, 97 S.E.2d 411; McNair v. Richardson, 244 N.C. 65, 92 S.E.2d 459. The court defined proximate cause in substantial accord with the decisions of this Court. Chambers v. Edney, 247 N.C. 165, 100 S.E.2d 343; Adams v. State Board of Education, 248 N.C. 506, 103 S.E.2d 854. In applying the law to the evidence in this case relating to the issue of defendant Booe's negligence, the court instructed the jury that in order to answer the first issue in the affirmative it must find that defendant was negligent and, that defendant's negligence was the proximate cause of plaintiff's injury. This instruction placed an undue burden on plaintiff. "This instruction was favorable to the defendants. They were not prejudiced thereby and cannot be heard to complain." Price v. Gray, 246 N.C. 162, 97 S.E.2d 844, 849. The court's charge relating to proximate cause on the issue of contributory negligence is approved on authority *676 of this Court's decision in Price v. Gray, supra.

The defendants below submitted a request for special instructions on the standard of care required of defendant Booe when confronted with the automobile on his side of the road, and on the conduct of plaintiff in driving to the left as constituting contributory negligence. Appellants assign the court's failure to give the requested instruction as error.

This Court said in In re Will of Hall, 252 N.C. 70, 113 S.E.2d 1, 11, that "where the prayer for special instructions is properly presented, the court `* * * is not required to give them in the exact words used, and a substantial compliance with the request is sufficient.' N. C. P. & P. McIntosh, sec. 1517, p. 56; Michaux v. Paul Rubber Co., 190 N.C. 617, 619, 130 S.E. 306." The court below explained the provisions of G.S. § 20-148, applied them to the evidence, and fairly stated the contentions of the defendants relating thereto. In charging on the first issue the court instructed the jury "that if you find that (the defendant Booe) was acting in a sudden emergency and that his conduct was the conduct of an ordinary prudent person under similar circumstances, even though he pulled to the left of the road, he would not be guilty of negligence. An automobile driver who, by the negligence of another and not by his own negligence, is suddenly confronted with an emergency, compelled to act instantly, is not guilty of negligence if he makes an unwise choice * * * whether he used reasonable care under the circumstances is for you to say * * *. If you find that he did act as an ordinary prudent person, you would answer the issue `No', even though he pulled to the left side of the highway." And in charging on the issue of contributory negligence the court instructed the jury that if it should find that the plaintiff pulled to the left of the highway and failed to yield at least one-half of the main traveled portion of the highway, he would be guilty of contributory negligence, and that if the jury should find that plaintiff's negligence was a proximate cause of the injuries, it would answer the issue "Yes". The court further charged with respect to the conduct of the plaintiff in pulling to the left thereby creating a sudden emergency facing defendant, and instructed the jury that such conduct would constitute negligence. When the entire charge is read contextually, it appears that the court's instructions on these points substantially complied with the request, and in the light of the pertinent decisions of this Court, Hoke v. Atlantic Greyhound Corp., 227 N. C. 412, 42 S.E.2d 593; Journigan v. Little River Ice Co., 233 N.C. 180, 63 S.E.2d 183; Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383; Lucas v. White, 248 N.C. 38, 102 S.E.2d 387; Blackwell v. Lee, 248 N.C. 354, 103 S.E.2d 703; Bondurant v. Mastin, 252 N.C. 190, 113 S.E.2d 292, do not contain error prejudicial to appellants.

Appellant Fred Driver's assignment of error number 18 and appellant Booe's assignment number 11 are that the court erred in failing to apply the law to the evidence in that the court made no reference to any of the evidence concerning injuries in its charge on the issue of damages. It is apparent that the court based its charge on this issue upon the charge approved in Hunter v. Fisher, 247 N.C. 226, 100 S.E.2d 321. Here as in the Hunter case the court reviewed in detail the evidence of plaintiff's injuries. The charge approved in the Hunter case was given to the jury. The assignments of error relating thereto are overruled.

Other assignments of error to the charge have been considered. When the charge is read and considered as a composite whole, prejudicial error as to appellants sufficient to warrant a new trial is not shown. Kennedy v. James, 252 N.C. 434, 113 S.E.2d 889.

No error.