Stilley v. AUTO. ENTERPRISES OF HIGH POINT

284 S.E.2d 684 (1981)

Cynthia Lynn STILLEY v. AUTOMOBILE ENTERPRISES OF HIGH POINT, INC. James D. STILLEY v. AUTOMOBILE ENTERPRISES OF HIGH POINT, INC.

No. 8122SC96.

Court of Appeals of North Carolina.

December 1, 1981.

*686 Boyan & Nix by Clarence C. Boyan, High Point, for plaintiffs-appellants.

Womble, Carlyle, Sandridge & Rice by Daniel W. Donahue and Keith Clinard, Winston-Salem, for defendant-appellee.

WHICHARD, Judge.

DEFENDANT'S APPEAL

Defendant presents two questions: (1) whether the court erred in declining to dismiss plaintiffs' complaint for failure to comply with an order to answer interrogatories by a certain date; and (2) whether the court erred in denying its motion for summary judgment. We answer both questions in the negative.

I. MOTION TO DISMISS FOR NONCOMPLIANCE WITH DISCOVERY ORDER

Defendant submitted interrogatories to plaintiffs which asked them to list their expert witnesses and those witnesses who would testify concerning any alleged defect or unsafe condition of the automobile. When defendant did not receive answers to these interrogatories within the time permitted by statute, it moved for an order compelling plaintiffs to answer. The court ordered plaintiffs to answer on or before 25 July 1979 or have their actions dismissed. Plaintiffs signed and verified the answers on 23 July 1979. The answers were not filed, however, until November 1979. The record contains affidavits of plaintiffs' attorney and his secretary averring that on 23 July 1979 the answers were signed and mailed to defendant's attorney at his old address in Greensboro rather than at his new Winston-Salem address. The certificate of service was dated 23 July 1979.

Defendant moved that the court dismiss plaintiffs' actions for failure to comply with the discovery order. The court found the answers were signed and served on defendant on 23 July 1979 by copies being deposited with the United States Post Office Department addressed to defendant's counsel, and that defendant's counsel later received the copies. The court therefore declined to impose sanctions on plaintiffs.

The court's order was supported by the affidavits submitted by plaintiffs in response to the motion. We find no abuse of discretion in the court's decision not to dismiss plaintiffs' actions. See generally Telegraph Co. v. Griffin, 39 N.C.App. 721, 251 S.E.2d 885 disc. review denied 297 N.C. 304, 254 S.E.2d 921 (1979).

II. MOTIONS FOR SUMMARY JUDGMENT

Defendant filed motions for summary judgment which asserted that no genuine issues of material fact existed in plaintiffs' actions. Defendant filed no supporting affidavits. Plaintiffs countered the motions with affidavits of Claude Thayer, Stephen Thayer, Sammie Hedrick, and Cynthia Stilley.

"The law places the burden on a movant for summary judgment to show (1) that no *687 genuine issue of material fact exists, and (2) that the movant is entitled to judgment as a matter of law." Green v. Wellons, Inc., 52 N.C.App. 529, 532, 279 S.E.2d 37, 40 (1981). For purposes of the motion, defendant accepted as true the facts revealed by a review of the materials before the court in the light most favorable to plaintiffs. In their complaint, plaintiffs alleged facts sufficient to establish a prima facie case against defendant. By not supporting its motion with affidavits, defendant failed to carry either the first burden of showing no genuine issue of material fact or the second burden of showing its entitlement to judgment as a matter of law. Until defendant met its burden, plaintiffs had no burden of producing a forecast of evidence in support of their claims. Green, 52 N.C.App. at 532, 279 S.E.2d at 40. Thus, by filing affidavits plaintiffs did more than the law required. The court properly denied defendant's motions.

PLAINTIFFS' APPEAL

Plaintiffs present three questions: (1) whether the court erred in ruling, on defendant's motion in limine, that plaintiffs could not offer any expert witnesses and that only plaintiffs and four witnesses whose affidavits plaintiffs had obtained could testify concerning any alleged defect or unsafe condition of the automobile; (2) whether the court erred in excluding the testimony of defendant's vice-president concerning his knowledge of the condition of the automobile when it was loaned to plaintiffs; and (3) whether the court erred in granting directed verdicts for defendant at the close of plaintiffs' evidence. We answer each question in the affirmative.

I. MOTION IN LIMINE

In their answers to interrogatories plaintiffs stated they intended to call no expert witnesses. They listed no witnesses who would testify about defects, but stated they expected to develop further evidence concerning defects or unsafe conditions prior to trial. They did not supplement their answers. During trial the court ordered, in response to a motion in limine by defendant, that plaintiffs could not offer any expert testimony and could only offer, concerning alleged defects or unsafe conditions, their own testimony and that of four witnesses whose affidavits they had filed.

Through this motion in limine defendant sought imposition of a Rule 37(b)(2)(B) sanction. Such sanction may only be imposed for failure of a party to comply with a court order compelling discovery. G.S. 1A-1, Rule 37(b)(2)(B); W. Shuford, N.C. Civil Practice and Procedure § 37-3 (2d ed. 1981). Defendant did not obtain an order compelling plaintiffs to supplement their answers to the interrogatories referred to above. Because plaintiffs had not failed to comply with a discovery order, the court improperly granted defendant's motion in limine. Id.

II. TESTIMONY OF DEFENDANT'S VICE-PRESIDENT

Plaintiffs offered defendant's vice-president as an adverse witness. The court sustained objection to plaintiffs' questions as to whether this witness had inspected the automobile on the day he authorized its loan to plaintiffs. Plaintiffs, by these questions, sought direct evidence relating to defendant's duty to inspect and knowledge of defects in the vehicle. The court therefore improperly excluded the testimony. See Stansbury's North Carolina Evidence § 76 (Brandis rev. 1973).

III. MOTIONS FOR DIRECTED VERDICT

A motion for directed verdict presents the question whether the evidence was sufficient to have a jury pass on it. The trial court should deny the motion when, viewing the evidence in the light most favorable to the plaintiff and giving the plaintiff the benefit of all reasonable inferences, it finds "`any evidence more than a scintilla' to support plaintiff's prima facie case in all its constituent elements." 2 McIntosh, North Carolina Practice and Procedure 2d, § 1488.15 (Phillips Supp. *688 1970); Hunt v. Montgomery Ward and Co., 49 N.C.App. 638, 642, 644, 272 S.E.2d 357, 360 (1980).

Defendant as a bailor is liable for injuries to plaintiffs as bailees if, at the time it allowed the vehicle to leave its possession, it knew or in the exercise of reasonable care should have known that the vehicle was in a defective or unsafe condition, and if such defective or unsafe condition caused plaintiffs' injuries. See e. g. Austin v. Austin, 252 N.C. 283, 113 S.E.2d 553 (1960). To exercise reasonable care a retail dealer who undertakes to repair and recondition a used vehicle for use upon the public highways must inspect the vehicle to detect defects which would make it a menace to those who might use it or come in contact with it, and must make repairs necessary to render the vehicle reasonably safe for such use. The dealer is charged with knowledge of defects which are patent and discoverable in the exercise of due care. See e. g. Jones v. Chevrolet Co., 217 N.C. 693, 9 S.E.2d 395 (1940).

Plaintiffs produced more than a scintilla of evidence that a defective steering mechanism caused the collision which resulted in their injuries, that the defect existed prior to and at the time defendant loaned the car to plaintiffs, and that defendant's representatives knew of the defect because of complaints about the steering by prior users. Plaintiffs also produced evidence that no representative of defendant inspected the car immediately prior to loaning it to plaintiffs. From this evidence a jury could find failure to exercise due care.

Defendant argues that plaintiffs failed to produce any evidence of a specific defect which existed at the time they obtained possession of the automobile and which caused their injuries. We disagree. "Direct evidence of negligence is not required, but the same may be inferred from acts and attendant circumstances ...." Austin v. Austin, 252 N.C. 283, 288, 113 S.E.2d 553, 557 (1960). Cynthia Stilley testified that, after the car suddenly veered to the left, she turned the steering wheel to the right, it went all the way around, and the car did not react. Steve Thayer, Claude Thayer, and Sammie Hedrick testified, in affidavits and at trial, that there was something seriously wrong with the automobile's steering mechanism. Their testimony related to times prior to plaintiff's possession of the automobile. This evidence permitted an inference that a defective steering mechanism, which existed prior to and at the time of defendant's bailment of the automobile to plaintiff, caused the collision. The evidence, in the light most favorable to plaintiff, thus presented questions of fact for the jury; and the court erred in granting directed verdicts for defendant.

RESULT

In defendant's appeal, affirmed.

In plaintiffs' appeal, reversed and remanded for re-trial in accordance with this opinion.

HEDRICK and HILL, JJ., concur.