Howard v. Sasso

116 S.E.2d 341 (1960)

253 N.C. 185

Doyle Rex HOWARD v. Concetta P. SASSO.

No. 174.

Supreme Court of North Carolina.

October 12, 1960.

*343 Teague, Johnson & Patterson, Raleigh, for defendant, appellant.

Poisson, Marshall, Barnhill & Williams, Wilmington, for plaintiff, appellee.

BOBBITT, Justice.

Process may be served upon a nonresident in the manner prescribed by G.S. § 1-105 in any action against him "growing out of any accident or collision in which said nonresident may be involved by reason of the operation by him, for him, or under his control or direction, express or implied, of a motor vehicle on such public highway of this State, or at any other place in this State."

Finding of fact No. 3 is conclusive on appeal if supported by competent evidence. Ewing v. Thompson, 233 N.C. 564, 65 S.E.2d 17, and cases cited; Hart v. Queen City Coach Co., 241 N.C. 389, 85 S.E.2d 319.

Since plaintiff relies solely on the (admitted) fact that defendant was the registered owner of the 1957 Ford, decision turns upon the answer to this question: Is G.S. § 20-71.1 applicable in the determination by the court of the crucial question of fact, namely, whether the 1957 Ford at the time of the collision was operated for defendant or under her control or direction?

"The statute (G.S. 20-71.1) was designed to create a rule of evidence. Its purpose is to establish a ready means of proving agency in any case where it is charged that the negligence of a nonowner operator causes damage to the property or injury to the person of another. Travis v. Duckworth, 237 N.C. 471, 75 S.E.2d 309. It does not have, and was not intended to have, any other or further force or effect." Hartley v. Smith, 239 N.C. 170, 177, 79 S.E.2d 767, 772.

G.S. § 20-71.1 applies when, as in this case, the plaintiff, upon sufficient allegations, seeks to hold the owner liable for the negligence of a nonowner operator under the doctrine of respondeat superior. Osborne v. Gilreath, 241 N.C. 685, 86 S.E.2d 462, and cases cited. It is well settled that, upon the defendant's denial of such allegations, "proof or admission of ownership by the defendant of the motor vehicle involved in an accident is sufficient to make out a prima facie case of agency which will support, but not compel, a verdict against the owner under the doctrine of respondeat superior for damages proximately caused by the negligence of the nonowner operator of the motor vehicle." Lynn v. Clark, 252 N.C. 289, 292, 113 S.E.2d 427, 430, and cases cited; Whiteside v. McCarson, 250 N.C. 673, 110 S.E.2d 295, and cases cited.

Defendant contends G.S. § 20-71.1 applies only in the determination by a jury of an issue of agency raised by the pleadings in an action of which the court has *344 jurisdiction. But nothing in the statute purports to so restrict the application of its provisions. The statute applies "(i)n all actions to recover damages for injury to the person or to property or for the death of a person, arising out of an accident or collision involving a motor vehicle, * * *." We are of the opinion, and so hold, that the rule of evidence established thereby applies whenever a factual determination as to alleged agency is to be made, whether by the court to resolve a question of fact or by a jury to resolve an issue of fact.

To sustain service of process under G.S. § 1-105, there must be a finding to the effect that the owner's motor vehicle, on the occasion of the collision, was being operated "for him, or under his control or direction." Under G.S. § 20-71.1, proof of ownership is prima facie evidence "that such motor vehicle was then being operated by and under the control of the person for whose conduct the owner was legally responsible, for the owner's benefit, and within the course and scope of his employment." Hartley v. Smith, supra; Jyachosky v. Wensil, 240 N.C. 217, 81 S.E.2d 644. Despite differences in the wording of the quoted provisions of the two statutes, the essential meaning is the same. G.S. § 1-105 requires an affirmative finding as to agency and G.S. § 20-71.1 establishes the rule that proof of ownership is prima facie evidence of such agency. While the plaintiff in Pressley v. Turner, 249 N.C. 102, 105 S.E.2d 289, did not rely upon G.S. § 20-71.1, it is noteworthy that service of process under G.S. § 1-105 was sustained on findings of fact phrased in terms of alleged agency rather than in the language (quoted above) of G.S. § 1-105.

In view of our conclusion that G.S. § 20-71.1 is applicable in the determination by the court of the crucial question of fact, it follows that the (admitted) fact that defendant was the registered owner of the 1957 Ford was sufficient to support, but not to compel, a finding in plaintiff's favor as to the alleged agency. The credibility of the evidence (affidavits) offered by defendant was for consideration and determination by the court.

It is noted: The court's factual findings, made solely as the basis for decision as to the validity of service of process, are not for consideration in any manner in the determination by a jury at trial of issues raised by the pleadings. Winborne v. Stokes, 238 N.C. 414, 78 S.E.2d 171.

Affirmed.