Nolan v. Boulware , 21 N.C. App. 347 ( 1974 )

204 S.E.2d 701 (1974) 21 N.C. App. 347

Charlie C. NOLAN, Sr., Plaintiff,
v.
Georgia BOULWARE and Emmitt Russell Moxley, Original Defendants,
v.
LUMBERMENS MUTUAL CASUALTY COMPANY, Third-Party Defendant.
Eliza McLaurin NOLAN, Plaintiff,
v.
Georgia BOULWARE and Emmitt Russell Moxley, Original Defendants,
v.
LUMBERMENS MUTUAL CASUALTY COMPANY, Third-Party Defendant.

No. 7322DC437.

Court of Appeals of North Carolina.

May 1, 1974. Certiorari Denied July 1, 1974.

Klass & Beeker by Ned A. Beeker, Lexington, for plaintiffs appellees.

Walser, Brinkley, Walser & McGirt by Charles H. McGirt and G. Thompson Miller, Lexington, for defendant appellant Georgia Boulware.

Hudson, Petree, Stockton, Stockton & Robinson by James H. Kelly, Jr., Winston-Salem, for additional defendant appellee Lumbermens Mutual Casualty Co.

Certiorari Denied by Supreme Court July 1, 1974.

PARKER, Judge.

Appellant Boulware first assigns as error the denial of her motion for a directed verdict on the issue of agency, contending that submission of such an issue was supported neither by allegation nor proof. Considering first the sufficiency of the allegation, it is clear that under our former practice when a plaintiff sought to hold a defendant liable for the negligence of another, it was necessary to allege in the complaint facts sufficient to make respondeat superior apply, else upon demurrer the complaint was held fatally defective. Parker v. Underwood, 239 N.C. 308, 79 S.E.2d 765. Now, however, since the effective date of our new Rules of Civil Procedure, such a complaint need contain in this regard only a "short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief." G.S. 1A-1, Rule 8(a)(1). The complaints now before us do contain allegations as to the negligent acts and omissions of the defendant Moxley which plaintiffs contend were the sole proximate cause of their injuries and refer to these negligent acts and omissions as being "imputed to the defendant Boulware." The word "imputed" has been defined as follows:

"As used in legal phrases, this word means attributed vicariously; that is, an act, fact, or quality is said to be `imputed' to a person when it is ascribed or charged to him, not because he is personally cognizant of it or responsible for it, but because another person is, over whom he has control or for whose acts or knowledge he is responsible." Black's Law Dictionary, 4th Ed.

We hold that the complaints were sufficient to give defendant Boulware fair notice that plaintiffs intended to prove facts to establish that Boulware was legally responsible for the negligent acts of her codefendant Moxley. If for purposes of preparing her defense she wished to know more specifically exactly what facts plaintiffs intended to rely upon to accomplish that objective, other tools, such as discovery proceedings under Rule 26 or perhaps a motion for more definite statement under Rule 12(e), were at her disposal. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161. The new rules, of course, do not prevent a prudent pleader from serving a bit more meat with the bare bones than was done in the present cases. To have done so would have made the dish a bit more palatable to those of us who had become accustomed to the fact pleading of our former practice. We hold only that it was not essential that this be done in order to support submission of the agency issue to the jury.

We also find the evidence sufficient to withstand defendant Boulware's motion for a directed verdict on the agency issue. Defendant Boulware admitted she was the owner of the car driven by Moxley at the time of the collision, thereby making the statutory rule of evidence created by G.S. § 20-71.1(a) applicable. Although she testified that she had never given Moxley permission to drive her car and that at the time of the collision he was not on any trip or errand for her, she admitted that Moxley was her boyfriend and that early on the morning of the accident she had left her car and keys with him at an unopened service station where she had arranged to have some repair work done upon the car. The proprietor of the service station testified that Moxley had never worked for him, but that he had allowed Moxley and others to use his lot for purposes of working on automobiles on their own, that he had seen Moxley drive Boulware's car several times before, that on the day prior to the accident Moxley and Boulware had come to his station together and asked him about checking her car, that he had told her that if she would bring her car by, he would check it out and find what the trouble was, and that on the day of the accident Moxley had twice driven the car by the station but had not left it there. On this evidence the jury could find that at the time of the accident, Moxley was driving the Boulware automobile as her agent for the purpose of having repairs made to the automobile. Defendant Boulware's motion for a directed verdict on the agency issue was properly denied.

What we have said above also disposes of appellant Boulware's second assignment of error, which was directed to the refusal of the court to give a peremptory instruction in her favor on the agency issue. Cases cited by appellant, such as Belmany v. Overton, 270 N.C. 400, 154 S.E.2d 538, and Passmore v. Smith, 266 N.C. 717, 147 S.E.2d 238, are not here applicable. In those cases the plaintiff relied solely on G.S. § 20-71.1 to take the issue of agency to the jury and the only positive evidence on the issue of agency was that offered by the defendant which tended to show that the driver was on a purely personal mission at the time of the collision. In such a case the defendant is entitled to a peremptory instruction, related directly to the particular facts shown by defendant's positive evidence, to answer the issue of agency in the negative if the jury should find the facts to be as defendant's positive evidence tended to show. In the present cases plaintiffs were not forced to rely solely upon G.S. § 20-71.1 to take the issue of agency to the jury. The positive evidence was conflicting and was sufficient to support a finding of the issue in the affirmative. Under these circumstances, the peremptory instruction was properly denied. The court did correctly instruct the jury that if they found that at the time of the collision Moxley "was making the trip solely for his own personal purposes, and not on a mission or errant of any kind for the defendant Mrs. Boulware," it would be their duty to answer the issue in the negative. This was as strong an instruction on this question as appellant Boulware was entitled to receive.

Appellant contends she suffered prejudicial error when the court permitted counsel for the third party defendant, Lumbermens Mutual Casualty Co., during the course of his argument to the jury, to explain the position of his client in these cases. In its answers the Casualty Co. stated it was "electing to defend in the name of the defendant Emmitt Russell Moxley," and defendant Boulware contends that the Casualty Co. should have been bound by this election. G.S. § 20-279.21(b)(3) a, however, merely provides that an insurer situated as was the Casualty Co. in these cases "may defend the suit in the name of the uninsured motorist or in its own name," and we find nothing in the statute which requires that its decision as to which name it will defend in, once made, must be irrevocable. In the present cases counsel for the Casualty Co. announced in a pretrial conference his decision to defend in the name of the Casualty Co., and having done so it was proper for him to explain to the jury the position of his client in these cases. We do not interpret his statements to the jury, as appellant seeks to do, as having any reference or calling the jury's attention to any possible liability insurance coverage for appellant Boulware. Appellant's objections to the jury argument made by counsel for the Casualty Co. were properly overruled.

Appellant has attempted to assign as error portions of the court's instructions to the jury. The exceptions to the charge on which this assignment of error is based appear either at the end of a paragraph in the instructions or, in some instances, in the middle of a paragraph, without indicating clearly what portions of the charge are excepted to; nor does the assignment of error itself set out clearly the portions of the instructions excepted to and assigned as error. These are at best broadside exceptions, Yandle v. Yandle, 17 N.C.App. 294, 193 S.E.2d 768. We have, nevertheless, reviewed the charge as a whole and find it free from prejudicial error.

After the verdict was returned, counsel for appellant requested that the jury be polled as to the third issue. Eleven jurors responded that their answer was "Yes" and that they still assented thereto. One juror responded as follows:

"ASSISTANT CLERK: Your foreman has returned a verdict of `yes' to the third issue. Is this your verdict?

JUROR: No. (After a pause) It was my verdict.

ASSISTANT CLERK: Did you understand the question?

JUROR: Yes.

THE COURT: What was the answer, sir?

JUROR: This was my verdict, as was rendered.

THE COURT: O.K.

ASSISTANT CLERK: Is this your verdict?

JUROR: Yes, ma'am.

ASSISTANT CLERK: Do you still assent thereto?

JUROR: (after a pause): May I ask a question?

THE COURT: No, just answer the question.

JUROR: (There is a pause and no answer.)

THE COURT: Do you understand the question?

JUROR: Yes, sir, I understand the question. I'm sorry, I don't mean to—I misunderstand some aspects of this case. I will have to admit that, and I'm sorry, I'm not very sure, I rendered a verdict. I said `yes,' and I guess I will stand before it.

THE COURT: Would you repeat the question again, please.

ASSISTANT CLERK: Your foreman has returned a verdict of `yes' to the third issue. Is this your verdict?

JUROR: Yes, ma'am.

ASSISTANT CLERK: Do you still assent thereto?

JUROR: Yes, ma'am."

While expressing some hesitation, the juror clearly and unequivocally stated that his verdict on the third issue was "Yes" and that he still assented thereto. Nothing suggests that he was unduly influenced either by his fellow jurors or by the court, and he was not prevented from making a statement as to his verdict. His final statement clearly signified his assent to the verdict as rendered, and we find no error in the court's action in accepting the verdict. Trantham v. Furniture Co., 194 N.C. 615, 140 S.E. 300; Lowe v. Dorsett, 125 N.C. 301, 34 S.E. 442; State v. Godwin, 27 N.C. 401; Sheppard v. Andrews, 7 N.C.App. 517, 173 S.E.2d 67. The case cited by appellant, In re Sugg, 194 N.C. 638, 140 S.E. 604, is distinguishable; in that case the Supreme Court affirmed an order of the trial judge setting aside a verdict and ordering a new trial as a matter of law after the trial judge found facts from which it was apparent that one juror did not assent to the verdict as accepted by the clerk. Nothing in the present record suggests that the verdict rendered was not assented to by all twelve jurors.

No error.

BRITT and MORRIS, JJ., concur.