Talbert v. Choplin , 40 N.C. App. 360 ( 1979 )

253 S.E.2d 37 (1979) 40 N.C. App. 360

Betty L. TALBERT, Administratrix of the Estate of Ollie Junior Choplin, Deceased
v.
George Dwight CHOPLIN.

No. 7810SC334.

Court of Appeals of North Carolina.

March 20, 1979.

DeMent, Redwine & Askew, by Russell W. DeMent, Jr., Raleigh, for plaintiff appellant.

Ronald C. Dilthey, Teague, Johnson, Patterson, Dilthey & Clay, Raleigh, for defendant appellee.

PARKER, Judge.

"The purpose of summary judgment is to eliminate formal trials where only questions of law are involved by permitting penetration of an unfounded claim or defense in advance of trial and allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed." Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251 S.E.2d 419, 422 (1979). "The device used is one whereby a party may in effect force his opponent to produce a forecast of evidence which he has available for presentation at trial to support his claim or defense. A party forces his opponent to give this forecast by moving for summary judgment. Moving involves giving a forecast of his own which is sufficient, if considered alone, to compel a verdict or finding in his favor on the claim or defense. In order to compel the opponent's forecast, the movant's forecast, considered alone, must be such as to establish his right to judgment as a matter of law." 2 McIntosh, N.C. Practice and Procedure, § 1660.5 (2nd ed. Phillips Supp. 1970).

"In ruling on a motion for summary judgment, the Court does not resolve issues of fact but goes beyond the pleadings to determine whether there is a genuine issue of material fact. The moving party has the burden of establishing the absence of any triable issue, and the Court in considering the motion carefully scrutinizes the papers of the moving party and, on the whole, regards those of the opposing party with indulgence. This burden may be carried by movant by proving that an essential element of the opposing party's claim is nonexistent or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim. If the moving party meets this burden, the party who opposes the motion for summary judgment must either assume the burden of showing that a genuine issue of material fact for trial does exist or provide an excuse for not so doing." Zimmerman v. Hogg & Allen, 286 N.C. 24, 29, 209 S.E.2d 795, 798 (1974).

Applying these principles in the present case, defendant, as the party moving for summary judgment, had the burden of establishing the lack of any genuine issue of material fact and that he was entitled to judgment as a matter of law. To meet this burden he presented proof in the form of his own sworn statements that he was not the driver of the car in which plaintiff's intestate was riding when the fatal accident occurred. This evidence was sufficient, if considered alone, to compel a verdict in defendant's favor establishing his right to judgment as a matter of law. Plaintiff was thereby forced to produce a forecast of the evidence which she had available for presentation at trial to support her claim. She produced none. Instead, she relied solely upon the allegations in her verified complaint and upon what she contends are weaknesses in defendant's statements which undermined his credibility. This was not sufficient. G.S. 1A-1, Rule 56(e) provides as follows:

(e) Form of affidavits; further testimony; defense required.—Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Defendant, having supported his motion for summary judgment by his own sworn statements that he was not the driver, a matter concerning which he was competent to testify, G.S. 8-51, as amended effective 1 July 1977 by Ch. 74, Sec. 2, 1977 Session Laws, plaintiff could not rest upon the mere allegation to the contrary in her complaint. Although the complaint was verified by Betty L. Talbert and in this respect might be considered as an affidavit, it failed to show affirmatively that the affiant was competent to testify concerning the identity of the driver. Unless she was present when the accident occurred, which is not alleged in the complaint, it is manifest that she was not competent to testify as to who was driving. The verified complaint, therefore, failed to meet the requirements for an affidavit to be considered under Rule 56(e). We are thus left with a record which shows that defendant is prepared to present at trial competent sworn testimony to show that he was not the driver while plaintiff, who at trial would have the burden of proof, can present nothing to show that he was. The mere fact that the jury might not believe the defendant hardly furnishes proof for the plaintiff. It is true that the identity of the driver of an automobile at the time of an accident may be established by circumstantial evidence. Greene v. Nichols, 274 N.C. 18, 161 S.E.2d 521 (1968); King v. Bonardi, 267 N.C. 221, 148 S.E.2d 32 (1966); Drumwright v. Wood, 266 N.C. 198, 146 S.E.2d 1 (1966); Yates v. Chappell, 263 N.C. 461, 139 S.E.2d 728 (1965); Annot., 32 A.L.R. 2d 988 (1953). However, if in the present case the circumstances at the scene of the accident, such as the positions in which defendant's body and that of plaintiff's intestate were found after the wreck, or any other circumstances exist to furnish a logical basis for a finding that defendant was the driver, plaintiff has failed to come forward with anything to indicate that she has or can ever obtain competent evidence to show them. The record does not disclose any attempt by plaintiff to utilize Rule 56(f) to oppose defendant's motion. On this record, therefore, defendant's motion for summary judgment was properly allowed.

Affirmed.

ARNOLD and WEBB, JJ., concur.