Smith v. VonCannon , 17 N.C. App. 438 ( 1973 )

CAMPBELL, Judge.

Agency is a fact to be proved as any other, and where there is no evidence presented tending to establish an agency relationship the alleged principal is entitled to a directed verdict. Lindsey v. Leonard, 235 N.C. 100, 68 S.E. 2d 852 (1952). The directed verdict in favor of defendant Kirk’s Taxi Service, Inc., was therefore proper.

The plaintiffs contend that defendant VonCannon entered their land without permission or consent, that VonCannon is therefore a trespasser, and that he is, as a result of the trespass, strictly liable for all harm caused. Plaintiffs rely on Dougherty v. Stepp, 18 N.C. 371 (1835). We do not concur in the plaintiffs’ theory of this case. On the contrary, it is the opinion of this Court that the defendant VonCannon entered the driveway on plaintiffs’ property as a licensee.

“A licensee is a person who is neither a customer nor a servant nor a trespasser and does not stand in any contractual relation with the owner . . . and who is permitted, expressly or impliedly, to go thereon merely for his own interest, convenience or gratification. ...” Pafford v. Construction Co., 217 N.C. 730, 9 S.E. 2d 408 (1940).

We are of the opinion that the defendant in the instant case was entitled to assume, when he entered plaintiffs’ driveway, that he had the landowner’s consent to do so. In the words of the plaintiff, “My home is out in a remote area at the end of a road and the driveway turns off there at the end of that road into my house.” The license, or consent to enter, may, of course, be denied by the landowner with some expression of intent to that effect, or may terminate where the extent of the privilege is abused by some conduct on the part of the licensee, in which case his continued presence would constitute a trespass.

In the instant case there is neither evidence that VonCan-non knew beforehand that he did not have permission to enter, nor that VonCannon committed any act in abuse of the privilege. Since he is not a trespasser, it is clear that his liability for harm is determined by ordinary principles of tort law; he is liable for injury which is a proximate result of his negligence, or which is intentionally inflicted by him. Compare Smith v. Pate, 246 N.C. 63, 97 S.E. 2d 457 (1957) and Schloss v. Hallman, 255 N.C. 686, 122 S.E. 2d 513 (1961).

Since the plaintiffs’ property damage is not the proximate result of any wrongful conduct on the part of the defendant VonCannon, he is not liable to them for their unfortunate damages.

No error.

Judge Graham concurs. Judge Brock dissents.