Opinion
(Filed 26 March, 1930.)
Master and Servant D b — Where lessee was to use lessor's truck only during day, lessor is not liable for injury caused by defective lights.
Where under the terms of a lease the lessee was to use the lessor's automobile truck only during the day, the lessor is not liable in damages to a third person for an injury caused by defective lights thereon while the lessee was driving the truck at night in violation of the terms of the agreement.
APPEAL by plaintiff from Lyon, Emergency Judge, January Special Term, 1930. From WAKE. Affirmed.
Thos. W. Ruffin for plaintiff.
Robert N. Simms for L. J. Penny and Mrs. L. J. Penny.
The defendant Stancil rented a farm owned by Mrs. L. J. Penny for the year 1929. The rental contract was made by Stancil and L. J. Penny, who represented his wife in the transaction. Penny was to furnish the land, the stock, and one-half the fertilizer. Stancil was to furnish the labor, and the crop was to be divided between them. Stancil hired a Ford truck from Penny in which Stancil hauled cotton pickers to and from the farm. On 19 October, 1928, a collision occurred between the truck, which was driven by Stancil, and a Ford coupe, which was driven by W. L. Dupree. The plaintiff's intestate was injured by the collision and within a short time she died from the effects of her injury. The plaintiff brought suit to recover damages for her wrongful death. At the close of her evidence her counsel admitted that she had no cause of action against Dupree; the judge dismissed the action against L. J. Penny and his wife, and the plaintiff took a voluntary nonsuit as to Stancil.
The plaintiff contends that there was error in ordering a nonsuit as to L. J. Penny. The contention is based upon the theory that Penny owned the truck; that he knew it had no lights; that it could not be safely operated at night; and that the owner is liable for injuries caused by the negligence of the lessee. It is needless to consider this proposition of laws for the reason that the plaintiff's evidenced shows that according to the agreement between Penny and Stancil the truck was to be operated only in daytime when there would be no occasion for using the lights. If Stancil was negligent in operating the truck in breach of his agreement his negligence cannot be imputed to Penny, who contracted to prevent the negligence which resulted in the intestate's injury.
Judgment affirmed.