Summary
In Branch v. Dempsey, 265 N.C. 733, 145 S.E.2d 395 (1965), in reference to a similar statute, G.S. 130-73 (now recodified as G.S. 130-66 (b)), it is stated, "The purpose of the statute appears to be to permit the death certificate to be introduced as evidence of the fact of death, the time and place where it occurred, the identity of the deceased, the bodily injury or disease which was the cause of death, the disposition of the body and possibly other matters relating to the death."
Summary of this case from State v. HamiltonOpinion
Filed 15 December, 1965.
1. Automobiles 52 — While the evidence must be considered in the light most favorable to plaintiff on motion to nonsuit, if plaintiff seeks to hold the employer liable under the doctrine of respondeat superior, the evidence must be sufficient to permit the inference that the employee was negligent and acted under circumstances such as to impose liability upon the employer.
2. Automobiles 54f — The effect of G.S. 20-71.1 is to make proof of ownership prima facie proof of agency, and a statement in a motion for change of venue that movant was the owner of one of the vehicles involved in the collision is sufficient to present the question of agency to the jury, but the statute raises no presumption of negligence, and in order to hold the owner liable the plaintiff must introduce evidence competent as against the owner that the driver was negligent and that such negligence was the proximate cause of the injury.
3. Principal and Agent 4 — Statements of the alleged agent are incompetent to prove the fact of agency.
4. Automobiles 54e; Evidence 31 — G.S. 20-71.1 does not render post rem admission of agent competent against principal. There was no evidence that the driver of the vehicle involved in the collision made any statement at the scene of the collision or en route to the hospital, but a patrolman testified that he talked to the driver at the hospital and later at the police station and that the driver made a statement to the effect that the accident occurred in a certain manner as he was attempting to make a left turn from the highway into a driveway. There was no evidence of agency except the prima facie case arising by virtue of G.S. 20-71.1. Held: The driver's statement was not a part of the res gestae and there being no evidence that the statement was made in the discharge of any authority conferred upon the driver by the owner of the vehicle, the statement of the driver is incompetent against the owner to prove negligence of the driver.
5. Same — Neither G.S. 20-166 nor G.S. 20-166.1 nor G.S. 20-166.1 (e) has the effect of rendering, the statement made by the driver of a vehicle subsequent to the accident in suit competent as against the registered owner of the vehicle to prove negligence or proximate cause.
6. Automobiles 41h — Testimony of a statement of the driver to the effect that when he attempted to make a left turn from the highway into a private driveway the motor of the truck stalled, and that while the truck was in gear he undertook to start the motor, causing it to lunge forward immediately into the path of a vehicle approaching from the opposite direction, held sufficient to be submitted to the jury on the issue of the driver's negligence, it being for the jury to determine whether the driver in fact made the statement and whether it correctly recounted what occurred and whether the inference of negligence should be drawn therefrom.
7. Automobiles 55.1 — Evidence permitting the conclusion that a vehicle was in good condition approximately 30 minutes prior to the collision in suit, that it was involved in a collision with defendant's vehicle, and that immediately thereafter it was damaged about its front so that it was of no value except for salvage, is amply sufficient to support a finding that the damage was the result of the collision.
8. Death 1 — Evidence tending to show that approximately 30 minutes before the collision in suit testate was in good health and sound physical condition, that immediately after the collision he was found dead, strapped in the driver's seat of his car, with injuries about his face, shoulders and chest, that the steering wheel of his vehicle was bent upward, and that his head was hanging forward upon his chest and, unless held in position, would fall about, held sufficient to support the inference that testate's death was the result of the collision.
9. Pleadings 25 — The trial court has the discretionary power to permit an amendment to a motion to correct an asserted typographical error.
10. Same; Evidence 44 — A medical expert may not testify as to the cause of death based solely upon a purely superficial examination of the body of one whom the expert had not theretofore seen, since his testimony must be based upon facts within his own knowledge brought out in evidence or upon hypothetical facts embodied in proper questions.
11. Death 1; Evidence 24 — A certified copy of a death certificate is competent in evidence to prove the fact of death, the time and place where it occurred, the identity of the deceased, the bodily injury or disease which was the cause of death, the disposition of the body, and other matters relating to the death, but statements from unidentified sources repeated or summarized therein by the coroner are incompetent is evidence. G.S. 130-73.
12. Trial 17 — Where a document is offered in its entirety and portions of it contain incompetent matter, the ruling of the court excluding it from evidence will not be held for error.
APPEAL by plaintiff from Bundy, J., February 1965 Session of BERTIE.
Jordan and Toms, Douglass and Douglass and John R. Jenkins, Jr., for plaintiff appellant.
Pritchett Cooke, Cherry Cherry, Broughton Broughton for defendant Simons.
Jones, Jones Jones for defendant Dempsey.
PARKER. J., concurring in part and dissenting in part.
DENNY, C.J., Joins in the opinion of PARKER, J.
SHARP, J., concurring in part and dissenting in part.
This is an action for the wrongful death of Dr. Douglas M. Branch, General Secretary-Treasurer of the North Carolina Baptist State Convention, and for damages to his 1961 Dodge station wagon, both alleged to have resulted from a collision between the station wagon and a 1956 Ford truck owned by the defendant Simons and driven by the defendant Dempsey.
In substance, the complaint alleges: On 1 February 1963, at approximately 1:30 p.m., Dr. Branch was driving his 1961 Dodge station wagon southwardly and on his right side of U.S. Highway 13, approximately half a mile north of Ahoskie. At the same time the 1956 Ford truck owned by Simons was being driven northwardly upon the highway by the defendant Dempsey in performance of his duties as agent of Simons. Dempsey drove the truck negligently in that, among other things, he drove it when it was in a defective condition and, suddenly and without warning, attempted to make a left turn into a private driveway and drove directly into the path of the Branch vehicle when it was so near as to make a collision inevitable, thereby causing the truck and station wagon to collide with the result that Dr. Branch was killed and his station wagon damaged. The defendant Simons was also negligent in that he permitted Dempsey to drive his truck when he knew Dempsey to be an incompetent and careless driver and the truck to be in a defective condition.
The defendants filed separate answers which are identical, except as noted. Each denies all allegations of negligence. Each admits that Simons was the owner of the truck which bore 1963 North Carolina license plate 5349-RC. Each admits that Dr. Branch died on 1 February 1963, and that the plaintiff is the duly qualified executrix of his estate. Each admits that, at the place in question, U.S. Highway 13 is a paved two lane highway running from north to south and is straight, level, and unobstructed for a considerable distance in either direction with a white center line dividing the two lanes of traffic. Each denies all other allegations of the complaint except that Simons in his answer admits "he is advised that there was a collision on U.S. Highway 13 near Ahoskie, North Carolina, on February 1, 1963, involving a truck of this defendant and another motor vehicle." Each answer pleads, as a further defense, contributory negligence by Dr. Branch in operating his vehicle without adequate brakes, without keeping a proper lookout, at a greater speed than was lawful and prudent under the circumstances, without having his vehicle under proper control and without using or applying the brakes thereon.
The action was originally instituted in Wake County, and was removed to Bertie County for trial on motions filed by the defendants which were identical except as noted. Both motions were offered in evidence by the plaintiff. Each stated:
"(1) That this is an action for alleged wrongful death, said action being brought by Jessie W. Branch, Executrix of the Estate of Douglas M. Branch, and said alleged cause of action arose out of an automobile collision occurring on the first day of February, 1963, in Hertford County, North Carolina, on U.S. Highway 13 at a point approximately five-tenths of a mile north of the Town of Ahoskie in Hertford County, North Carolina; that said collision involved an automobile being operated by the deceased who was traveling alone, and a truck owned by [Simons] * * * and operated by [Dempsey] * * *.
* * *
"(4) That as herein indicated, this is an action for alleged wrongful death and it is not in dispute that the deceased met his death as a result of the accident * * *." (Emphasis supplied.)
Dempsey further stated in his motion:
"(7) That as a result of the collision between the two vehicles referred to above, this defendant sustained serious personal injuries * * * [and] intends to assert a counterclaim for personal injuries against the estate of the deceased; * * *."
When these motions were offered in evidence each defendant was permitted, over objection, to amend paragraph four of his motion, by changing the word "not" to the word "now," on the ground that the original word was a typographical error. Counsel for the plaintiff then read to the jury paragraph four of each motion as originally written.
The plaintiff then introduced evidence tending to show the age, employment, earning capacity, habits, health and life expectancy of Dr. Branch, the damage done to his station wagon and its value immediately before and after the collision. She also introduced evidence tending to show:
Dr. Branch was last seen alive a few minutes after 1:00 p.m. on the day of his death, at which time he was in good health and physical condition. At approximately 1:30 p.m., at the scene of the alleged collision, his body was found in the driver's seat of his severely damaged station wagon with the safety belt fastened. There was no indication of life. The steering wheel was bent upward and the dash was dented. The windshield was broken on the driver's side. Dr. Branch's head was hanging with his chin upon his chest, there was blood upon his face and his nose had been damaged. His hands were hanging down beside him. In removing his body from the vehicle it was necessary to support his head so that it would not fall about. Upon arrival at the hospital, at approximately 2:00 p.m., he was pronounced dead by the examining physician. There were abrasions upon the chest, a bruise upon the right shoulder and bones grated in the right arm when it was moved.
The highway was wet from a light rain. There was no intersection of highways at the point of the alleged collision but private driveways led into the highway from both sides, this being a residential section. The Branch vehicle was found stopped, headed south upon its right side of the road. It was badly damaged, the front end, fender, hood and bumper were bent. The truck was on its right of the center of the road, its front end being about 10 feet from the Branch vehicle. The right front, right fender, right wheel, bumper and hood of the truck were damaged. Debris, composed of broken glass and dirt, lay on the highway in the southbound (Branch) lane of traffic. Dempsey was at the scene when the investigating highway patrolman arrived, approximately 15 minutes after the collision. He rode from there to the hospital in the ambulance with the body of Dr. Branch and the ambulance crew. There is no evidence that he made any statement at the scene of the collision or en route to the hospital. The patrolman talked to him at the hospital and later at the police station. Without stating in which of these conversations the statement was made, or how long after the accident, the patrolman was permitted to testify, over objection by Simons, as follows:
"I asked Delhart Dempsey what happened, and here is what he told me. He stated he was headed north on U.S. 13 and was in the process of making a left-hand turn into the private driveway and the truck stalled on him. Said he was making a left-hand turn, and he tried to crank his truck again and it caught, lunged forward and cut off again.
"Q. Then what happened?
"A. It caught, lunged forward, cut off again, and then the vehicles struck."
The Court instructed the jury that what Dempsey told the patrolman was to be considered only as against Dempsey and not as to Simons. To this ruling the plaintiff did not object and she does not assign it as error.
Neither Dempsey nor Simons was called as a witness. The plaintiff introduced in evidence the registration certificate for the truck, showing it was registered in the name of Simons, ownership of the truck by Simons being admitted in the answer of each defendant. With the exception of the coroner's report, mentioned below, no other evidence was offered to show the existence of the relation of principal and agent between Simons and Dempsey, the scope of the agency, if any, or the purpose for which Dempsey was driving the truck.
The witness Brauer was driving north on Highway 13. He observed the truck on his left side of the road, his attention being attracted by steam rising. The truck then went backward a few feet and he observed the Branch station wagon for the first time. There was nothing between the two vehicles, both of which were badly damaged. The steam which he observed was coming from the truck.
The plaintiff also offered in evidence a certified copy of the death certificate and a certified copy of the coroner's report. On objection both documents were excluded. The plaintiff put in evidence a subpoena served on the coroner which showed that he was in the hospital.
The death certificate, signed by the coroner, contained, among other things, the statement:
"DEATH WAS CAUSED BY: * * * (a) Broken neck and other bruises of chest and abdominable [sic] cavities. * * * DUE TO (b) Auto wreck on Highway 13 near Ahoskie, N.C. * * * Hit head-on with truck. * * * Deceased passenger car ran into truck making left turn."
The coroner's report contains the statement: "Cause of death: BROKEN NECK, INTERNAL BREAKS IN CHEST cavity." It further contains the coroner's statement of his findings that Dempsey was driving the truck, the purpose for which he was driving it, and the damage done to the Branch vehicle. It also sets forth purported statements by the defendant Dempsey to the coroner with reference to the manner in which he was driving the truck immediately before the alleged collision.
From a judgment of nonsuit as to each defendant, entered at the close of the plaintiff's evidence, the plaintiff appeals, assigning as error the granting of the defendant's motions for such judgment, the exclusions of the certified copy of the death certificate and of the above portions of the certified copy of the coroner's report, the exclusion of certain proposed testimony by the physician who examined Dr. Branch's body and the action of the court in permitting each defendant to amend his motion for change of venue, as above stated.
Upon a motion for judgment of nonsuit the evidence of the plaintiff, together with all reasonable inferences to be drawn therefrom, must be taken to be true and must be interpreted in the light most favorable to the plaintiff. Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E.2d 338; Ammons v. Britt, 256 N.C. 248, 123 S.E.2d 579. However, in order to survive such motion by Dempsey, the evidence, when so construed, must be sufficient to sustain the burden which rests upon the plaintiff of proving negligence by the defendant Dempsey and that such negligence was the proximate cause of the death of Dr. Branch or of the damage to the station wagon or both. To survive such motion by Simons, the evidence, so construed, must also show that Dempsey was driving Simon's truck under such circumstances as to impose legal liability upon Simons for Dempsey's negligence.
Each defendant in his answer admits that Simons was the owner of the Ford truck. A certified copy of the registration of the truck with the North Carolina Department of Motor Vehicles was introduced in evidence by the plaintiff and so shows.
G.S. 20-71.1 provides that in an action to recover damages for injury to property or for injury to or the death of a person, arising out of an accident or collision involving a motor vehicle, "Proof of the registration of a motor vehicle in the name of any person, firm, or corporation, shall for the purpose of any such action, be prima facie evidence of ownership and that such motor vehicle was then being operated by and under the control of a person for whose conduct the owner was legally responsible, for the owner's benefit, and within the course and scope of his employment." (Emphasis added.) Proof of ownership, which is here admitted by the pleadings, is also prima facie proof of agency. Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767. This statute creates no presumption and gives rise to no inference as to the existence of any agency relation before the operation of the vehicle begins or after it stops. It makes no reference to any authority of the driver to affect the owner's liability to other persons otherwise than by the driver's conduct in the operation and control of the vehicle.
There being no evidence to rebut this prima facie proof, the plaintiff's evidence is sufficient to show that, if Dempsey was driving the truck, he was the agent of Simons and was driving in the course of his employment so as to impose upon Simons legal liability for any negligence by Dempsey in such driving which was the proximate cause of the death of Dr. Branch or of damage to the station wagon. Howard v. Sasso, 253 N.C. 185, 116 S.E.2d 341. It, of course, remains for the plaintiff to show, by evidence competent against Simons, that the driver was negligent.
It is, indeed, elementary that if an agent is negligent in the performance of an act in the course of his employment and such negligence is the proximate cause of the death of a third person, the principal, or master, is liable in damages without any showing of negligence on the part of the principal, himself. However, it is equally well settled that judgment may not be recovered against either the agent or the principal until the plaintiff introduces evidence competent against that defendant and sufficient to support a finding of each fact upon which the liability of that defendant depends.
Dempsey, the agent, is not liable for the death of Dr. Branch, unless (1) Dempsey was negligent in the operation of the truck and (2) his negligence was the proximate cause of the death. Unless there is in the record evidence, competent against Dempsey, to prove both of these essential facts the judgment of nonsuit against Dempsey should be affirmed.
Simons, the principal, is not liable for the death of Dr. Branch unless (1) at the time of the collision the relation between Simons and Dempsey was such as to make Simons legally responsible for Dempsey's acts and omissions in the operation and control of the truck, (2) Dempsey was negligent in such operation or control, and (3) this negligence was the proximate cause of the death. Unless there is in the record evidence, competent against Simons, to prove each of these essential facts the judgment of nonsuit against Simons should be affirmed.
By the force of G.S. 20-71.1 there is sufficient evidence to support, but not compel, a finding for the plaintiff against Simons on the first of these essential facts, but that is the full effect of this statute. Before the plaintiff may recover from Simons, she must prove, by evidence competent against him, that Dempsey was negligent and that his negligence was the proximate cause of the death.
If the plaintiff had elected to sue only Simons, the principal, as she might have done, it would be obvious that she could recover only upon the basis of evidence, competent as against him, to show these three basic facts. Even if she had first sued Dempsey, the agent, and had obtained a judgment against him, the matter of his negligence would not be deemed res judicata in a subsequent action by her against Simons, the principal. Pinnix v. Griffin, 221 N.C. 348, 20 S.E.2d 366; Gadsden v. Crafts, 175 N.C. 358, 95 S.E. 610. In the Pinnix case Barnhill, J., later C.J., speaking for the Court, said:
"It is an obvious principle of justice that no man ought to be bound by a proceeding to which he is a stranger. Hence, a judgment against the agent is not conclusive in an action against the principal."
If a judgment against the agent, judicially determining that his negligence was the proximate cause of the plaintiff's injury, is not sufficient to establish the principal's liability under the doctrine of respondeat superior, surely mere evidence of his negligence will not be sufficient for that purpose unless it be evidence competent against the principal. Suing both the principal and the agent in the same action is merely for convenience. It does not change the facts essential for recovery or the applicable rules of evidence.
In Anderson v. Office Supplies, 234 N.C. 142, 66 S.E.2d 677, Barnhill, J., later C.J., again speaking for the Court, said:
"That the declarations of Dockery [the driver] made immediately after the collision were admitted only as against him does not affect the result as to the corporate defendant. It is not alleged that the corporate defendant committed any act of negligence. As to it, plaintiff relies on the doctrine of respondeat superior. If, upon consideration of all the evidence, the jury shall find that plaintiff suffered injuries as a proximate result of the negligence of Dockery, then Dockery's negligence will be imputed to the corporate defendant, thus imposing liability upon it for the injuries sustained."
It appears from the report of the Anderson case that there the statement of the driver admitting his negligence was made immediately after the collision and so might well have been admitted as evidence against the employer on the ground that it was part of the res gestae. 20 Am. Jur., Evidence 676. Furthermore, an examination of the record in that case discloses that there the plaintiff himself, testified as to the negligent act of the driver. Thus, in the Anderson case there was ample evidence, competent against the owner-principal, to support a finding that his agent was negligent and that such negligence was the proximate cause of the plaintiff's injury, so the reversal of the judgment of nonsuit as to the principal was proper. The Anderson decision does not support the proposition that such a judgment as to the principal should be reversed when there is evidence of negligence competent against the agent but no such evidence competent against the principal. In the latter situation, though the agent may be held liable the principal may not be so held. This is not in conflict with, or an erosion of, the doctrine of respondeat superior. It is simply a refusal to apply that doctrine where, as against the principal, there is no evidence of a fact which is an essential element of the doctrine.
Two years after the Anderson case, Barnhill, J., later C.J., again speaking for the Court, said in Hartley v. Smith, supra, with reference to G.S. 20-71.1:
"[T]his Act was designed and intended to, and does, establish a rule of evidence which facilitates proof of ownership and agency in automobile collision cases where one of the vehicles is operated by a person other than the owner. It was not `enacted and designed to render proof unnecessary,' nor does proof of registration or ownership make out a prima facie case for the jury on the issue of negligence. Neither is it sufficient `to send the case to the jury,' or `support a finding favorable to plaintiff under that first (negligence) issue,' or `to support a finding against a defendant' on the issue of negligence. * * *
"Non constat the statute, it is still necessary for the party aggrieved to allege both negligence and agency in his pleading and to prove both at the trial."
Each defendant in his answer denies that Dempsey was driving the truck, denies that any collision occurred between the truck and the Branch vehicle, denies all allegations of negligence by either defendant and denies that the death of Dr. Branch and the damage to the station wagon resulted from any negligent act or omission of either defendant.
No witness testified that Dempsey was driving the truck. There was testimony that he was present at the scene and that he had suffered some cuts for which he was taken to the hospital and treated. The investigating patrolman testified to statements made to him by Dempsey to the effect that Dempsey was driving the truck. In his motion for change of venue, which the plaintiff introduced in evidence in its entirety, although the record indicates that only the fourth paragraph thereof was read to the jury, Dempsey stated that there was a collision between the two vehicles, that he was operating the truck and that in the collision he, himself, sustained personal injuries for which he then intended to file a counterclaim. This is sufficient evidence to justify the jury in finding, as against Dempsey, that Dempsey was driving the truck.
It is not, however, such evidence as against Simons, as the court below instructed the jury with reference to Dempsey's statements to the patrolman. As to Simons, the fact that Dempsey was driving the truck is the only basis for a finding of the alleged agency, there being no other proof of it. Extra-judicial statements by the alleged agent, as distinguished from testimony by him, are not admissible against the alleged principal to prove agency. Sealey v. Insurance Co., 253 N.C. 774, 117 S.E.2d 744; Commercial Solvents v. Johnson, 235 N.C. 237, 69 S.E.2d 716.
However, the plaintiff also introduced in evidence Simons' own motion for change of venue in which Simons stated: "[S]aid collision involved an automobile being operated by the deceased who was traveling alone and a truck owned by this defendant who lived in Hertford County and operated by one Delhart Dempsey, a co-defendant who also resides in Hertford County." This admission by the defendant Simons is sufficient, as against him, to permit a finding that Dempsey was driving the truck and, therefore, to bring into operation the statutory provision making such prima facie proof that Dempsey was the agent of Simons and was driving the truck in the course of his employment as such agent.
In addition to these admissions by the defendants, the plaintiff's evidence as to the physical condition of the two vehicles, found 10 feet apart on the highway with nothing between them, plus the testimony of the witness Brauer that he saw the truck in the southbound lane of traffic, observed steam rising from it, saw it roll back and immediately observed the Branch vehicle and noted that both were severely damaged, is ample evidence to justify a finding that the two vehicles collided.
The defendants, of course, offered no evidence in view of the granting of their motions for judgment of nonsuit. In the present record there is no evidence whatever of any negligence by Dr. Branch in the driving of his station wagon. After the collision, his vehicle was found on its right side of the center line of the highway. The debris was found on his right side of the center line. The truck was observed on its left of the center line before it rolled back.
The investigating highway patrolman testified that after they had left the scene of the collision he talked with Dempsey and Dempsey stated that he, Dempsey, was in process of making a left turn into a private driveway and the truck stalled, whereupon he "tried to crank his truck again and it caught, lunged forward and cut off again * * * and then the vehicles struck." Dempsey, himself, was not called as a witness. Upon objection by Simons the court admitted the testimony as to this statement by Dempsey but stated that it was to be considered as against Dempsey only. This ruling is not now assigned as error.
Assuming this statement to have been made by Dempsey, it was made after his driving of the truck had ended and he had left the scene of the collision. It does not appear from the record whether it was made at the hospital or during the course of a subsequent interview at the police station, the time of which does not appear.
There is nothing in the record to indicate any authority given by Simons to Dempsey to make any statement. There is no evidence of any agency whatever except by virtue of G.S. 20-71.1. In the absence of evidence of agency, apart from the mere act of driving a motor vehicle registered in the name of another, the agency must be deemed to have terminated when the driver has brought the vehicle to a final stop and has left it. This Dempsey did before he had any conversation with the patrolman.
In Hubbard v. Railroad, 203 N.C. 675, 166 S.E. 802, Stacy, C.J., speaking for the Court, said:
"It is the rule with us that what an agent or employee says relative to an act presently being done by him within the scope of his agency or employment, is admissible as a part of the res gestae, and may be offered in evidence, either for or against the principal or employer, but what the agent or employee says afterwards, and merely narrative of a past occurrence, though his agency, or employment may continue as to other matters, or generally, is only hearsay and is not competent as against the principal or employer."
In addition to the authorities there cited in support of this well established rule, see: Teague v. Power Co., 258 N.C. 759, 129 S.E.2d 507; Howell v. Harris, 220 N.C. 198, 16 S.E.2d 829; Hester v. Motor Lines, 219 N.C. 743, 14 S.E.2d 794; Stansbury, North Carolina Evidence, 169; 20 Am. Jur., Evidence, 599.
If this be a correct statement of the law as to the admissibility of a statement by one whose general employment by the principal continues to the time of the statement, it applies with even more force to one whose employment, if any, is for the sole purpose of driving a motor vehicle upon a single trip and whose driving, and employment, terminated before the statement was made.
In making the statement in question to the investigating highway patrolman, Dempsey was not acting pursuant to any authority conferred upon him by Simons. He was performing no duty imposed by law upon Simons.
G.S. 20-166 requires the driver of a vehicle, involved in an accident or collision resulting in injury or death to any person, to stop, render reasonable assistance and give certain specified information to the occupant or driver of the vehicle collided with, but the statute does not require a statement by him as to how he was driving or what caused the collision.
G.S. 20-166.1 requires the driver of any vehicle involved in a collision, resulting in injury or death of any person, to give notice of the collision to police officers (in this case to the Highway Patrol) and within 24 hours to make a written report to the Department of Motor Vehicles upon a form supplied by it. These are duties which the law imposes upon the driver, not upon the owner. In performing them, if he did, Dempsey was not acting on behalf of Simons but for himself. Furthermore, whatever statement he made to the investigating patrolman after leaving the scene of the collision was not shown to have been made in the performance of these statutory duties. It is also to be noted that this statute provides that the reports required by it of the driver "shall not be used in any manner as evidence, or for any other purpose in any trial, civil or criminal, arising out of such collision" except in a respect not involved here.
G.S. 20-166.1 (e) makes it the duty of the State Highway Patrol to investigate all collisions required to be reported to it by this section, and requires the investigating officer to make his report in writing to the Motor Vehicle Department, which report is open to inspection by the public. However, this statute contains no provision requiring a driver involved in such a collision to make any statement to the officer.
It cannot, therefore, be said that, by virtue of these statutes, one who registers the title of a motor vehicle in his name thereby gives blanket authority to whomsoever may subsequently drive it to make statements as to the manner of his driving so as to cause such statements to be competent in evidence against the registered owner as vicarious admissions of negligence for which he is legally liable.
Apart from this extra-judicial statement by Dempsey, there is no evidence as to how the collision occurred or as to the manner in which either vehicle was being operated prior thereto. There is, therefore, no evidence as against the defendant Simons of any negligence by the driver of his truck. Consequently, the judgment of nonsuit as to Simons was proper.
As to the defendant Dempsey, his statement to the patrolman is sufficient to permit an inference that Dempsey undertook to start the stalled truck while it was in gear and thereby caused it to lunge forward immediately in front of the Branch vehicle. This would constitute negligence in the operation of the truck. It would, of course, be for the jury to determine whether Dempsey in fact made such statement, whether it correctly stated what occurred, and whether, from it, such inference should be drawn. However, upon a motion for nonsuit his statement must be deemed true and all reasonable inferences therefrom favorable to the plaintiff must be drawn.
The plaintiff's evidence tends to show that the station wagon of Dr. Branch was in good condition approximately 30 minutes prior to the collision and immediately thereafter was observed to be damaged about its front so that it was of no value except for salvage. The evidence is amply sufficient to permit a finding that the damage to the Branch vehicle was the result of the collision between it and the truck, which collision was proximately caused by the negligence of Dempsey.
The plaintiff's evidence tends to show that approximately 30 minutes before the collision Dr. Branch was in good health and sound physical condition. It tends to show that immediately after the collision he was found dead, strapped in the driver's seat, having sustained injuries about the face, shoulders and chest and broken bones in the area of the right arm. It tends to show that the steering wheel of his vehicle was bent upward, the dash was dented and the windshield broken out where his head would have struck if he was thrown forward against it. It tends to show that when he was found his head was hanging forward upon his chest and, unless held in position, would fall about. This is sufficient evidence to support an inference that his death was the result of the collision. Whether such inference should be drawn is, of course, a question to be determined by the jury. For the purpose of the judgment of nonsuit, it must be drawn.
As to the defendant Dempsey, there is in the record evidence sufficient to permit a jury to find that he was negligent in the driving of the truck, that such negligence was the proximate cause of a collision between the truck and the vehicle driven by Dr. Branch and that as a result of such collision Dr. Branch came to his death and his vehicle was damaged. That being true, it is for the jury to determine whether these were the facts. The granting of the motion for judgment of nonsuit as to the defendant Dempsey was, therefore, error.
There was no error in permitting each defendant to amend his motion for change of venue on the ground of correction of a typographical error. See McIntosh, North Carolina Practice and Procedure, 2d Ed., 1283.
The assignments of error relating to the exclusion of proposed testimony by the physician who examined the body at the hospital are without merit. He testified that he made a "purely superficial examination," and that he had not seen the deceased prior to his death. This did not qualify him to express an opinion as to the cause of death upon the basis of his own findings. The questions were not in proper form to permit him to do so on the basis of an hypothesis. They did not recite the nature of injuries which the witness was to consider in forming and stating such opinion. "The rule is that an expert `must base his opinion upon facts within his own knowledge, or upon the hypothesis of the finding by the jury of certain facts recited in the question.'" Service Co. v. Sales Co., 259 N.C. 400, 413, 131 S.E.2d 9.
The remaining assignment of error relates to the exclusion from evidence of a certified copy of the death certificate, a certified copy of the coroner's report and certain portions of such report. Since there must be a new trial of the action against Dempsey, the competency of this evidence should be determined.
G.S. 130-73 provides: "Any copy of the record of a birth or death, properly certified by the State Registrar, shall be prima facie evidence in all courts and places of the facts therein stated."
It has been suggested that the statute does not provide that opinions or conclusions appearing in a death certificate shall be prima facie proof of the cause of death. Rees v. Insurance Co., 216 N.C. 428, 5 S.E.2d 154; Blalock v. Durham, 244 N.C. 208, 92 S.E.2d 758. In neither of these cases was it necessary for the court to determine the extent, if any, to which a death certificate may be introduced in evidence to show the cause of death. In Flintall v. Insurance Co., 259 N.C. 666, 131 S.E.2d 312, suit was brought on a policy of life insurance which excepted death from certain causes. The death certificate and the attached report of the coroner who, as in the present case, was not a physician, stated the cause of death was "unknown." It does not appear that objection was interposed to the introduction of these documents. This Court said: "[W]hen the defendant introduced in evidence the proof of death filed by the plaintiff, and the coroner's certificate of death, they were sufficient to show that the cause of death was undetermined."
The purpose of the statute appears to be to permit the death certificate to be introduced as evidence of the fact of death, the time and place where it occurred, the identity of the deceased, the bodily injury or disease which was the cause of death, the disposition of the body and possibly other matters relating to the death. We think it was not the purpose of the Legislature to make the certificate competent evidence of whatever might be stated thereon. The death certificate offered in the present case contains statements from unidentified sources as to how the collision between the Branch vehicle and the truck occurred. The coroner who signed it did not see the accident. Had he been called as a witness, he could not have related such hearsay. It does not become competent evidence by reason of its being repeated or summarized in the death certificate signed by him. Since the document was offered in its entirety and portions of it were not admissible, the court did not err in excluding it.
For the same reason, there was no error in the exclusion of the certified copy of the coroner's report or of those portions thereof which were offered after the entire report was excluded. These portions included statements as to what the coroner "learned" from inquiries to unidentified persons, and the coroner's conclusion as to what the deceased knew with reference to the collision. Had the coroner been called as a witness, testimony by him as to these matters would not have been admissible. They do not become so when incorporated into his official report.
Reversed as to the defendant Dempsey.
Affirmed as to the defendant Simons.