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Booher v. Frue6/5/1990
Cogdill the plaintiff brought suit against her husband and a third party, alleging that defendants were concurrently negligent in their operation of motor vehicles. Plaintiff alleged that her husband failed to keep a proper lookout, drove at excessive speed, suddenly made a left turn across a highway without signaling and that he drove while under the influence of alcohol. At trial plaintiff testified that at the time of the collision her husband's car was in the correct lane, that he was waiting to turn left and that he had signaled his intention to turn left. Plaintiff also recanted her allegations about failing to keep a proper lookout, driving while intoxicated and driving at an excessive speed. The Supreme Court stated that plaintiff's testimony on "concrete facts" was "deliberate, unequivocal and repeated." Cogdill, 290 N.C. at 43, 224 S.E.2d at 611. When "a plaintiff's own testimony has equivocally repudiated the material allegations of his complaint," the trial court should grant defendant's motion for directed verdict. Id. at 44, 224 S.E.2d at 611.
Unlike the testimony in Cogdill, plaintiffs' testimony here was not on "concrete facts" but was in response to conclusory questions regarding legal issues. Although plaintiff Brown stated that she had "never been told anything about Mr. Payne's role" and thought that Frue was just a friend of Booher's, Frue's deposition reveals that he was aware of Ms. Brown's interest and her reliance on Booher to protect their concurrent interests in their son's estate.
Second, there is sufficient evidence, contrary to plaintiffs' depositions, to support the plaintiffs' allegations. The depositions of Frue and Payne tend to show that they traveled to Texas with Booher to help him retain Texas legal counsel and that they had done some work on the case prior to leaving Asheville. Additionally, Booher's deposition contains statements regarding his expectations arising from the defendants' activities while in Texas. Booher testified that he thought Frue and Payne were negotiating with Saunders for the lowest possible fee for him and that he had no knowledge of the arrangement to split the fee between the attorneys. These statements raise a genuine issue whether Payne was working as an attorney for plaintiffs on the trip to Texas.
For the reasons stated, the entry of summary judgment in favor of Payne is reversed and the cause is remanded for trial.
Reversed and remanded.
Disposition
Reversed and remanded.
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