Wilson v. Polk, 175 N.C. 490 (1918)

May 8, 1918 · Supreme Court of North Carolina

175 N.C. 490

W. L. WILSON v. WILLIAM J. POLK and SARAH POLK.

(Filed 8 May, 1918.)

Automobiles- — -Negligence—Evidence — Ownership — Principal and Agent— Chauffeur — Minor Son.

Where the mother is the owner of an automobile which ran into a buggy at night and injured the plaintiff, the guest thereon of another, through the negligence of her 19-year-old son, driving the machine at the time, and the son, with his father, were engaged in the business of the mother, the latter is liable whether she was then in the automobile or not; and evidence of her ownership and that the machine was being driven by her minor son in pursuance of her business is sufficient to take the case to the jury, subject to be rebutted. Lmville v. Nissen, 162 N. C., 101, cited and applied.

Appeal by defendants from Webb, J., at October Term, 1917, of MeckleNbukg.

' This is an action against the feme defendant to recover damages for personal injuries caused by an automobile running down tbe plaintiff, wbo was going borne in a buggy drawn by a mule, in tbe nigbt-time.

From a verdict and judgment in favor of tbe plaintiff tbe defendants appealed.

E. R. Preston and Duckworth & Puhlman for plaintiff.

J. D. McGall and Plummer Stewart for defendants.

ClaRK, C. J.

Tbe evidence for tbe plaintiff is tbat be was a guest in tbe buggy owned by one Thompson, and was on bis way borne at nigbt, wben be was run into by tbe automobile in a bead-on collision; tbat be recognized tbe feme defendant in tbe automobile and spoke witb ber; tbat tbe automobile was driven by ber son, and tbat ber busband was in tbe ■ conveyance at tbe time. It was also in evidence tbat tbe feme defendant listed tbe automobile as ber property on tbe tax list, and tbat license was issued in ber name. Sbe offered evidence tbat sbe was not in tbe automobile, and that she had given her automobile to her son, who had exchanged it for a new one. There was conflict of evidence, on which the jury found that the automobile was owned by the feme defendant and her son.

There was evidence that the defendants were running the automobile at night without headlight, or with defective headlights which did not enable them to see the plaintiff in the buggy, while the defendants offered evidence that the plaintiff’s buggy was on the wrong side of the road and had stopped. This was denied by evidence for plaintiff. The jury found against the defendants as to the negligence which caused the collision. There was no evidence of contributory negligence by the plaintiff, who was a passenger in the buggy.

There was some evidence, irrespective of the evidence of ownership, that the car was being sent out by the wife on a mission to her farm. The court charged on this phase as follows: “If you find the son guilty of negligence, or if you find the husband was guilty of negligence, and find that they were her agents, acting in the employment of the wife and mother, find that she had sent them out to look after her business and sent them in her car, and sent the boy along, he being 19 years of age, if you find he was 19 years of age, and find that he was guilty of negligence, and that he was her agent, acting under her authority, the court charges you that she would be liable just as much as if she were along. But if you find that her husband and son were not acting as her agent, and if you find that she did not send them out to look after her business, and find that she was not along, find she was at home, and find she did not know where they had gone, but knew that they had taken the machine and gone off with it, but not to attend to her business or by her direction, the court charges you that any negligence of her husband or son would not be imputed to her, and it would be your duty to answer the issue No’ as to her. If it was not her car she would not be liable.”

The evidence as recited in the statement of the case is not very full as to the mission to the feme defendant’s farm, but the exception is merely to the charge above given, and not on the ground that there was no evidence to support it. We cannot presume that the jury found the fact without evidence, and if such exception had been set out in the appellant’s statement of the case on appeal, doubtless the evidence in support of that hypothesis would have been recited more fully. The jury absolved the husband from liability, but found against the mother and the son. It is unnecessary to discuss the other exceptions.

From the argument in this case and in others before us, there seems to be some misapprehension as to our ruling in Linville v. Nissen, 162 N. C., 101. The Court did not hold in that case that proof of the ownership of the automobile, and that it was being driven by the minor son of tbe owner was not evidence to go to tbe jury. These are facts wbicb usually call for explanation from tbe defendant owner. Tbe Court beld in tbat case tbat sucb evidence was rebuttable, as in tbat instance by tbe fact tbat tbe son bad been forbidden to use tbe machine and bad taken it out and was using it contrary to bis father’s wishes and without bis knowledge; and tbat tbe mere ownership of tbe automobile of itself would not make tbe owner liable, for personal injuries; tbat a parent was not ordinarily liable for sucb tort of bis minor son (subject to exception where tbe father permitted a child of tender years to run bis automobile), nor would tbe owner be liable for tbe negligence of bis son or any other chauffeur running an automobile unless at tbe time driving tbe machine in tbe scope of bis employment or implied authority. Clark v. Sweeney, at this term.

No error.