Bilyeu v. Beck, 178 N.C. 481 (1919)

Nov. 19, 1919 · Supreme Court of North Carolina

178 N.C. 481

JOSEPH BILYEU v. MRS. FLORENCE BECK.

(Filed 19 November, 1919.)

Negligence — Automobiles—Parent and Child — Principal and Agent — Motions —Evidence—Nonsuit—Trials.

In order to recover of the owner of a car damages caused by his daughter driving it at the time of the injury, there must be evidence that the daughter, experienced therein and more than twenty-one years of age, was acting as the agent of her father at that time, and where the evidence tends only to show that the daughter was acting solely for herself, and not in any manner for her father, the latter may not be held liable in damages; and a motion as of nonsuit is properly allowed.

Appeal by plaintiff from Shaw, J., at tbe May Term, 1919, of Mooee.

Tbis is an action to recover damages for personal injury, alleged to bave been caused by tbe negligence of tbe defendant. ■

Tbe plaintiff was riding a bicycle along a .public road on 23 March, and was injured by being run over by an automobile, driven by tbe daughter of tbe defendant, who was over twenty-one years of age, and an experienced driver.

Tbe plaintiff examined tbe defendant before tbe trial under section 864, et seq.; of tbe Revisal, and tbis examination was introduced in evidence on tbe trial to prove that tbe defendant was tbe owner of tbe car.

Tbe defendant was not in tbe car at tbe time of tbe injury, and there is no evidence that tbe car was being used on any business or mission of the defendant.

At tbe conclusion of tbe evidence bis Honor entered judgment of non-suit, and tbe plaintiff excepted and appealed.

Hoyle & Hoyle, G. H. Humber, and L. B. Clegg for plaintiff.

U. L. Spence for defendant.

Allew, J.

Tbe evidence of tbe negligence of tbe daughter, who was driving tbe automobile, is not satisfactory, but’ conceding that it was sufficient to be submitted to tbe jury, and also that there is evidence that tbe defendant was tbe owner of tbe automobile, these facts alone would not establish tbe liability of tbe defendant for tbe injuries which tbe plaintiff has sustained.

Tbis was expressly decided in Linville v. Nissen, 162 N. C., 99, where it is said, “Tbe owner of an automobile is not liable for personal injuries caused by it merely because of bis ownership”; and, again, “Even if tbe son bad been tbe servant of bis father in driving tbe machine, tbe father would not be liable for bis negligence unless bis son was. at tbe time acting in tbe scope of bis employment and in regard to bis master’s business.”

Tbe responsibility of tbe parent for tbe negligence of thp child of mature years, and of experience as a driver, is not dependent on tbe ownership of tbe machine, but upon tbe principles of agency, express or implied, and in tbis case there is no evidence that tbe daughter was on any mission or performing any service for tbe defendant, her mother.

Tbe two cases on which the plaintiff chiefly relies, Williams v. May, 173 N. C., 78, and Wilson v. Polk, 175 N. C., 490, are easily distinguishable.

In the first, it was in evidence that the father bought a car for the use of his family, and employed on'e Orendorff to teach his minor child to run it, and while in this employment the plaintiff was injured, and in the second, there was evidence that the owner was in the car at the time of the injury, and that it was going on a mission to her farm for her.

In our opinion, the motion for judgment of nonsuit was properly sustained.

Affirmed.