Watts v. Lefler, 190 N.C. 722 (1925)

Dec. 16, 1925 · Supreme Court of North Carolina
190 N.C. 722


(Filed 16 December, 1925.)

1. Evidence — Nonsuit.

Upon a motion as of nonsuit, tbe evidence is construed in tbe light most favorable to tbe plaintiff; and, Held sufficient, in tbis case, to bold tbe father, tbe owner of an automobile, liable for tbe negligence of bis son in driving tbe car with tbe implied authority of tbe father proximately causing a personal injury to another.

2. Automobile — Family Car — Parent and Child — Principal and Agent— Negligence.

Where tbe father of a family keeps a car for tbe use of bis family, and permits bis children to drive it, be is responsible in damages for a personal injury proximately caused to another by tbe negligence of bis son while driving it for his own purposes, when be has theretofore customarily permitted his son, an adult living with him, to .thus use tbe car.

Appeal by plaintiffs from Lane, J., and a jury, August Term, 1925, Cabarrus Superior Court.


Tbe plaintiffs eacb bring a separate action, four in all, to recover damages from the defendants on account of injuries and damages sustained by them. The suits were brought by reason of the alleged negligence of the defendants, Lewis Lefler and his father, A.'P. Lefler. It is contended that Lewis Lefler was driving an automobile, alleged to be his father’s car, for “family purpose,” in a careless, reckless and negligent manner, on the public highway and running into the motor truck upon, which plaintiffs were riding on the said highway. The defendants plead contributory negligence of plaintiffs. The four cases, by consent of parties, were tried together.

Facts: Lewis Lefler, about 21 years old, a son of A. E. Lefler, was driving a Hup touring car, at about 9 :00 o’clock p. m., on 3 August, 1923, on the highway between Concord and Mount Pleasant, about 2 miles from Concord, when the collision took place. W. P. Mabery testified that he was sheriff of Cabarrus County at the time, he went out to where the collision occurred and went after defendant, Lewis Lefler. That he went to his father’s home. That he knocked and Mr. A. E. Lefler answered, that he asked if Lewis was at home, he called and Lewis answered and Mr. Lefler recognized who it was. Mr. Lefler said; “What do you want with him?” I said, “He has had a wreck down the road and there is a crowd of people hurt and I came after him.” The boy never resisted. Mr. A. E. Lefler said: "He has wrecked my *723 Hup"; and be seemed to be worried quite a lot. Tbat be brought tbe boy to town but bis father did not come tbat night. Tbat night or next morning be looked at tbe Hup touring car at Lefler Motor Company, and observed tbat tbe left-hand fender was bent up and tbe pin where you let tbe top back, tbat it rests on, bad some blood and matter on it. Tbat it was at least half past ten, perhaps 11 o’clock when be went to Lefler’s borne.

“Q. At tbe time A. F. Lefler said ‘He has wrecked my Hup,’ you bad not said anything about what car it was? Answer: No, sir.

“Q. You just said there was a wreck? Answer: Yes, sir, I said tbe boy has bad a wreck on tbe road and hurt some people and I have got to take him to town, and be made this remark ‘He has wrecked my Hup.’ ’’

Yoit Barnhardt, testified, in part: “Tbat be knew this Hup car and saw it often; tbat be bad seen A. F. Lefler and different ones of his family riding in it; tbat be bad seen Lewis Lefler driving it."

Buford Corzine, testified, in part: “Tbat be was working for tbe Lefler Motor Company, as salesman, at tbe time of this collision; tbat be bad seen A. F. Lefler riding in tbe Hupmobile five passenger several times; bad seen him riding with bis sons, bis wife and youngest boy, and with Lewis Lefler one time; tbat be saw a five-passenger Hupmobile in tbe shop after this collision, next morning about 11 o’clock; tbe back curtain and. corner of tbe body was damaged some by tbe top carrier, the left-hand corner; tbe left rear fender was bent a little and tbe pin which bolds on tbe top was bent a little, didn’t examine it close.”

H. C. McEachern, testified, in part: Tbat be was a nephew by marriage of A. F. Lefler, be lived about 1% miles by tbe road from A. F. Lefler’s. Tbat tbe day of tbe collision be helped thresh wheat at A. F. Lefler’s with other members of bis family, went there early in tbe morning and got through near sundown. Ate supper. Steve Lefler took him and bis son home in bis Hup car. Tbat A. F. Lefler always bad a Hup, be supposed it was bis. He bad a Hup be used for tbe family. After Steve took him borne, Steve went on to Mr. Nezbit’s. He saw defendant, Lewis Lefler, at bis borne between 8 and 9 o’clock.

“Q. How did be come there? Answer: He brought my daughter and bis brother and some of my wife’s kin-folks from Salisbury. Brought them from Mr. Lefler’s to my house in a Hup automobile.

“Q. Is that the Hup that is kept there by Mr. Lefler? Answer:'Yes, sir."

Tbat be bad seen tbat particular Hupmobile at Mr. Lefler’s in tbe yard, but couldn’t say bow many times. Tbat be bad seen Mr. Lefler, and other members of bis family, riding in bis Hupmobile with Lewis Lefler driving, going to church, etc. Tbat Lewis Lefler was living at bis *724father’s at the time of this collision, was single and had made his home there all his life up to this time. . . . That he did see Lewis Lefler when he left the house of witness, and he was driving this particular Hupmobile at that time. That Steve had his car and gone. . . . Lewis Lefler and witness’ son went off in the Hup together.

At the close of the evidence for plaintiff, the court below granted defendant’s, A. F. Lefler’s, motion for judgment as of nonsuit. The usual issues submitted in such cases, negligence, contributory negligence, and damages, were found by the jury in favor of plaintiffs and against defendant, Lewis Lefler. Defendant, Lewis Lefler, made no appeal. The main controversy is over the nonsuit as to defendant, A. E. Lefler.

Exceptions and assignments of error as to granting the nonsuit and exclusion of evidence, were duly made by plaintiffs and appeal taken to the Supreme Court. The material assignment of error and the necesr sary evidence will be considered in the opinion.

J. L. Crowell and JS. S. Williams for plaintiffs.

M. B. Sherrin and Franlc Armfield for defendant A. F. Lefler.

OlabksoN, J.

The plaintiffs’ assignments of error, as to the exclusion of evidence, will not be considered. The questions may not arise on another trial of the case. The main question we will consider: The court below granting the motion of defendant A. E. Lefler for judgment as in case of nonsuit at the close of the plaintiffs’ evidence. C. S., 567.

The accepted rule is: “On a motion to nonsuit, the evidence is to be taken in the light most favorable to plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom.” Barnes v. Utility Co., ante, 385.

In Allen v. Garibaldi, 187 N. C., 799, it was said: “In fact, it is frankly conceded by the defendant that the decision in Wallace v. Squires, 186 N. C., 339, must be overruled if his motion for judgment as of nonsuit is sustained in the present case. Without deciding whether we shall follow all that was said in that case, it is sufficient for present purposes to state that the ‘family purpose’ doctrine, with respect to automobiles, has been adopted as the law of this jurisdiction in several recent decisions. Robertson v. Aldridge, 185 N. C., 292; Tyree v. Tudor, 183 N. C., 340 (modified in another respect in Williams v. R. R., ante, p. 354); Clark v. Sweaney, 176 N. C., 529; S. c., 175 N. C., 280; Williams v. May, 173 N. C., 78; Taylor v. Stewart, 172 N. C., 203. For an extended discussion of this doctrine, see 33 Tale Law Journal, 780, and note to Arkin v. Page, 287 Ill., 420, as reported in 5 A. L. R., 216.”

*725“'When a ear owner gives it over to tbe use of bis family, and permits it to be operated by tbe dependent members thereof, tbe individuals to wbom it is so entrusted may properly be considered bis agents in such a sense tbat their negligence in tbe use of tbe car is imputable to him even though tbe driver of tbe car is tbe adult son of tbe owner, who is a member of bis family. In courts where tbe ‘family purpose’ rule prevails it does not seem to make any difference whether tbe particular trip was entirely authorized or not as where a father permitted a son to use bis car and knew tbe son -was going to take friends to a dance in a certain town tbe father was liable for gross negligence of tbe son in driving and injuring a guest although they were driving beyond tbe point which was their original destination. As tbe father allowed tbe son to use tbe car for bis pleasure and it was being used for tbat purpose there was no departure from tbat purpose.” Tbe Law Applied to Motor Vehicles- — Babbitt (3 ed.), 1923, sec. 1179.

Berry on Automobiles, (4 ed.), 1924, sec. 1280, says: “Tbe rule is followed in some of tbe states in which tbe question has been decided, tbat one who keeps an automobile for tbe pleasure and convenience of himself and bis family, is liable for injuries caused by tbe negligent operation of tbe machine while it is being used for tbe pleasure or convenience of a member of bis family.” Numerous cases are cited, and among them Wallace v. Squires, supra.

Berry, supra, sec. 1302, says, in part: “It malíes no substantial difference as regards tbe liability of a parent for tbe acts of bis child while tbe latter is operating an automobile kept by tbe parent for family use, whether tbe child is a minor or an adult. Tbe question of liability does not depend upon tbe relation of parent and child, and tbe parent is under no more legal obligation to-supply an automobile for tbe use and pleasure of a minor child than be is for tbe use and pleasure of an adult child. Frequently fathers continue not only to support their children after tbe latter have become sui juris, but to provide them, as members of bis family, with tbe means of recreation and pleasure. Tbe question is whether tbe child, be be an adult or a minor, was acting for -the parent, was using tbe ear for a purpose for which tbe parent provided it, and tbe evidence to support tbe affirmative of this issue is not different when tbe child is an adult than it is when tbe child is a minor.” Marshall v. Taylor, 168 Mo. App., 240; Griffin v. Russell, 144 Ga., 275; Hutchins v. Haffner, 63 Col., 365; King v. Smythe, 140 Tenn., 217. Huddy on Automobiles (6 ed.), 1922, secs. 659-660.

There is a conflict of decisions, but we think tbe great weight sustains tbe position in tbe above cited authorities. Tbe father — tbe owner of tbe automobile and tbe bead of tbe family has tbe authority to say by wbom, when and where bis automobile shall be driven or be can forbid tbe use *726altogether. With full knowledge of an instrumentality of this kind, be turns over the machine to his family for “family use.” When he does this, under the “family doctrine,” which applies in this State, he is held responsible for the negligent operation of the machine he has intrusted to the members of his family.

The evidence, taken in the light most favorable to plaintiff, showed that the Hup mobile, driven at the time of the collision, belonged to A. E. Leflpr. He told the sheriff “He has wrecked my Hup.” Lewis Lefler lived with his father at the time of the collision. When the sheriff went to arrest him, a few hours after the collision, he was at his father’s home and had retired. A. E. Lefler and different members of his family rode in the Hup car. Lewis Lefler was seen driving it. A. E. Lefler rode in the car with his sons, his wife and youngest boy. The day of the collision, A. E. Lefler threshed wheat. H. C. McEachern, who married his niece and who was a neighbor, living 1% miles by the road, went with other members of his family to help him. Went early in the morning and got through near sundown. After supper one of the sons, Steve, took McEachern home in a Hup. Lewis, the defendant, was at McEachern’s home between 8 and 9 o’clock. He brought McEachern’s daughter and his brother and some of McEachern’s wife’s kin-folks from Salisbury, from A. E. Lefler’s house in a Hup automobile, kept by A. E. Lefler at his house. Lewis Lefler and McEachern’s son'left that night together in the Hup automobile shortly before the collision occurred.

We think, under the law, as we construe it, there was some evidence, more than a scintilla, to be submitted to the jury. The credibility and probative force is for the jury.

For the reasons given, the judgment of nonsuit is