Byers Ex Rel. Rink v. Brawley

CoNNOR, J. At tbe trial of this action all tbe evidence showed that on 31 December, 1931, tbe defendant J. W. Brawley owned two automobiles, one a Chandler sedan and tbe other a Chrysler sedan; that tbe Chandler sedan was kept and maintained by tbe defendant for use by bis wife, for her business or pleasure, and that tbe Chrysler sedan was kept and maintained by tbe defendant for bis own use. Tbe defendant lives in tbe city of Greensboro, N. C., where be maintains a borne for himself and bis wife. They have no children. Tbe defendant is employed by tbe Pilot Life Insurance Company of Greensboro, N. C. On 31 December, 1931, tbe defendant was in Havana, Cuba. All tbe evidence at tbe trial further showed that on 31 December, 1931, W. R. Lovill, Jr., a nephew of defendant’s wife, was living in defendant’s borne in Greensboro. Tbe mother of W. R. Lovill, Jr., died when be was about 8 years of age, and since her death be has lived in the borne of tbe defendant. On 31 December, 1931, be was about 26 years of age. There was evidence tending to show that both before and after W. R. Lovill, Jr., arrived at tbe age of 21 years tbe relationship *153 between bim and tbe defendant and bis wife was that of a son and father and mother, and that such relationship existed on 31 December, 1931. All the evidence further showed that on the night of 31 December, 1931, in the absence of the defendant from his home in Greensboro, the said ~W. E. Lovill, Jr., asked his aunt, the wife of the defendant, for permission to use the defendant’s Chrysler sedan to take his friends, the plaintiff and Harry J. Byrd, to Mount Airy, N. C., to visit their friend, Miss Edna Ellis. Mrs. Brawley granted the request, and the said W. E. Lovill, Jr., the plaintiff, and Harry J. Byrd left Greensboro at about 7:30 p.m. in the Chrysler sedan. They arrived at Miss Ellis’ home in Mount Airy, N. C., at about 10 o’clock. Some time thereafter the party left Miss Ellis’ home in the Chrysler sedan to go' to a moving-picture show.. At the request of W. E. Lovill, Jr., Harry J. Byrd drove the sedan, with the plaintiff sitting by his side on the front seat, and with ~W. E. Lovill, Jr., and Miss Ellis sitting on the rear seat. By his careless and negligent driving, Harry J. Byrd caused the automobile to swerve to the left side of the highway, to strike a telephone pole, and to turn over. The plaintiff was thereby seriously, painfully, and permanently injured, with the result that she has sustained damages. There was error in the refusal of the trial court to allow defendant’s motion for judgment as of nonsuit, at the close of all the evidence, unless, as contended by the plaintiff, the “Family Purpose Doctrine” is applicable to this case. This doctrine has been recognized and applied in this jurisdiction. See Grier v. Woodside, 200 N. C., 759, 158 S. E., 491. Conceding that there was evidence at the trial of this case tending to show that W. R. Lovill, Jr., was a member of defendant’s family (see McGee v. Crawford, 205 N. C., 318, 171 S. E., 326), in the absence of any evidence tending to show that the automobile in which the plaintiff was riding at the time she was injured by the negligence of the driver was kept and maintained by the defendant for use by members of his family for their business or pleasure, the “Family Purpose Doctrine” is not applicable to this case, for the purpose of imposing liability on the defendant for the damages which the plaintiff sustained as the result of her injuries. Eaves v. Coxe, 203 N. C., 173, 165 S. E., 345. There was error in the refusal of the court to allow defendant’s motion for judgment as of nonsuit. For this error the judgment is Eeversed. Schenck, J., took no part in the consideration or decision of this case.