Matthews v. . Cheatham

Clarkson, J. The material exceptions and assignments of error made by defendants, are as follows: “For that the court erred in refusing to grant defendants’ motion for judgment as of nonsuit at the close of plaintiff’s evidence. For that the court erred in refusing to grant defendants’ motion for judgment as of nonsuit at the close of all the evidence. For that the court erred in refusing to grant defendants’ motion to charge the jury as follows: 'I charge you, gentlemen of the jury, that, if you find the facts to be as testified to by all of the witnesses, it will be your duty to answer the third issue “No.” ’ ” We do not think the exceptions and assignments of error can be sustained. Upon a motion as of nonsuit, all the evidence upon the whole record tending to support plaintiff’s cause of action is to be considered in the light most favorable to plaintiff, and be is entitled to every reasonable intendment thereon and every reasonable inference therefrom. *596 The jury accepted plaintiff’s evidence to be true. The evidence sustained the allegations of the complaint (1st) as to the collision: The plaintiff lived in Rocky Mount, and on the morning of 25 November, 1933, be was going to a farm and bad to pass througb Wilson, N. C. He was driving a Chevrolet automobile with a trailer. He was on Tarboro Street, on the right side, and came to Vance Street and was attempting to cross the intersection when be was injured. When reaching the intersection be bad bis car under control to stop, if necessary, and bad slowed down to 10 miles an hour. He saw a car coming east (in a southeasterly direction) on Vance Street. The car was twice the width of the intersection away when be entered the intersection. He went across the street and just before be cleared it the car driven by the feme defendant hit the right-band door of bis car and turned it over. The blow knocked him out of the car. In bis opinion she was driving 40 miles an hour. Tarboro Street is 37 feet wide and goes east and west, and Vance Street is 30 feet wide and goes north and south. As be entered the intersection the feme defendant was, at the very least, 60 to 70 feet away. She did not reduce her speed or apply her brakes or make any attempt to stop. There was nothing to obstruct her view the entire block. She ran straight into plaintiff’s car when be was almost clear of the street. She did not slacken up a bit, and turned bis car over. The plaintiff further testified: “I was taken to Moore-Herring Hospital at Wilson, and Mr. J. T. Cheatham, the man of whom bis wife ran into me, come in there and took bold of my band and told me bis name and told me it was bis wife’s car, bis car that ran into me, driven by bis wife, and be wanted me to stay there for treatment, and be would take care of the damage; it was her fault.” We think the 'question of contributory negligence on the part of plaintiff was for the jury to determine. The charge of the court below is not in the record, and the presumption of law is that the court charged the law applicable to the facts. The defendants contend that plaintiff testified on cross-examination that be saw the feme defendant, but, notwithstanding that, be ran in front of her and therefore as a matter of law was guilty of contributory negligence. But plaintiff also testified: “I saw Mrs. Cheatham 60 or 70 feet from the intersection. I was in the intersection at that time. I started to pick up. I was almost clear of the street when she bit me. She ran straight into me, did not turn to the right or left. I don’t think she saw my car. If she bad been looking to the front there was nothing to keep her from seeing it. . . . Mrs. Cheatham did not slacken up a bit. She was going 40 miles an hour. It broke my car in two.” *597 This discrepancy was for the jury. Taylor v. Rierson, ante, 185 (189). The presumption of law is that all these matters were left to the jury on a charge free from error. (2) As to the “family purpose doctrine”: E. A. Powers testified, in part: “I know Mr. J. T. Cheatham. The first time I met him was at Herring’s Drug Store in Wilson. I was with Mr. Matthews. Mr. Cheatham’s son was with him. I heard Mr. Cheatham and Mr. Matthews talk together. Mr. Cheatham said that he maintained three automobiles at his home. That this particular car (Ford) that his daughter won it in a contest. He said she did not ever drive except by consent of he and his wife, and he maintained the car the same as the rest of them. ... In fact, he said he paid the taxes on this automobile along with his others, and I think he made the statement that he paid the insurance. I will not be positive.” J. D. Davis testified, in part: “I am in the garage business known as the Davis Auto Company, on Green Street, at Wilson. I know Mr. J. T. Cheatham, Mrs. Cheatham, and Miss Martha Cheatham. I remember the Ford automobile of Miss Cheatham that she won in a newspaper contest. From the time of the winning of the car in November, 1933, I had occasion to service and repair the car at different times. Mr. Cheatham brought the car to me most of the time. Mrs. Cheatham has a few times, I think. I would say Mr. Cheatham brought the car in half a dozen times for servicing, and he paid the bills every time. He paid all the bills on all the cars. He is still a very good customer of mine. I have mostly seen Mr. Cheatham drive the Ford car.” Ernest Barnes testified, in part: “I have seen different members of the family driving it, Mrs. Cheatham mostly. I have seen Mr. Cheat-ham’s daughter driving it and Mrs. Cheatham, but, so far as the others, I would not be positive. That was before the accident.” The evidence succinctly, as to the “family purpose doctrine”: (1) Defendant J. T. Cheatham had a garage at his home in which this car was kept, with two others. (2) His daughter, who owned the car (won in a newspaper contest) was about 16 years old, a minor at the time. (3) Different members of the family drove the car, including the feme defendant. (4) He furnished the gasoline and repaired the car. (5) At the time of the collision the feme defendant had gone for a dress that belonged to the daughter, and was to bring her home from her work. (6) That J. T. Cheatham paid the taxes on the car and returned same in his name. (7) He secured, or attempted to secure, insurance on the car in his own name. (8) That no one used the car without his or his wife’s consent. (9) After the accident he had the title placed in his name. In Watts v. Lefler, 190 N. C., 722, at p. 725, this Court quotes with approval the following statement from Berry on Automobiles (4th Ed.) *598 sec. 1280: “The rule is followed in some of the states in which the question has been decided, that one who keeps an automobile for the pleasure and convenience of himself and family, is liable for injuries caused by the negligent operation of the machine while it is being used for the pleasure or convenience of a member of his family.” Huddy’s Encyclopedia of Automobile Law (9th Ed.), Vol. 7-8, page 324, states the rule: “The person upon whom it is sought to fasten liability under the 'family car’ doctrine must own, provide, or maintain an automobile for the general use, pleasure, and convenience of the family. Liability under this doctrine is not confined to owner or driver. It depends upon control and use.” We think there was sufficient evidence to be submitted to the jury that J. T. Cheatham controlled and used the car as a “family car,” and the family purpose doctrine was applicable to the facts in this case. On this aspect it is presumed that the court below charged the jury on the law applicable to the facts. It is well settled that the “family purpose doctrine” is the law in this jurisdiction. Robertson v. Aldridge, 185 N. C., 292; Wallace v. Squires, 186 N. C., 339; Watts v. Lefler, 190 N. C., 722; Grier v. Woodside, 200 N. C., 759; Eaves v. Coxe, 203 N. C., 173; Lyon v. Lyon, 205 N. C., 326; Byers v. Brawley, 207 N. C., 151. In the judgment of the court below, we see No error. CoNnoe, J., dissents.