Watts v. . 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 *726 altogether. 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 Reversed.