Clark v. . Sweaney

ALLEN, J. dissenting; WALKER, J., concurring in the dissenting opinion. This was an action for damages for personal injury sustained by being struck and seriously injured by defendant's automobile, which was being driven by his son at 45 to 50 miles an hour, according to plaintiff's testimony, as with due care plaintiff was attempting to cross Main Street near the center of the business district of Durham. That the plaintiff was run over and injured and that the defendant was the owner of the automobile, that it was being driven by his son, and that the defendant's wife was in the automobile at the time, also that the defendant immediately came up and ordered his son to carry the plaintiff home in his automobile, are admitted or not controverted. Indeed, the defendant put on no evidence. The plaintiff did not contend that there was any liability on the part of the defendant merely because the chauffeur was his son, but contended that all the circumstances taken together were sufficient evidence to be submitted to the jury upon the question whether the driver, Fred Sweaney, was acting as the servant of his father in the operation of said automobile at the time said injury occurred. That the automobile was owned by the defendant, that the defendant's wife was being conveyed in the machine at the time of the injury, and that the defendant directed his son to take the plaintiff, home was evidence "taken in the light most favorable to the plaintiff, with the most favorable inferences which the jury could draw from it," sufficient to submit the case to the jury for the natural presumption is that one who is employed in operating an automobile is doing so in the service of the owner, especially when the passenger in the machine is the owner's wife. Long v. Neut, 123 Mo. 204, citing Moon v.Matthews, 29 L.R.A. (N.S.), 586. It will be difficult for the plaintiff in such cases to show that the automobile was being driven and operated under the direct instruction of the owner, which was a matter peculiarly in the owner's knowledge. We think it was error to nonsuit the plaintiff. The facts testified to raised a presumption that the machine was being operated in the scope of the defendant's ownership, and it was incumbent upon the defendant who put on no evidence to rebut the presumption. Linville v. Nissen, 162 N.C. 95, relied on by the defendant, is (282) not in point. In that case, there was evidence that though the owner's son was operating the machine, he was not doing so with the knowledge or at the instance of the owner, but in violation of the owner's orders and without his knowledge. That was not a nonsuit, and the Court held that the evidence for the defendant should have been submitted to the jury with an instruction that the owner would not be responsible for the tort of the chauffeur, even though he was *Page 301 the owner's son and a minor, if acting without the owner's authority and wholly for the servant's own purposes and in pursuit of his private or personal ends. The judgment of nonsuit is Reversed.