Clark v. . Sweaney , 175 N.C. 280 ( 1918 )

AlleN, J.,

dissenting: I think Linville v. Nissen, 162 N. C., 96, is a controlling authority in favor of the defendant, and that the judgment of nonsuit ought to be sustained.

In the Linville case it was held:

1. That the owner of an automobile is not liable for personal injuries caused by it, merely because of his ownership.

2. That the father is not liable for the acts of a minor son (much less reason for liability for the acts of an adult) unless he has approved the acts, or it is shown that the son is his agent or servant.

3. That if the minor son is shown to be the agent or servant of the father, the latter is not liable unless the son was acting at the time in the scope of his employment and in regard to his father’s business.

A nonsuit as to the father was held to be proper, although it was in evidence that the father had bought the machine for the use of himself and family; that the son, a minor, had driven the machine frequently, sometimes with his father present; that the son was a reckless driver; that he had injured two buggies and his father had paid the damages; that on one occasion the father had taken off a wheel to prevent the use of a machine by his son; that he had left the garage unlocked, and his son could get the machine as he wished, and the ground of the ruling was that the father had forbidden the use of the machine on the day of the injury, -which does no more than negative the idea of his consent, which was essential to plaintiff’s case.

In this case the son is an adult, there is no evidence that the machine was bought for the use of the family, or that the son was reckless, or had ever driven the machine before, or that the father knew that he was. using the machine at the time of the injury. The only circumstances claimed to have a tendency to prove agency on the part of the son are that his mother was in the machine, and that the father,- as soon as he-heard of the accident, went to the scene and directed his son to take the-plaintiff, who had been injured, in his automobile to a hospital.

Tbe first is a circumstance wbicb would be present witb any son, although acting against his father’s will, if asked by his mother to take her; and the second is an act of humanity which any man, whether responsible for the injury or not, ought to do, and which ought to be encouraged instead of imputing it to the defendant as evidence of a wrongful act.

There is to my mind a total absence of evidence of agency, or that the son, if an agent, was acting within the scope of his employment, or was about his father’s business. -

I think the Linville case is stronger for the plaintiff than this, and that unless it is overruled, which the Court is not inclined to do, this judgment of nonsuit ought to be affirmed.