Small v. Mallory , 250 N.C. 570 ( 1959 )

108 S.E.2d 852 (1959) 250 N.C. 570

Boyce E. SMALL
v.
Louise Threadgill MALLORY.

No. 612.

Supreme Court of North Carolina.

June 12, 1959.

Stern & Rendleman, Greensboro, for plaintiff appellee.

Martin & Whitley, High Point, for defendant appellant.

WINBORNE, Chief Justice.

The sole question presented for decision on this appeal challenges the correctness of the ruling of the trial court in overruling defendant's motion for judgment as of nonsuit at the close of plaintiff's evidence. In connection therewith it is appropriate to say that the "family purpose doctrine" with respect to automobiles has been adopted as the law in this jurisdiction, and applied in numerous cases— among which are these: Robertson v. Aldridge, 185 N.C. 292, 116 S.E. 742; Allen v. Garibaldi, 187 N.C. 798, 123 S.E. 66; Watts v. Lefler, 190 N.C. 722, 130 S.E. 630; Grier v. Woodside, 200 N.C. 759, 158 S.E. 491; Lyon v. Lyon, 205 N.C. 326, 171 S.E. 356; McNabb v. Murphy, 207 N.C. 853, 175 S.E. 718; Matthews v. Cheatham, 210 N. C. 592, 188 S.E. 87; Vaughn v. Booker, 217 N.C. 479, 8 S.E.2d 603, 132 A.L.R. 977; Ewing v. Thompson, 233 N.C. 564, 65 S.E.2d 17; Goode v. Barton, 238 N.C. 492, 78 S.E.2d 398; Elliott v. Killian, 242 N.C. 471, 87 S.E.2d 903; Thompson v. Lassiter, 246 N.C. 34, 97 S.E.2d 492; Bumgarner v. Southern Ry. Co., 247 N.C. 374, 100 S.E.2d 830.

This Court has said in Vaughn v. Booker, supra [217 N.C. 479, 8 S.E.2d 604], "The very genesis of the family purpose car doctrine is agency, and that the question here presented is governed by the rules of principal and agent and of master and servant."

Moreover, in Watts v. Lefler, supra [190 N.C. 722, 130 S.E. 632], this Court, in opinion by Clarkson, J., quotes with approval this statement from Berry on Automobiles, 4th Ed., 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 his 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."

Moreover, in Matthews v. Cheatham, supra [210 N.C. 592, 188 S.E. 90], the Court quotes with approval from Huddy's Encyclopedia of Automobile Law, 9th Ed., Vols. 7-8, p. 324, this 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." To like import are later decisions cited above.

In the light of these principles applied to the evidence offered by plaintiff on the trial below, taken in the light most favorable to plaintiff, and giving to him the benefit of every reasonable inference and intendment, this Court is constrained to hold that a case against defendant Louise T. Mallory is made for submission to the jury, even though it is not as clear and forceful as it might be.

Hence in the judgment from which appeal is taken there is

No error.

BOBBITT, Justice (dissenting).

The record discloses this novel situation: Plaintiff's Buick was damaged by Edward R. Mallory's negligent operation of the 1952 Cadillac. Mallory, named as a defendant, was not served; and, as to him, judgment of voluntary non-suit was entered at trial in the Municipal-County Court. Judgment was entered in said court against Louise T. Mallory, Mallory's wife. She appealed; and, at trial in superior court, plaintiff offered Mallory as his witness. Mallory's testimony is the only evidence relevant to the liability of Louise T. Mallory for his negligence.

Mallory's testimony includes the following: His wife owned the Cadillac "for about three years." She paid the taxes on the car. Both were working when the car was purchased. When she was working both bought gas and paid repair bills. After his wife stopped working, all bills were paid by Mallory. He testified: "She ain't worked none for about three years."

The Cadillac was not purchased for cash; it was financed and refinanced. The details of these transactions are not shown. There is a faint inference (no explicit testimony) that Mrs. Mallory, before she stopped working, may have made some payment on account of the purchase price. After she stopped working, Mallory made all payments.

Presumably, all legal documents (none in evidence) indicate ownership by appellant. Mallory testified: "I ain't signed no mortgage on the automobile." Again: "Yes, I made payments on the car, I gave her the money to make them."

The evidence, considered in the light most favorable to plaintiff, suffices to show Mrs. Mallory's ownership of the Cadillac subject to such liens as might be out-standing. Even so, when the collision occurred, and for some two years prior thereto, possession was retained solely on account of payments made by Mallory. Under these circumstances, it can hardly be said that Mrs. Mallory had the final say as to the use and control of the car.

Irrespective of technical ownership, it seems to me that, as of the date of collision and for some two years prior thereto, Mallory provided and maintained the car for his own and family use. A realistic evaluation of the evidence indicates that through financing and refinancing he was making payments, similar to rentals, to retain the possession and use of the car. Under these circumstances, I do not think Mrs. Mallory is liable under the "familypurpose doctrine" or otherwise for Mallory's negligent operation of the car.

Whether Mallory would be liable for his wife's negligent operation thereof is another matter. In Matthews v. Cheatham, 210 N.C. 592, 188 S.E. 87, the minor daughter owned the car (won by her in a newspaper contest) but it was kept and maintained by her father for family use; and, under the "family-purpose doctrine," the father was held liable for his wife's negligent operation of said car.

Hence, in my opinion, appellant's motion for judgment of involuntary nonsuit should have been granted.