Ewing v. Thompson , 233 N.C. 564 ( 1951 )

65 S.E.2d 17 (1951) 233 N.C. 564

EWING
v.
THOMPSON et al.

No. 528.

Supreme Court of North Carolina.

May 9, 1951.

Guy T. Carswell, Robinson & Jones, all of Charlotte, Louis Geffen, Atlanta, Ga., John M. Robinson, Jr., Charlotte, for plaintiff appellee.

Jones & Small, Charlotte, for defendants appellants.

WINBORNE, Justice.

The statute, G.S. § 1-105, under which plaintiff has attempted to bring the defendants, residents of Canada, into court in this action, provides in pertinent part that "The acceptance by a non-resident of the rights and privileges conferred by the laws now or hereafter in force in this state permitting the operation of motor vehicles, as evidenced by the operation of a motor vehicle by such non-resident on the public highways of this state * * * shall be deemed equivalent to the appointment by such non-resident of the Commissioner of Motor Vehicles, or of his successor in office, to be his true and lawful attorney upon whom may be served all summonses or other lawful process in any action or proceeding against him growing out of any accident or collision in which said non-resident may be involved by reason of the operation by him, for him, or under his control or direction, express or implied, of a motor vehicle on such public highway of this State, and said acceptance or operation shall be a signification of his agreement that any such process against him shall be of the same legal force and validity as if served on him personally * * *".

This statute is modeled after and is almost identical with Chapter 90, § 3A of General Laws of Massachusetts, as amended by statute 1923, Ch. 431, Sec. 2,— the constitutionality of which was sustained by the Massachusetts Supreme Judicial Court in Pawloski v. Hess, 250 Mass. 22, 144 N.E. 760, 35 A.L.R. 945, and on a writ of error by Supreme Court of the United States in Hess v. Pawloski, 274 U.S. 352, 47 S. Ct. 632, 633, 71 L. Ed. 1091. The Supreme Court of the United States dealt expressly with the question "whether the Massachusetts enactment contravenes the due process clause of the Fourteenth Amendment".

The constitutionality of the North Carolina Act, Public Laws 1929, Chapter 75, as amended, now G.S. § 1-105, was upheld in Ashley v. Brown, 198 N.C. 369, 151 S.E. 725, which has been referred to, or cited with approval in these cases: Bigham v. Foor, 201 N.C. 14, 158 S.E. 548; Smith v. Haughton, 206 N.C. 587, 174 S.E. 506; Dowling v. Winters, 208 N.C. 521, 181 S.E. 751; Wynn v. Robinson, 216 N.C. 347, 4 S.E.2d 884; Alberts v. Alberts, 217 N.C. 443, 8 S.E.2d 523; Propst v. Hughes Trucking Co., 223 N.C. 490, 27 S.E.2d 152; Davis v. Martini, 233 N.C. 351, 64 S.E.2d 1.

Moreover, appellants, in their brief filed on this appeal, call attention to the fact that there is no treaty between the United States and Canada relating to this subject.

Therefore, the questions here are these:

1. Is a resident of Canada, operator of an automobile involved in an accident on a public highway in this State, a "non-resident" within the purview of G.S. § 1-105? and

2. Is a family-purpose automobile, owned by a resident of Canada, and operated by her son on a public highway in this State, operated for the owner, or under her control or direction, express or implied, within the purview of G.S. § 1-105?

While neither of these questions had been presented heretofore to this Court, we are of opinion and hold that each merits an affirmative answer.

As to the operator: The word "nonresident", as used in the Motor Vehicle Act, Chapter 20 of General Statutes, is defined by the General Assembly, as "every person who is not a resident of this state". The trend of decision in this Court in matters pertaining to attachment proceedings is of like tenor. See Carden v. Carden, 107 N.C. 214, 12 S.E. 197; Brann v. Hanes, 194 N.C. 571, 140 S.E. 292; Voehringer v. Pollock, 224 N.C. 409, 30 S.E.2d 374; see also Bigham v. Foor, supra, on facts found.

Admittedly the operator of the automobile in the present action is not a resident of the State of North Carolina, and no sufficient reason is made to appear to entitle him to preferred consideration over any other non-resident of this State, upon whom substituted service has been effected under like circumstances. Bigham v. Foor, supra; Wynn v. Robinson, supra; Alberts v. Alberts, supra; Davis v. Martini, supra. In so holding, support is found in the cases of Lulevitch v. Hill, D.C., 1949, 82 F. Supp. 612, and Silver Swan Liquor Corp. v. Adams, 1941, 43 Cal. App.2d Supp. 851, 110 P.2d 1097, etc.

In the Lulevitch case, the defendant is a resident of Ontario, Canada, and Judge of the United States District Court of the Eastern District of Pennsylvania was construing the Pennsylvania statute providing for substitute service upon non-resident motorists, 75 P.S. § 1201 et seq., which is similar to the North Carolina statute G.S. § 1-105. The plaintiff contended that the act applies to any non-resident,—not merely those who are citizens of another State in the United States. There were no Pennsylvania decisions on the point. The holding of the Court is epitomized in this headnote: "Citizens and resident of Dominion of Canada was a ``nonresident' subject to substituted service under the Pennsylvania statute providing for substituted service on nonresident motorists in civil suits arising out of accident or collision within the commonwealth".

And in Silver Swan Liquor Corp. v. Adams, the Court considering the case of a non-resident minor motorist, on whom personal service was made in Canada by duly qualified officer, held the process was properly served under provision in Vehicle Code of California relating to service of process on non-resident motorist. Vehicle Code, § 404, St. 1935 p. 154. Civ. Code, § 33.

Now, as to the owner: While appellants object and except to the finding of fact made by the Superior Court judge that the automobile operated by the son of the owner at the time of, and involved in the accident out of which this action grows, was a family-purpose automobile, the finding appears to be based upon sufficient evidence. In fact no evidence to the contrary appears in the record. Such finding of fact by the judge is conclusive on appeal. Bigham v. Foor, supra; Crabtree v. Burroughs-White Chevrolet Sales Co., 217 N.C. 587, 9 S.E.2d 23; Davis v. Martini, supra; In re Blalock, N.C., 64 S.E.2d 848.

The "family-purpose doctrine" with respect to automobiles has been adopted as the law of 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.

In Robertson v. Aldridge, supra [185 N.C. 292, 116 S.E. 743], Hoke, J., writing for the Court enunciated the principle in these words: "But it is also held, and in our opinion by the great weight of authority, that where a parent owns a car for the convenience and pleasure of the family a minor child who is a member of the family, though using the car at the time for his own purposes with the parent's consent and approval, will be regarded as representing the parent in such use, and the question of liability for negligent injury may be considered and determined in that aspect", that is, under the principle of respondeat superior, citing Clark v. Sweaney, 176 N.C. 529, 97 S.E. 474, Id., 175 N.C. 280, 95 S.E. 568, and several cases from other jurisdictions. And in Watts v. Lefler, supra, the principle was declared in a case involving the operation of a family-purpose car by an adult son, living with his parent.

In the light of this principle, applied to facts as found by the judge below, for the purpose in hand, the son of the owner of the family-purpose automobile will be regarded as representing the parent in such use, and hence, the operation by the son would be for the owner, and within the purview of G.S. § 1-105.

Therefore, after careful consideration of all assignments of error presented, and contentions made, and argument advanced by appellants, we are of opinion that the rulings of the judge of Superior Court are proper, and should be upheld.

Affirmed.