White v. Vananda , 13 N.C. App. 19 ( 1971 )

185 S.E.2d 247 (1971) 13 N.C. App. 19

George Thomas WHITE
v.
William E. VANANDA.

No. 7128SC665.

Court of Appeals of North Carolina.

December 15, 1971.

Riddle & Shackelford by John E. Shackelford, Asheville, for plaintiff appellant.

Van Winkle, Buck, Wall, Starnes & Hyde by O. E. Starnes, Jr., and Uzzell & Dumont by Harry Dumont, Asheville, for defendant appellee.

PARKER, Judge.

Plaintiff's evidence that the collision occurred when defendant's son drove left of the center of the highway made a prima facie case of actionable negligence on the son's part, Lassiter v. Williams, 272 N.C. 473, 158 S.E.2d 593; Anderson v. Webb, 267 N.C. 745, 148 S.E.2d 846, and the only question presented by this appeal is whether the evidence was sufficient to require the jury to pass upon an issue as to defendant's responsibility for his son's actions. We think that it was.

Since the collision occurred in North Carolina, the family purpose doctrine as enunciated in this State rather than as declared in the State of defendant's residence must be considered in determining if the doctrine is applicable under the facts of this case. Goode v. Barton, 238 N.C. 492, 78 S.E.2d 398. In discussing that doctrine, Moore, J., speaking for our Supreme Court in Grindstaff v. Watts, 254 N.C. 568, 571, 119 S.E.2d 784, 787, said:

"The family purpose doctrine is an anomaly in the law. When the facts essential to invoke the doctrine are established by the verdict or admitted, an irrebuttable presumption arises that the family member operator was the agent of the family member owner and acted pursuant to and within the scope of the agency. ``The doctrine is an extension of the principle of respondeat superior. * * *' 38 N.C. Law Review, 249, 250, In this State it is not the result of legislative action, but is a rule of law adopted by the Court."

The doctrine has been stated and restated many times by our Supreme Court "and, collectively, the cases define it as follows: Where the head of a household owns, keeps, provides, or maintains an automobile for the convenience and pleasure of his family, he is liable for the injuries caused by the negligent operation of the vehicle by any member of his family who is using the vehicle for the purpose for which it was provided." Sharp, J., in dissenting opinion in Smith v. Simpson, 260 N.C. 601, 614, 133 S.E.2d 474, 484.

In the present case defendant has admitted ownership of the car which his son was driving. He testified that he provided it for the convenience and pleasure primarily of his wife, but that at times it was also used by special permission by the two oldest boys, who were of an age to drive, "if they really needed the car for something." He testified that his son, William Ronald Vananda, had special permission to use the car for the purpose for which it was being used and on the occasion when the collision occurred. The only real question presented by this appeal is whether, under the facts disclosed by the evidence, the jury could legitimately find that William Ronald Vananda was, at the time of the collision, a member of his father's family for purposes of applying the family purpose doctrine. When the evidence is viewed in the light most favorable to the plaintiff, as it must be in passing upon the correctness of the directed verdict against him, Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396, we think that the jury could so find.

At the outset we observe that while the record does not disclose how old William was at the time of the accident, the family purpose doctrine "is not confined to situations involving parent and minor child. It applies with equal force when the child is an adult," Smith v. Simpson, supra, for "the parent is under no more legal obligation to supply an automobile for the use and pleasure of a minor child than he is for the use and pleasure of an adult child." Watts v. Lefler, 190 N.C. 722, 130 S.E. 630. Nor do we think that the fact that at the time of the collision William was serving in the armed forces and for the period of his enlistment was not dependent upon his father for support should, as a matter of law, exclude him from membership in his father's family as that group is conceived of in applying the family purpose doctrine. To so hold would in these times automatically exclude from the family group thousands of young men whose relationship with their parents and within the family group, and whose financial responsibility, has undergone no real change. The case now before us, as indeed every case involving a possible application of the family purpose doctrine, must be considered in the light of its own particular facts. Viewing those facts in the light most favorable to plaintiff, we hold that the son's military service in the present case did not as a matter of law compel the conclusion that he had ceased to be a member of his father's family within the meaning of the family purpose doctrine, and it was for the jury to determine, under proper instructions from the court, whether at the time of the collision he yet remained within the family group for purpose of applying that doctrine. There was here evidence that he did not intend to make the service his career, and that when his duty permitted he returned to his father's home and resumed his position as a member of the household. While we find no case in which the Supreme Court of North Carolina has passed upon the precise question here presented, the holding of the Supreme Court of Georgia in Dunn v. Caylor, 218 Ga. 256, 127 S.E.2d 367, seems entirely consistent with the family purpose doctrine as enunciated in our own State. In that case the Court said:

"Every case concerning the application of the family purpose doctrine must stand upon its own facts as to what the parent has voluntarily assumed as a part of the business to which he will devote himself and to which he will have his vehicle applied. The extent to which an automobile may be used for the comfort and pleasure of the family is a question to be settled by the parent and it is also a matter for the parent's determination as to whether a son home from military service would be included among those whose comfort and pleasure would be promoted by the use of the vehicle. A parent is not relieved from liability merely because a child is an adult or self-sustaining."

Apart from the family purpose doctrine, plaintiff was entitled to have his case submitted to the jury. Defendant admitted ownership of the 1965 Chevrolet and conceded that it was registered in his name. By G.S. § 20-71.1(a), in this action to recover damages for personal injuries, establishment of the fact of ownership of defendant's vehicle at the time of the collision "shall be prima facie evidence that said motor vehicle was being operated and used with the authority, consent, and knowledge of the owner in the very transaction out of which said injury or cause of action arose." By G.S. § 20-71.1(b), establishment of the fact of registration of the vehicle in defendant's name, shall "be prima facie evidence of ownership and that such motor vehicle was then being operated by and under the control of a person for whose conduct the owner was legally responsible, for the owner's benefit, and within the course and scope of his employment." Taylor v. Parks, 254 N.C. 266, 118 S.E.2d 779, relied on by defendant, is not here applicable. In that case, G.S. § 20-71.1(b) was not involved for the reason that plaintiff there had neither allegation nor proof as to registration of the vehicle involved. In that case, plaintiff offered evidence, "clear, convincing and uncontradicted," that at the time of the collision the automobile was being operated without the defendant owner's authority, consent and knowledge, and that the driver was not at the time the defendant's agent, servant or employee acting in the course and scope of his employment in the transaction out of which plaintiff's injuries arose. Our Supreme Court held that such evidence overcame the statutory rule of evidence created by G.S. § 20-71.1(a). In the case now before us, plaintiff's evidence was entirely consistent with the statutory rule of evidence created by G.S. § 20-71.1(a) and was not so clearly inconsistent with the statutory rule of evidence created by G.S. § 20-71.1(b) as to make that section inapplicable.

For the foregoing reasons, the judgment directing verdict against plaintiff must be and is

Reversed.

MORRIS and GRAHAM, JJ., concur.