Wright v. Wright

Citation50 S.E.2d 540,229 N.C. 503
Decision Date24 November 1948
Docket Number305
PartiesWRIGHT v. WRIGHT.
CourtUnited States State Supreme Court of North Carolina

Horace Kennedy, of Shelby, for plaintiff appellant.

D Z. Newton, of Shelby, for defendant, appellee.

SEAWELL Justice.

Plaintiff a six-year-old boy, sues by his next friend to recover damages for a personal injury sustained by reason of the negligence of the driver of a motor vehicle owned by the defendant, and at the time used in the business of transporting passengers by taxicab. The operator of the taxicab, employee of defendant, was the child's father. The father is not joined as a party to the action.

The child was not a paid passenger. The complaint describes him as an invitee, with the knowledge and consent of the defendant owner.

Denials in the answer raised issues as to defendant's liability and the plaintiff proceeded with evidence. The defendant offered none.

The appeal is from a judgment of nonsuit on defendant's demurrer at the conclusion of plaintiff's evidence. This evidence consisted entirely of the testimony of the father, driver of the taxicab, with photographs and exhibits relating to the injury.

The witness testified that he had been driving for the defendant, who owned a fleet of cabs, eight or ten months, operating from a taxicab stand in Shelby. He explained that the child's mother worked at night in a textile plant, and he had been carrying the child with him on numerous occasions, at times when he went in to check up with defendant, and that the boy was with him in the car on the night of the injury.

On the issue of negligence the evidence, inter alia, tends to show that the taxicab was not equipped with adequate brakes, and that the brakes did not respond at all to the attempted application, causing the car to go out of control and into collision with the curb and a telephone pole, causing the injury. The driver, at the time, had been following a truck which he attempted to pass, and was endeavoring to avoid an automobile coming from the opposite direction. The evidence was legally sufficient to be submitted to the jury on the question of negligence; and the injury to the child, as disclosed by the evidence, was of a serious and permanent nature.

The evidence critically bearing on the status of the plaintiff as invitee we quote verbatim:

'On May 17, 1947, at night, my little son Billie was in the car with me. That was not the first time he had been with me. I had before this had him in my cab and driven him with the knowledge of J. Beatty Wright, but I cannot say as to the exact number of occasions I had done this, but he was with me several times when I went to check up with Mr. Beatty Wright, and Mr. Wright saw my son in the car with me. On May 15th, Mr. Beatty Wright came by the service station, and we were sitting around the station, and I asked what time was it and he said five past twelve, and I said I had a trip to the American Grill to get some people and bring them back to town; it was to Fred Hoppes' place I was going to carry them to, and he said, 'I am going in and go to bed, * * *'

And on cross-examination:

'I certainly had an accident that night of May 15; the policemen have the dates, and I swear that it was on the night of May 15, and I was working for Mr. Wright at that time, and it was on Monday night; and my child did not pay to ride in the cab and I had him with me because my wife was working on the third shift and I was over in Shelby and I had a trip to Kings Mountain and I wanted my child to spend the night with me. Mr. Beatty Wright had never told me that I could carry my child in the cab, and had not told me not to pick up anyone but a paid passenger; he never had told me that he wanted pay for my child riding in the cab with me, but I do know that he saw the child in the cab with me that night, for my child was in the seat, leaning over against me.'

Our inquiry is narrowed to the question whether there was, in this, evidence in behalf of the plaintiff sufficient to engender an inference that he was, at the time of the injury, an invitee, with the knowledge and consent of the defendant owner; and whether, although in fact such invitee, he is in position, as son of the negligent operator of the car, to invoke the law against the defendant on the principle of agency and respondeat superior; or to put it conversely--whether the defendant to whom the negligence of the employee is imputed as a matter of public policy, or as an agent through whom the employee was acting, may avail himself of the immunity from suit extended to the father as a defense against his own liability.

1. It does not require the express permission of the owner to constitute a passenger an invitee, or guest, nor does it require express authority, either general or specific, given the driver in charge of a taxicab to carry a non-paying passenger as such invitee or guest. Knowledge and consent are ordinarily held sufficient to raise the inference. The owner acquiesces in a situation which he does not seek to avoid when the opportunity is afforded.

'The owner need not have expressly invited the passenger to ride in the automobile so long as he knew of and acquiesced in the passenger's presence. ' Schwartz, Trial of Automobile Cases, sec. 373, p. 490. 'Where the passenger is riding in the machine with the knowledge and consent of the owner, and he is injured through the driver's negligence and without fault on his own part, he may recover from the owner. ' Ibid, sec. 388.

Our own decisions are in accord. In Russell v. Cutshall, 223 N.C. 353, 26 S.E.2d 866, 868, after stating the rule that the owner is not liable for negligent injury to a mere invitee of the driver, we find it stated: 'The particular nature of the employment, or the circumstances existing at the time, or acquiescence on the part of the employer, may create an exception to this general rule,' citing Fry v. Southern Public Utilities Co., 183 N.C. 281, 111 S.E. 354; Hayes v. Pine State Creamery, 195 N.C. 113, 141 S.E. 340. We italicize the part of the opinion pertinent to the facts under review here. Whether it be an exception to a general rule, or expressed as an independent rule, where the invitee is riding with the knowledge and consent of the owner the latter is liable, on the principle respondeat superior for injury proximately caused by the negligence of the driver. Fry v. Southern Public Utilities Co., supra; Hayes v. Pine State Creamery, supra.

Counsel for the plaintiff point out that the evidence tends to show that the driver, in going in to 'check up' personally with the defendant, had the boy with him in the car, and that on the night of the injury he was in the car and that defendant saw him leaning over against him; and knew he was about to make a business trip.

We are not prepared to say that the evidence was insufficient to make consent and acquiescence a jury matter.

The measure of the duty which the owner owes an invitee or guest is that of ordinary care. Fry v. Southern Public Utilities Co., supra; Hayes v. Pine State Creamery Co., supra; 5 Am.Jur., Automobiles, sec. 230, citations under n. 9.

2. The appellee argues that the plaintiff is barred from maintaining the suit because the negligence which proximately caused the injury was that of the father, against whom no action can be maintained; and cites in support of that position Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135.

Since Small v. Morrison presents an entirely different situation from that obtaining in the case under...

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