Allen v. Garibaldi

• Decision Date: 31 May 1924
• Docket Number: 463.
• Citation: 123 S.E. 66,187 N.C. 798
• Parties: ALLEN v. GARIBALDI.
• Court: North Carolina Supreme Court

123 S.E. 66

187 N.C. 798

ALLEN v. GARIBALDI.

No. 463.

Supreme Court of North Carolina

May 31, 1924

Appeal from Superior Court, Mecklenburg County; Harding, Judge.

Action by Fred Allen against Joe Garibaldi. Judgment for plaintiff and defendant appeals. No error.

In action against father for son's negligent operation of father's automobile, evidence as to son's agency held for jury, and verdict thereon amply supported by plaintiff's testimony.

Civil action to recover damages for an alleged negligent injury

Upon denial of liability and issues joined, the jury returned the following verdict:

"(1) Was the plaintiff injured by the negligence of the defendant's minor son as alleged in the complaint? A. Yes.

(2) Was Lynn Garibaldi the agent and servant of the defendant, Joe Garibaldi, at the time of said injury, as alleged in the complaint? A. Yes. ,

(3) Did the plaintiff by his own negligence contribute to his injury as alleged in the answer? A. No.

(4) If so, could the defendant's son by the exercise of ordinary care have avoided the injury to plaintiff notwithstanding the negligence of the plaintiff? A. Yes.

(5) What damages, if any, is the plaintiff entitled to recover of the defendant? A. $5,000."

From a judgment on the verdict in favor of plaintiff, the defendant appeals, assigning errors.

Tillett & Guthrie, of Charlotte, for appellant.

Parker Stewart, McRae & Bobbitt, of Charlotte, for appellee.

STACY J.

Plaintiff was injured on the night of July 2, 1922, about 9 p. m., near the center of South Bouleward street in the residential section of the city of Charlotte; and this action is brought to recover damages therefor. He was working for the local traction company and had gone out to repair some electric wires, which had been damaged by a storm. While crossing the street, plaintiff dropped a transformer plug, a metal object about six inches long, and was engaged in looking for it leaning over in a stooped position, when he was struck by defendant's automobile, which was being driven at the time by Lynn Garibaldi, defendant's minor son. It was alleged that the automobile was not equipped with proper lights and was being driven at an unlawful rate of speed; that the driver failed to give any warning of his approach and neglected to keep a proper lookout for persons or pedestrians on the street; and that he failed to stop his automobile or swerve it to the side so as to avoid striking the plaintiff, which he could and should have done in the exercise of due care.

The exception upon which the defendant has placed much emphasis is the one directed to the refusal of the court to grant his motion for judgment as of nonsuit, made first at the close of plaintiff's evidence, and renewed at the close of all the evidence. C. S. 567. Without stating the facts in detail, some of which are in dispute, we are convinced, from a careful perusal of the record, viewing the evidence in its most favorable light for the plaintiff, the accepted position on demurrer or motion to nonsuit, that the case was properly submitted to the jury, and that the verdict, as rendered, is amply supported by the testimony of plaintiff's witnesses. In fact, it is frankly conceded by the defendant that the decision in Wallace v. Squires, 186 N.C. 339, 119 S.E. 569, must be overruled if his motion for judgment as of nonsuit is sustained in the present case. Without deciding whether we shall follow all that was said in that case, it is sufficient for present purposes to state that the "family-purpose" doctrine, with respect to automobiles, has been adopted as the law of this jurisdiction in several recent decisions. Robertson v. Aldridge, 185 N.C. 292, 116 S.E. 742; Tyree v. Tudor, 183 N.C. 340, 111 S.E. 714, modified in another respect in Williams v. Railroad, 187 N.C. 354, 121 S.E. 608; Clark v. Sweaney, 176 N.C. 529, 97 S.E. 474; Id., 175 N.C. 280, 95 S.E. 568; Williams v. May, 173 N.C. 78, 91 S.E. 604; Taylor v. Stewart, 172 N.C. 203, 90 S.E. 134. For an extended discussion of this doctrine, see 33 Yale Law Journal, 780, and note to Arkin v. Page, 287 Ill. 240, 123 N.E. 30, as reported in 5 A. L. R. 216.

The next exceptions, earnestly pressed by defendant, are those addressed to the following questions asked Lynn Garibaldi and his father, Joe Garibaldi, when they, as witnesses, were being cross-examined by plaintiff's counsel:

"Q. I will ask you (Lynn Garibaldi) if you don't know that your father notified the indemnity company of this injury?" Objection by defendant sustained.

"Q. Mr. Joe Garibaldi, after this accident occurred, and before any suit was brought in this case, did you write a letter to the United States Casualty Company, notifying that company of this accident?" Objection by defendant sustained.

It is the position of the defendant that the asking of these questions, though not allowed to be answered in the presence of the jury, was...