Brown v. Wood

• Decision Date: 16 September 1931
• Docket Number: 15.
• Citation: 160 S.E. 281,201 N.C. 309
• Parties: BROWN v. WOOD et al.
• Court: North Carolina Supreme Court

160 S.E. 281

201 N.C. 309

BROWN v. WOOD et al.

No. 15.

Supreme Court of North Carolina

September 16, 1931

Appeal from Superior Court, Pasquotank County; Small, Judge.

Action by Vernon Brown, by his next friend, J. S. Webb, against John L. Wood and another. From a judgment of nonsuit as against defendant named, plaintiff appeals.

Reversed.

Promise to injured person by owner of automobile driven by another that he would see "that everything was all right" held admissible on question of owner's liability.

The plaintiff, a minor, was riding in a car with his uncle, J. S Webb, on the 8th day of July, 1928. The car in which plaintiff was riding was approaching Elizabeth City. A car owned by the defendant Wood and driven by the defendant David Sanders was approaching from the opposite direction. The evidence tended to show that the car operated by the defendant Sanders undertook to pass a car in front thereof and traveling in the same direction therewith, and in so doing struck the car in which plaintiff was riding, turning it over, and as a result thereof plaintiff suffered serious and permanent injuries, necessitating the amputation of one of his feet. There was ample evidence to the effect that the defendant Sanders was driving the car in a negligent manner.

At the conclusion of the testimony for plaintiff, the trial judge sustained a motion of nonsuit as to defendant John L. Wood and thereupon issues of negligence, contributory negligence and damages were submitted to the jury as to the defendant Sanders. The issues were answered in favor of plaintiff and damages were awarded in the sum of $1,250.

The plaintiff appealed from the judgment of nonsuit as to Wood.

M. B. Simpson, of Elizabeth City, for appellant.

McMullan & McMullan, of Elizabeth City, for appellee Wood.

BROGDEN J.

Two questions of law are presented by the record:

1. Does proof of ownership of a pleasure car constitute a prima facie case of liability against the owner, for injuries resulting from the negligent operation thereof by another?

2. Is the conversation of defendant Wood with Webb, next friend of plaintiff, competent as evidence of agency of defendant Sanders?

The law answers the first question in the negative. Reich v. Cone, 180 N.C. 267, 104 S.E. 530; Tyson v. Frutchey, 194 N.C. 750, 140 S.E. 718; Jeffrey v. Mfg. Co., 197 N.C. 724, 150 S.E. 503. The foregoing cases declare the law in this jurisdiction to be that, if a pleasure car is driven by a person other than the owner and the family purpose doctrine does not apply, then there must be evidence of agency, and that the agent, at the time of the injury, was acting within the scope of his employment, in order to impose liability upon such owner.

The plaintiff, however, insists that the conversation of defendant Wood, the owner of the car, is some evidence of agency to be considered by a jury. This conversation, occurring at the hospital, as detailed by the record, is as follows: "The boy was on the cot. Mr. Wood said: 'He was a poor boy but he wanted to help him out and they would pay the doctor's bill and would get him a limb and fix it so he would have some money to educate himself.' *** Mr. Wood said it was his car and said he would do what he could to help Sanders out, but said nothing about why Sanders was driving. Mr. Wood gave me a check on a bank which I did not think exists. Wood told me that he would see 'that everything was all right.' He gave me that check and said he would give me some more and do everything he could to see that it was all right. *** Mr. Wood said he would do all he could to help Mr. Sanders and said he would give Vernon an artificial foot and pay the hospital bills and give Vernon money for his education."

The foregoing...