Chappell v. Dean, 450

• Decision Date: 11 January 1963
• Docket Number: No. 450,450
• Citation: 258 N.C. 412,128 S.E.2d 830
• Parties: William G. CHAPPELL v. Kenneth Wayne DEAN, N. K. Dean, Individually, and N. K. Dean, Executor of the Estate of Will Autry, and Joseph W. Carroll.
• Court: North Carolina Supreme Court

Page 830

128 S.E.2d 830

258 N.C. 412

William G. CHAPPELL v. Kenneth Wayne DEAN, N. K. Dean, Individually, and N. K.

Dean, Executor of the Estate of Will Autry, and

Joseph W. Carroll.

No. 450

Supreme Court of North Carolina.

Jan. 11, 1963

Howard F. Twiggs and Ellis Nassif, Raleigh, for plaintiff.

Blanchard & Farmer, Raleigh, for defendants.

MOORE, Justice.

The pickup truck was registered in the name of Will Autry. Will Autry had died testate prior to 11 January 1961, date of the accident. In his will he bequeathed the pickup truck to N. K. Dean. N. K. Dean was the qualified and acting executor of Autry's estate at the time of the accident. The estate had not been settled. Kenneth Wayne Dean is the son of N. K. Dean and is a member of the latter's household.

Plaintiff alleges that at the time of the accident Kenneth was the agent of N. K. Dean, individually, under the family purpose doctrine, and was also agent and about the business of N. K. Dean, Executor.

N. K. Dean, individually, contends that there is not sufficient evidence to justify submission of the case to the jury under the family purpose doctrine and his motion for nonsuit should have been allowed. He also contends that the court erred in its instructions to the jury on the second issue.

There is evidence tending to show that the pickup truck was in the possession and under the control of N. K. Dean, he kept it at his residence, plaintiff had previously ridden in the truck while Kenneth was operating it on trips to the rabbit boxes, to drag strip races and for making collections on N. K. Dean's paper route, Kenneth had been seen driving it on many occasions, and on the night in question N. K. Dean, knowing that plaintiff and Kenneth were going to the rabbit boxes, 'made a statement to him about not driving the truck fast, for some mechanical reason * * *,' and 'Mr. Dean did not tell Kenneth not to take the truck on this occasion.' This evidence makes out a prima facie case of agency under the family purpose doctrine. Tart v. Register, 257 N.C. 161, 125 S.E.2d 754; Grindstaff v. Watts, 254 N.C. 568, 119 S.E.2d 784; Lynn v. Clark, 252 N.C. 289, 113 S.E.2d 427. Under the family purpose doctrine the vehicle must be subject to the control of the person on whom liability is sought to be imposed. 'The test is not who owns the vehicle but control or the right to control. Since ownership presumptively indicates the right to control, it is frequently stated as one of the elements necessary for the application of the doctrine. But one may in fact exercise control and direct the use of property without in fact being the owner.' Griffin v. Pancoast, 257 N.C. 52, 55, 125 S.E.2d 310, 313.

In charging on the second issue with respect to the family purpose doctrine the court told the jury: 'The family purpose doctrine is based on the relationship of what we call in law 'respondeat superior,' which means let the master respond. Of course, if the * * * master * * * authorized or ratified the * * * alleged wrongful act, that is, the taking of the pickup truck and the wreck, or participated in it himself, he would be liable for damages occasioned by it; but if he did not authorize it or did not ratify it he would still be liable if it was done within the real or apparent course or scope of his agent, servant or employee, and this being so, * * * even if he had actually been forbidden the use of the truck.'

This instruction is erroneous and entitles N. K. Dean, individually, to a new trial. The family purpose doctrine is an extension of the principle of respondeat superior, and involves a novel application of the principle. Grindstaff v. Watts, supra. Permission and consent by the owner (or one having the control) is an essential element of the family purpose doctrine. Plaintiff must show by a preponderance of the evidence the consent, knowledge and approval of the owner. This may of course be shown by circumstantial evidence, that is, implied from circumstances, such as the habitual or customary use of the car by the member of the family. Grier v. Woodside, 200 N.C. 759, 158 S.E. 491. But if there is no permission and consent, and the use of the vehicle has been forbidden, the owner cannot be held liable under the doctrine. Vaughn v. Booker, 217 N.C. 479, 8 S.E.2d 603, 132 A.L.R. 977.

If, as plaintiff suggests, the court was speaking of the principle of respondeat superior in the abstract, and did not intend to apply this instruction to the evidence in the case or to make it a rule for the jury's guidance in considering the family purpose doctrine, it is still prejudicial and is calculated to mislead the jury. It is error for the court to charge upon an abstract principle of law which is not presented by the evidence in the case. Carswell v. Lackey, 253 N.C. 387, 393, 117 S.E.2d 51.

Since there must be a new trial on the second issue, it is our opinion, for reasons hereinafter stated, that there should also be a new trial on the third issue. Justice requires that the jury consider these issues, each in relation to the other.

The pickup truck was registered in the name of Will Autry, who had died prior to the accident. N. K. Dean, executor of Autry's will, had not assigned the title to himself, it having been willed to him. The estate had not been settled. Under the provisions of G.S. § 20-17.1 proof of the registration of the vehicle in the name of Will Autry is prima facie evidence of the ownership of the vehicle by Will Autry's estate, and that it was being operated by a person for whose conduct Autry's estate was legally responsible, and that it was being operated for the estate's benefit and within the scope and course of the operator's employment or agency. Travis v. Duckworth, 237 N.C. 471, 473, 75 S.E.2d 309.

The trial judge instructed the jury that proof of registration constitutes such prima facie evidence, and then stated: '* * * (T)hat is a rebuttable presumption and * * * the defendant has the right and it is his duty to rebut this presumption, the burden being upon the defendant to rebut this presumption of law.' The quoted portion of the instruction is, of course, erroneous. The statute creates no presumption of law, and it does not shift the burden of the issue from plaintiff to defendant. In fairness to the learned judge, we must explain that the error, oddly enough, was invited. Defendant in apt time and in writing requested this instruction. We hasten to add that distinguished counsel, who signed the brief and appeared for defendant in Supreme Court, did not represent defendant at the trial below. Even so, we ordinarily hold that a party is bound by his written prayer for instructions. Carruthers v. R. R., 218 N.C. 377, 11 S.E.2d 157. Since there must be a new trial, we call attention to the erroneous instruction to guard against a repetition when the case is retried.

'The statute (G.S. 20-71.1) was designed to create a rule of evidence. Its purpose is to establish a ready means of proving agency in any case where it is charged that the negligence of a nonowner operator causes damage to the property or injury to the...