Goss v. Williams

• Decision Date: 24 October 1928
• Docket Number: 250.
• Citation: 145 S.E. 169,196 N.C. 213
• Parties: GOSS v. WILLIAMS.
• Court: North Carolina Supreme Court

145 S.E. 169

196 N.C. 213

GOSS v. WILLIAMS.

No. 250.

Supreme Court of North Carolina

October 24, 1928

Brogden J., dissenting

Appeal from Superior Court, Wake County; N. A. Sinclair, Judge.

Action by Thaddeus Goss, by his next friend, T. R. Goss, against Warren R. Williams. From the judgment, defendant appeals. No error.

Whether court should order new trial, where it is shown defendant automobile owner has indemnity insurance is largely within trial court's discretion.

The issues submitted to the jury, and their answers thereto, were as follows:

"1. Was plaintiff injured by the negligence of defendant, as alleged? Answer: Yes.

"2. What damage, if any, is plaintiff entitled to recover? Answer: $3,000.00."

This is an action for actionable negligence brought by Thaddeus Goss a minor, through his father, T. R. Goss, his next friend against the defendant, Warren R. Williams.

The plaintiff contends: That the defendant, Warren R. Williams, lives in Sanford, N. C., and was the owner of a Buick sedan, No. 35560. That his family consists of himself, his wife, and five children. On Wednesday, March 16, 1927, defendant's wife, Mrs. Warren R. Williams, drove the car to Raleigh, N. C., with Mrs. J. F. Foster, Mrs. C. L. Williams, and Mrs. W. R. Makepeace. They went to Raleigh to shop. On the return trip they left Raleigh about 5 o'clock, and Mrs. W. R. Makepeace drove the car, with Mrs. Warren R. Williams' permission, who sat on the front seat with her, and the others sitting on the back seat. About two miles south of Apex, on the way to Sanford, the car Mrs. W. R. Makepeace was driving struck the plaintiff, Thaddeus Goss, a minor between 7 and 8 years old, and seriously and permanently injured him. That Mrs. W. R. Makepeace was driving the car about 30 to 35 miles an hour. The highway, route No. 50, at the place of the injury to the boy, runs practically north and south, and was about 40 feet wide, and straight along where the injury occurred going toward Sanford for a long distance. That the Riggs road was a public road and intersects with route No. 50, entering from the west. The Carl Barker house was on the right-hand side of highway No. 50, and Thaddeus Goss' father's house on the left-hand side, and was reached by a pathway up an embankment, just opposite the Riggs public road, which intersects with highway No. 50. That Thaddeus Goss was with his sister, Mary Goss; she stopped at the Barker house to talk to Mrs. Barker, being on the edge of the Riggs public road. That Thaddeus walked by her to cross route No. 50 and go up the pathway to his father's house; when he left her he was traveling at a slow gait. Mary Goss testified: "I heard no horn blow." That he had to cross the highway, which was about 40 feet wide, and he had reached within 3 feet of the other side of route No. 50, and was within about the same distance of the path, when he was suddenly, without any warning, struck by defendant's automobile. That the left-hand light of the car driven by Mrs. Makepeace was turned around, and the glass over it was "bursted out," indicating that the left of the car struck the boy, and the car was on the left, instead of being on the right, of the center of the road. That the track of the car indicated that it was on the left of the road some 100 feet, going south, before it struck the boy. That a pile of glass, as much as a handful, was on the road 3 or 4 feet from the embankment on the left-hand side of route 50, going towards Sanford. The glass was about in front of the pathway. There was blood also on the left-hand side of the road going towards Sanford, where the glass was. The blood was along the road 23 steps in a southern direction from the glass. That, after being struck, the boy was carried by the car 23 steps southward where he was dropped off, and then the car turned to the right-hand side of the road and stopped, some 100 feet below the Riggs public road where it intersects with route No. 50. That the car was being very rapidly driven, and left the center of route No. 50, and turned to the left 100 feet from where it struck him. The car, at the speed it was running, could have been stopped, and defendant's witness testified was stopped, within 40 to 50 feet. The path leading to the Goss house was almost directly opposite the intersection of the Riggs public road with route 50.

One of plaintiff's witnesses testified in regard to tracking the car, and said:

"I noticed a car that came around about 100 feet up the road coming over on the left-hand side and struck something and turned and went back to the right-hand side of the road."

Defendant's contentions were to the contrary:

The car was being carefully driven on the right-hand side of the road going towards Sanford. The brakes were in good order. The glass on the left-hand light was not broken. The Riggs public road was obscured by an embankment. That Thaddeus Goss, the plaintiff, ran down an embankment, 3 or 4 feet high, was running. "A little boy ran out of the edge of the embankment, just like he came out of the air, and he was running and ran right off in front of the car. *** When he emerged from behind the embankment and he did not stop running. He just ran down the embankment and in front of the car."

The defendant in the court below made numerous exceptions and assignments of error. The material facts and assignments of error will be considered in the opinion.

Allen & Duncan and Winston & Brassfield, all of Raleigh, A. A. F. Seawell, of Sanford, and Murray Allen, of Raleigh, for appellant.

Percy J. Olive, of Apex, and J. C. Little, of Raleigh, for appellee.

CLARKSON J.

The defendant moved for judgment as in case of nonsuit at the close of plaintiff's evidence and at the conclusion of all the evidence. C. S. § 567. The evidence on the part of plaintiff was circumstantial in its nature, but sufficient to be submitted to the jury. The probative force was for them to determine.

"It is the settled rule of practice and the accepted position in this jurisdiction that, on a motion to nonsuit, the evidence which makes for the plaintiff's claim and which tends to support her cause of action, whether offered by the plaintiff or elicited from the defendant's witnesses, will be taken and considered in its most favorable light for the plaintiff, and she is 'entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom."' Christman v. Hilliard, 167 N.C. at page 6, 82 S.E. 949; Oil Co. v. Hunt, 187 N.C. at page 159, 121 S.E. 184; Davis v. Long, 189 N.C. 131, 126 S.E. 321; Nash v. Royster, 189 N.C. 410, 127 S.E. 356; Smith v. Ritch, 196 N.C. at page 74, 144 S.E. 537.

This court's jurisdiction is confined to review, upon appeal, of "any decision of the courts below, upon any matter of law or legal inference." Const. N.C. art. 4, § 8. We think there are several important propositions of law for this court to determine:

First. "Whether liability of the owner for negligent operation of a 'family purpose' car arises when the car is being used by the wife of the owner and driven by a third person by permission of the wife of the owner, the latter being present in the car on the seat beside her?"

In Watts v. Lefler, 190 N.C. at page 725, 726, 130 S.E. 632, this court said:

"The father-the owner of the automobile and the head of the family has the authority to say by whom, when and where his automobile shall be driven or he can forbid the use altogether. With full knowledge of an instrumentality of this kind, he turns over the machine to his family for 'family use.' When he does this, under the 'family doctrine,' which applies in this state, he is held responsible for the negligent operation of the machine he has intrusted to the members of his family."

In the instant case, under the "family purpose" doctrine rule, which prevails in this jurisdiction, if the wife was actually operating the car negligently, and the negligence was the proximate cause of the injury, her husband would be liable. She was sitting on the front seat, having turned the wheel over to one of the shopping party. Under the "family purpose" doctrine rule, the wife had control and authority over the car, and over the driver, and, in contemplation of law, the negligence of the driver was her negligence, which fastened liability on the defendant owner of the automobile. Could it be said that, if she tired of driving and turned the wheel over to a helper, an instrumentality of this kind, that liability upon the owner for negligent operation would not arise? We think not. Under the circumstances, there is an implied agency that fastens liability on the owner.

It is a matter of common knowledge that the father, the head of the family, the owner of the automobile, when he turns a car like the one in question, a Buick sedan, over to his wife for use, that she does not ride in it alone but usually rides with friends. Especially is this so on a trip of some distance, the driver becomes tired or for other causes the wheel is frequently turned over to some member of the party. Under such circumstances as in the present case, the wife having the control, authority and direction over the car, and she in turn permits one of the party to run it and sits on the front seat beside her, the owner of the car impliedly consents, the agency is extended, the driver is a helper and the owner will be held liable for actionable negligence on the part of the person at the wheel. See Albritton v. Hill, 190 N.C. 429, 130 S.E. 5.

In Ulman v. Lindeman, 44 N. D. at page 40, 176 N.W. 26 (10 A. L. R. 1440), it is said:

"The question is therefore squarely presented, upon these allegations, of the liability of the owner for the negligent act

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