Grier v. Woodside

• Decision Date: 13 May 1931
• Docket Number: 476.
• Citation: 158 S.E. 491,200 N.C. 759
• Parties: GRIER v. WOODSIDE et al.
• Court: North Carolina Supreme Court

158 S.E. 491

200 N.C. 759

GRIER v. WOODSIDE et al.

No. 476.

Supreme Court of North Carolina

May 13, 1931

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

Action by Nettie Merritt Grier against Jay L. Woodside and another. Judgment for plaintiff, and defendants appeal.

No error.

Instruction that, when evidence shows son drove father's automobile on occasions with his consent, burden shifts to father to show son was unauthorized to drive automobile on particular occasion, held not erroneous as changing burden.

The plaintiff brought suit to recover damages for personal injury resulting from the collision of her automobile with one driven by the defendant Howard Woodside. The defendant Jay L Woodside was the owner of the car, and Howard Woodside, 18 years of age, is his son. On May 31, 1930, at about 6 p. m. the plaintiff was driving her car in an easterly direction on Templeton avenue in the city of Charlotte, and Howard Woodside was driving his father's car in a southerly direction on Euclid avenue. At the intersection of the two avenues a collision of the cars occurred, resulting in injury to plaintiff and damage to her car. The various acts of alleged negligence are set out in the complaint.

The defendants, admitting that Howard Woodside was a minor and that his father owned the car, denied all the allegations of negligence, and pleaded contributory negligence of the plaintiff in bar of her recovery. The following verdict was returned "1. Was the plaintiff injured and damaged by the negligence of the defendant, Howard Woodside, as alleged in the complaint? A. Yes.

"2. If so, is the defendant Jay L. Woodside, responsible for and chargeable with such negligence? A. Yes.

"3. Did the plaintiff, by her own negligence, contribute to her injury, and damage as alleged in the answer? A. No.

"4. What damages, if any, is the plaintiff entitled to recover? A. $2,150.00."

Judgment was rendered for the plaintiff, and the defendants appealed assigning error.

C. H. Gover, of Charlotte, for appellants.

John M. Robinson and Hunter M. Jones, both of Charlotte, for appellee.

ADAMS J.

There was no error in overruling the defendants' motion for nonsuit. Indeed, the negligence of the son is not in controversy. The matters in dispute are the alleged liability of the father and a question of error in the charge to the jury.

This court has held that the owner of an automobile is not liable in damages for injury resulting from its negligent operation merely because of his ownership, and that as a rule a father is not liable for the torts of his minor son. Brittingham v. Stadiem, 151 N.C. 299, 66 S.E. 128; Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096; Taylor v. Stewart, 172 N.C. 203, 90 S.E. 134. In such cases liability for the son's negligence will ordinarily be imputed to the father only on some principle of agency or employment. Wilson v. Polk, 175 N.C. 490, 95 S.E. 849; Bilyeu v. Beck, 178 N.C. 481, 100 S.E. 891; Robertson v. Aldridge, 185 N.C. 292, 116 S.E. 742, 743. But with respect to the use of automobiles this principle must be considered in connection with the family purpose doctrine, which has been adopted as the law of this jurisdiction. Williams v. May, 173 N.C. 78, 91 S.E. 604; Clark v. Sweaney, 176 N.C. 529, 97 S.E. 474; Tyree v. Tudor, 181 N.C. 214, 106 S.E. 675; Allen v. Garibaldi, 187 N.C. 798, 123 S.E. 66; Watts v. Lefler, 190 N.C. 722, 130 S.E. 630; Plott v. Howell, 191 N.C. 832, 133 S.E. 167; Goss v. Williams, 196 N.C. 213, 145 S.E. 169. A concise statement of the doctrine is set out in Robertson v. Aldridge, supra: "Where a parent owns a car for the convience and pleasure of the family, a minor child who is a member of the family, though using the car at the time for his own purposes with the parent's consent and approval, will be regarded as representing the parent in such use, and the question of liability for negligent injury may be considered and determined in that aspect."

Under this doctrine the question of liability does not depend on the relation of parent and child; the question is whether the child was using the car for one of the purposes for which it was provided. Hence the consent of the parent need not be express; it may be implied from circumstances, such, for example, as the habitual or customary use of the car. Wallace v. Squires, 186...