Lynn v. Clark, 309

• Decision Date: 06 April 1960
• Docket Number: No. 309,309
• Citation: 252 N.C. 289,113 S.E.2d 427
• Court: North Carolina Supreme Court
• Parties: R. C. LYNN, Administrator of the Estate of David Lee Lynn, deceased, v. Mildred M. CLARK and William L. Clark, Administrator of Charles Clark, deceased.

Page 427

113 S.E.2d 427

252 N.C. 289

R. C. LYNN, Administrator of the Estate of David Lee Lynn, deceased, v. Mildred M. CLARK and William L. Clark, Administrator of

Charles Clark, deceased.

No. 309

Supreme Court of North Carolina.

April 6, 1960

W. Harold Mitchell, Valdese, and John H. McMurray, Morganton, for plaintiff.

Patton & Ervin, Morganton, for defendant Mildred M. Clark.

DENNY, Justice.

The plaintiff's first assignment of error is to the allowance of the motion of the defendant Mildred M. Clark for judgment as of nonsuit at the close of plaintiff's evidence.

In considering this assignment of error, we think it must be determined whether or not the allegations of the complaint, together with the evidence offered in support thereof, are sufficient to take the case to the jury without invoking the provisions of G.S. § 20-71.1.

The complaint does not allege that Charles Clark was the agent, servant, or employee of the owner of the car involved in the fatal accident, unless it does so in paragraph 7 of the complaint where it is alleged, 'that said car was a 'family purpose' car.'

In our opinion, the mere allegation that a car owned by a defendant is a family purpose car is an insufficient allegation upon which to recover under the family purpose doctrine.

Ordinarily, a cause of action based solely on the family purpose doctrine is stated by allegations to the effect that at the time of the accident the operator was a member of his family or household and was living at home with the defendant; that the automobile involved in the accident was a family car and was owned, provided, and maintained for the general use, pleasure, and convenience of the family, and was being so used by a member of the family at the time of the accident with the consent, knowledge, and approval of the owner of the car. 5A Am.Jur., Automobiles and Highway Traffic, section 893, at page 797. Allegations which, if proven, are sufficient to invoke the family purpose doctrine, are sufficient to establish agency. The very genesis of the family purpose doctrine is agency. Vaughn v. Booker, 217 N.C. 479, 8 S.E.2d 603, 132 A.L.R. 977. We hold that the allegations of the plaintiff's complaint are insufficient to invoke such doctrine.

The only other allegation upon which the plaintiff relies for the establishment of agency is as follows: 'That plaintiff is informed, believes and alleges that Charles Clark was a minor of the age of fifteen (15) at the time of the wreck herein complained of and that he was operating a 1956 Chevrolet, which was owned by his mother, Mildred M. Clark, by and with her consent, knowledge, and permission * *.'

We have held in numerous cases that under the provisions of G.S. § 20-71.1, proof or admission of ownership by the defendant of the motor vehicle involved in an accident is sufficient to make out a prima facie case of agency which will support, but not compel, a verdict against the owner under the doctrine of respondeat superior for damages proximately caused by the negligence of the nonowner operator of the motor vehicle. Travis v. Duckworth, 237 N.C. 471, 75 S.E.2d 309; Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767; Jyachosky v. Wensil, 240 N.C. 217, 81 S.E.2d 644; Elliott v. Killian, 242 N.C. 471, 87 S.E.2d 903; Kellogg v. Thomas, 244 N.C. 722, 94 S.E.2d 903; Scott v. Lee, 245 N.C. 68, 95 S.E.2d 89.

The statute G.S. § 20-71.1, however, presupposes a cause of action based on allegations of agency and of actionable negligence. '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 person of another * * *. It does not have, and was not intended to have, any other or further force or effect.' Hartley v. Smith, supra [239 N.C. 170, 79 S.E.2d 772].

Therefore, if the complaint in such cases fails to allege agency or actionable negligence, it is demurrable and is insufficient to support a verdict for damages against the owner of the vehicle. Parker v. Underwood, 239 N.C. 308, 79 S.E.2d 765; Osborne v. Gilreath, 241 N.C. 685, 86 S.E.2d 462.

In Parker v. Underwood, supra, the plaintiff alleged, '* * * that the collision occurred at the intersection of Hyde Park Avenue * * * and Liberty Street * * in the city of Durham, North Carolina; that at the time of the collision plaintiff's automobile was being operated by his son, in an easterly direction along Liberty Street, toward the said intersection, and the truck of defendant Thomas Hugh Underwood was being operated in a southerly direction along Hyde Park Avenue toward the said intersection, by defendant James R....