Smith v. Simpson, 454

Citation260 N.C. 601,133 S.E.2d 474
Decision Date11 December 1963
Docket NumberNo. 454,454
PartiesCharles B. SMITH, bnf., Plaintiff, v. Eddle Martin SIMPSON and Sarah Elizabeth Simpson, Gdn. of Wayne Rosser Simpson, and Thomas Robert McCants, Defendants.
CourtUnited States State Supreme Court of North Carolina

Bryan & Bryan and Wilson & Bain, Dunn, for plaintiff appellant.

Quillin, Russ & Worth, Fayetteville, for Thomas Robert McCants, defendant appellee.

Haywood & Denny, Durham, for Eddie Martin Simpson and Sarah Elizabeth Simpson, guardian ad litem of Wayne Rosser Simpson, defendant appellees.

MOORE, Justice.

None of plaintiff's exceptions relating to Wayne are brought forward in his brief--they are therefore abandoned. He seeks a new trial as to Mr. Simpson and McCants.

(1). It is contended that the court erred in its instructions to the jury on the second issue relating to the liability of Mr. Simpson under the family purpose doctrine.

Plaintiff alleges in paragraph 7 of his complaint that 'Eddie Martin Simpson owned the 1960 Chevrolet * * *, * * * the said automobile was owned and furnished by Eddie Martin Simpson for the use, pleasure, and convenience of his family; and that the defendant Wayne Rosser Simpson, who was a member of the family of Eddie Martin Simpson * * *, was permitted and allowed to use and operate the said 1960 Chevrolet for his own use, pleasure and convenience; and that he was * * * operating the said 1960 Chevrolet owned by his father pursuant to the family purpose for which it was furnished, and with the permission of his father * * *.' Mr. Simpson, answering, admitted that the automobile was registered in his name but denied the allegations of paragraph 7 of the complaint.

The evidence bearing upon the allegations of paragraph 7 of the complaint is in all material aspects uncontradicted and tends to establish the following facts: At the time of the accident Wayne was 18 years of age, lived in his father's home and went to school. He had always lived with his father. Mr. Simpson was a farmer and also operated a filling station. Wayne worked on the farm and was a member of his father's household. His father was head of the house. Wayne testified that he respected his father and was obedient to him. Until about a month before the accident Wayne had owned a 1957 Chevrolet, the title to which was registered in his own name (source not disclosed). In 1960 Wayne made a profit from a tobacco crop on acreage he himself had rented from a pulpwood company--he did the work, bought the fertilizer and paid all expenses of producing the crop. His father permitted him to keep these earnings. Wayne negotiated for the purchase of a new 1960 Chevrolet--his father had no part in the negotiations. The down payment was the 1957 Chevrolet and $400 in cash from his tobacco crop earnings; the balance was to be paid out of his tobacco crop the next fall. When the Motor Company refused to accept credit papers executed by Wayne, because he was a minor, Mr. Simpson, at Wayne's request, executed the note and conditional sales contract for the $1754.09 balance, applied for and took the title certificate in his name, and obtained in his name liability insurance. The insurance was an assigned risk policy because Wayne, the principal driver, was a minor. Wayne paid the premium. The registration card was mailed to Mr. Simpson who retained it in his possession. After the credit papers were signed Wayne drove the car home--the keys were delivered to him and he kept them continuously thereafter. Wayne bought the gas and oil for the car and stood for the repairs. He kept the car in his father's yard, drove it to school and anywhere he wanted to go without obtaining specific permission from his father. Mr. Simpson testified that Wayne 'has been going on his own since he was 16 without asking me (sic) when he could come or go.' Neither Mr. Simpson nor any other member of the family, except Wayne, used the Chevrolet. Mr. Simpson owned a pickup truck and an Oldsmobile which anybody in the family could use. He listed the Chevrolet for taxes along with his other motor vehicles, but no taxes had been paid at the time of the accident. Wayne testified: 'I was the only one who used the Chevrolet. It was mine.'

The court submitted to the jury this (second) issue: 'Was the defendant, Eddie Martin Simpson, the owner of the 1960 Chevrolet automobile for use as a family purpose automobile, and was Wayne Rosser Simpson using the 1960 Chevrolet automobile under such family purpose?' The jury after hearing the court's charge answered the issue 'No.'

After defining the family purpose doctrine the judge gave the following instruction:

'* * * (I)f another person had bought and paid for the automobile and and had it in their control and use, and the person in whose name is was registered was actually not the owner and had no control of the use of it, then the person who really purchased it and owned it, paid for it, and had the control and use of it would be the real owner.'

In applying the law to the facts of the case the judge told the jurors that in order to answer the second issue YES they must find that:

'* * * Eddie Martin Simpson had provided this automobile for the members of the family and Wayne Rosser Simpson was one, that at the time he was operating the automobile as a member of the family, (and that it was owned by Eddie Martin Simpson) and provided for the use and convenience and pleasure of the family * * *.'

He further instructed the jury '* * * (I)f you are not satisfied by the greater weight of the evidence that Eddie Martin Simpson was the owner of the 1960 Chevrolet automobile for use as a family purpose automobile, and that Wayne Rosser Simpson was using said 1960 Chevrolet automobile at the time in question under such family purpose, it would be your duty to answer it 'No'.'

The plaintiff excepted to the charge for that the judge made the application of the family purpose doctrine to the facts of this case depend upon the father's beneficial ownership of the Chevrolet rather than upon his right to control it.

The question raised is not that the family purpose doctrine was not submitted to the jury, but that it was limited so as to be applicable only if they found that Mr. Simpson owned the automobile. It will be observed that the plaintiff alleges that Mr. Simpson owned the automobile, and plaintiff's theory of the application of the doctrine, as set out in the complaint, is that the car was owned by Mr. Simpson. Plaintiff did not note an exception to the form or submission of the issue. Issues arise upon the pleadings. Williams v. North Carolina State Highway Commission, 252 N.C. 514, 518, 114 S.E.2d 340. A reading of the record of the trial leads to the definite impression that in offering evidence and cross-examining witnesses plaintiff focused his attention on the task of proving that Mr. Simpson owned the vehicle. The charge of the court was clearly based on the theory set out in plaintiff's pleadings. Plaintiff is in poor position to complain when the judge has tried the case in accordance with guide lines he himself has laid down. However, we choose to disregard these valid but technical principles of procedure. We consider the matter of sufficient moment to warrant an inquiry whether, assuming that Wayne was the beneficial owner of the automobile, there was sufficient evidence to require a submission of an issue as to Mr. Simpson's liability.

It is not essential to the application of the family purpose doctrine that the one upon whom it is sought to fix liability for the negligent operation of a family car be the owner. In Matthews v. Cheatham, 210 N.C. 592, 188 S.E. 87, the minor daughter of male defendant won an automobile in a contest and took title in her own name; she was a member of her father's household, kept the car in her father's garage with his automobile, and drove it only with the specific consent of her parents; all members of the family used it and the father maintained it, bought the gasoline and oil and paid for repairs, and listed and paid taxes on it; her mother was driving it at the time of the accident. In support of the ruling that the evidence was sufficient to take the case to the jury as to the father's liability, this Court said:

'In Watts v. Lefler, 190 N.C. 722, at p. 725, 130 S.E. 630, 632, this court quotes with approval the following statement from Berry on Automobiles (4th Ed.) § 1280: 'The rule is followed in some of the states in which the question has been decided, that one who keeps an automobile for the pleasure and convenience of himself and family, is liable for injuries caused by the negligent operation of the machine while it is being used for the pleasure or convenience of a member of his family.'

'Huddy's Encyclopedia of Automobile Law (9th Ed.), Vol. 7-8, page 324, states the rule: 'The person upon whom it is sought to fasten liability under the 'family car' doctrine must own, provide, or maintain an automobile for the general use, pleasure and convenience of the family. Liability under this doctrine is not confined to owner or driver. It depends upon control and use.' ' (Emphasis added)

'It is said to be one of the indispensable requisites of the family purpose doctrine that the person on whom it is sought to fasten liability under that principle owns, maintains, or provides an automobile for the general use, pleasure, and convenience of the family.' (Emphasis added) 5A Am. Jur., Automobiles.and Highway Traffic, § 601, p. 604. 'An indispensable requisite of the family purpose doctrine is that the person on whom it is sought to impose liability own, maintain, or furnish the automobile, and have or exercise some degree of control over its use. Thus, where the head of the family does not own, maintain, or control the family automobile, he is not liable under the family purpose doctrine for negligence in its use by a member of his family; liability may not be imposed on the head of a family by reason of...

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32 cases
  • Durrett v. Farrar
    • United States
    • United States Court of Appeals (Georgia)
    • October 29, 1973
    ...contributes substantially of his own means toward that end without expectation of reimbursement or compensation.' Smith v. Simpson, 260 N.C. 601, 611, 133 S.E.2d 474, 482 . . . It is important to remember however that ownership will not in and of itself create liability. (Citations.) 'To al......
  • Carver v. Carver
    • United States
    • United States State Supreme Court of North Carolina
    • April 30, 1984
    ...In rejecting this argument, the Court said: The agreed facts are sufficient to invoke the family car purpose doctrine. In Smith v. Simpson, 260 N.C. 601, 133 S.E.2d 474, it is said: 'The very genesis of the family purpose doctrine is agency. The question of liability for negligent injury mu......
  • Campbell v. Paschal
    • United States
    • Court of Appeals of South Carolina
    • May 28, 1986
    ...487 (1984); Herman v. Magnuson, 277 N.W.2d 445 (N.D.1979); Pesqueira v. Talbot, 7 Ariz.App. 476, 441 P.2d 73 (1968); Smith v. Simpson, 260 N.C. 601, 133 S.E.2d 474 (1963); Jerdal v. Sinclair, 54 Wash.2d 565, 342 P.2d 585 The family purpose doctrine had its genesis in the law of agency. Norw......
  • Herman v. Magnuson
    • United States
    • United States State Supreme Court of North Dakota
    • March 22, 1979
    ...e. g., Michaelsohn v. Smith, 113 N.W.2d 571 (N.D.1962); Pesqueira v. Talbot, 7 Ariz.App. 476, 441 P.2d 73 (1968); Smith v. Simpson, 260 N.C. 601, 133 S.E.2d 474 (1963). See also Annot., 8 A.L.R.3d 1191 (1966). In North Dakota, the master-servant relationship, not consanguinity, forms the th......
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