Wallace v. Squires

• Decision Date: 31 October 1923
• Docket Number: 332.
• Citation: 119 S.E. 569,186 N.C. 339
• Parties: WALLACE v. SQUIRES.
• Court: North Carolina Supreme Court

119 S.E. 569

186 N.C. 339

WALLACE v. SQUIRES.

No. 332.

Supreme Court of North Carolina

October 31, 1923

Appeal from Superior Court, Alamance County; Bond, Judge.

Action by Gladys Wallace against L. M. Squires. Judgment for defendant, and plaintiff appeals. Error.

Evidence held to show that the son was using the automobile with the consent of the father.

This was an action to recover damages for serious injury sustained by the plaintiff in an automobile collision near Burlington, November 6, 1921. The plaintiff, Miss Wallace and another young lady and two young men left Raleigh to drive to Greensboro in a Pope-Hartford roadster. On their return from Greensboro, about 1 1/2 miles from Burlington the defendant's car, driven by his son, going towards Elon College, met and collided with the car in which the plaintiff and her companions were riding about 7:30 p. m. The evidence of the plaintiff and witnesses is that the car in which she was riding was on the proper side of the road which was 16 feet wide, of ample width for two cars to pass; that it was comparatively straight for some distance, and that outside of the paved part of the road there was more than 3 feet on either side, and this was in good condition. The defendant's son had frequently driven over this road, knew its width and condition. The plaintiff's witnesses testified that they were blinded by the bright headlights of the defendant's car, which was approaching them very rapidly, and, just before it reached the car in which the plaintiff was riding, the defendant's car, which was a heavy Hudson touring car, swerved a little towards the plaintiff's car, struck it, turned it around in such way that it turned over, falling on the plaintiff and young Slater, who was driving at the time. Bishop, the other young man, was thrown clear of the car into an adjoining field. The plaintiff received very severe and painful injuries, her pelvic bone being broken in two places. The testimony of the physician gave in detail the extent and nature of her severe injuries, and the remedies he administered, and her suffering at the time and subsequently. These details are omitted, as the judgment is in favor of the defendant, which also renders it unnecessary to consider the assignments of error directed to the ruling of the court admitting or refusing to admit testimony showing the negligence of the driver, son of the owner of the car, in bringing about the collision.

The jury found, in response to the first issue, that--

"The plaintiff was injured by the negligence of Newmer Squires, son of the defendant, L. M. Squires, as alleged in the complaint."

The second issue was as follows:

"Was Newmer Squires the agent and servant of the defendant L. M. Squires at the time of said injury referred to in the complaint."

The plaintiff excepted to the second issue as submitted by the court, and assigns that as error, and also excepted to the charge and to refusal of prayer to charge.

The plaintiff had also tendered as issues the following, the rejection of which constituted the eighth assignment of error, to wit: (1) Was the plaintiff injured by the negligence of the defendant as alleged in the complaint? (2) Did the plaintiff by her own negligence contribute to her injury? (3) What injury, if any, is the plaintiff entitled to recover for of the defendant?

Upon the verdict, judgment was rendered in favor of the defendant. Plaintiff appealed.

Stacy, J., dissenting in part.

Carroll & Carroll, of Burlington, and Manning & Manning, of Raleigh, for appellant.

Long & Allen, of Durham, and Parker & Long, of Graham, for appellee.

CLARK C.J.

The plaintiff asked the court to charge that--

"If the jury should find from the evidence that the defendant purchased the car for the use of himself and his family, and that the defendant permitted his sons, including Newmer, to drive the said car, driving himself, his wife, or his daughters, and at times permitted the said Newmer to use said car for his own pleasure, and permitted him at times to use it in his business, driving it alone, and said Newmer used it at times without the express permission of his father; that on Sunday November 6, 1921, after the defendant had left home, but Mrs. Squires was at home and other members of the family, the said Newmer went to the open garage, which was unlocked, and the car was unlocked, and drove the machine out and came to Graham and took Miss Madge Andrews and Mr. and Mrs. Cox to ride, and during the ride the collision occurred, resulting in the injury of the plaintiff, then the jury will answer the second issue, 'Yes.' "

The court refused to so charge, but on the contrary instructed the jury, at the request of the defendant:

"If you should find from the evidence and by its greater weight that the defendant, L. M. Squires, owned the Hudson car, and that he used said car to some extent in his business and used it also as a pleasure car for himself and his family, and at times permitted his son to use said car as a pleasure car, but that said L. M. Squires had forbidden his son to take said car, except on those occasions when his said son should ask and receive permission so to do, and if you should further find from the evidence and its greater weight that on the occasion referred to in the complaint in this cause, Newmer Squires, the son of the said L. M. Squires, had taken said car without obtaining the consent and without the knowledge of his father, the said L. M. Squires, and was using the same, then I charge you to answer the second issue, 'No.' "

This instruction goes further than this court has ever held in undertaking to define the liability of the father for the acts of a minor child. It requires that, before finding the second issue that the son was the agent or servant of the defendant, the jury must find that he was driving the car at that particular time with the knowledge and express consent of his father, and that if they failed to do so by the greater weight of the evidence they must find that he was not acting as the agent or servant of the defendant.

In the latest utterance of this court upon this subject, Robertson v. Aldridge, 185 N.C. 292, 116 S.E. 742, the law applicable is thus stated by Hoke, J., speaking for a unanimous court:

"True, it is the recognized principle that a parent is not ordinarily responsible for the torts of a minor child, solely by reason of the relationship, and that generally liability will only be imputed on some principle of agency or employment. Brittingham v. Stadiem, 151 N.C. 299. Accordingly, it has been directly held with us, in case of injury caused by negligent use of automobiles, that no recovery can be sustained when it is made to appear that the machine was being operated by the minor at the time for his own convenience or pleasure, contrary to the parent's orders or without authority from the parent, either express or implied. Linville v. Nissen, 162 N.C. 96; Bilyeu v. Beck, 178 N.C. 481. But it is also held in our opinions by the great weight of authority that where a parent

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