Watts v. Lefler

• Decision Date: 16 December 1925
• Docket Number: 500.
• Citation: 130 S.E. 630,190 N.C. 722
• Parties: WATTS ET AL. v. LEFLER ET AL.
• Court: North Carolina Supreme Court

130 S.E. 630

190 N.C. 722

WATTS ET AL. v. LEFLER ET AL.

No. 500.

Supreme Court of North Carolina

December 16, 1925

Appeal from Superior Court, Cabarrus County; Lane, Judge.

Separate actions by Melzie Watts, by Wiley V. Davis, by Mosie Reel, by J. N. Reel, and by Chas. E. Turner against Lewis Lefler and A. F. Lefler, tried together. From a judgment of nonsuit as to defendant A. F. Lefler, plaintiffs appeal. Reversed.

Evidence held sufficient to present question for jury whether father had intrusted automobile to his son for family use.

The plaintiffs each bring a separate action, four in all, to recover damages from the defendants on account of injuries and damages sustained by them. The suits were brought by reason of the alleged negligence of the defendants, Lewis Lefler and his father, A. F. Lefler. It is contended that Lewis Lefler was driving an automobile, alleged to be his father's car, for "family purpose," in a careless, reckless, and negligent manner, on the public highway, and running into the motor truck upon which plaintiffs were riding on the said highway. The defendants pleaded contributory negligence of plaintiffs. The four cases, by consent of parties, were tried together.

Facts.

Lewis Lefler, about 21 years old, a son of A. F. Lefler, was driving a Hup touring car at about 9 o'clock p. m. on the 3d day of August, 1923, on the highway between Concord and Mt. Pleasant, about two miles from Concord, when the collision took place. W. P. Mabery testified:

That he was sheriff of Cabarrus county at the time. He went out to where the collision occurred, and went after defendant Lewis Lefler. That he went to his father's home. That he knocked, and Mr. A. F. Lefler answered. That he asked if Lewis was at home. He called, and Lewis answered, and Mr Lefler recognized who it was. Mr. Lefler said, "What do you want with him?" I said, "He has had a wreck down the road, and there is a crowd of people hurt, and I came after him." The boy never resisted. Mr. A. F. Lefler said "He has wrecked my Hup," and he seemed to be worried quite a lot. That he brought the boy to town, but his father did not come that night. That night or next morning he looked at the Hup touring car at Lefler Motor Company, and observed that the left hand fender was bent up, and the pin where you let the top back, that it rests on, had some blood and matter on it. That it was at least half past 10, perhaps 11 o'clock, when he went to Lefler's home.

"Q. At the time A. F. Lefler said, 'He has wrecked my Hup,' you had not said anything about what car it was? Answer: No, sir.

Q. You just said there was a wreck? Answer: Yes, sir, I said the boy has had a wreck on the road, and hurt some people, and I have got to take him to town, and he made this remark, 'He has wrecked my Hup.' "

Voit Barnhardt testified in part:

"That he knew this Hup car, and saw it often; that he had seen A. F. Lefler and different ones of his family riding in it; that he had seen Lewis Lefler driving it."

Buford Corzine testified in part:

"That he was working for the Lefler Motor Company as salesman at the time of this collision; that he had seen A. F. Lefler riding in the Hupmobile five passenger several times; had seen him riding with his sons, his wife, and youngest boy, and with Lewis Lefler one time; that he saw a five passenger Hupmobile in the shop after this collision next morning about 11 o'clock. The back curtain and corner of the body was damaged some by the top carrier, the left-hand corner. The left rear fender was bent a little, and the pin which holds on the top was bent a little, didn't examine it close."

H. C. McEachern testified in part:

That he was a nephew by marriage of A. F. Lefler. He lived about 1 1/2 miles by the road from A. F. Lefler's. That the day of the collision he helped thresh wheat at A. F. Lefler's with other members of his family; went there early in the morning, and got through near sundown. Ate supper. Steve Lefler took him and his son home in his Hup car. That A. F. Lefler always had a Hup. He supposed it was his. He had a Hup he used for the family. After Steve took him home, Steve went on to Mr. Nezbits'. He saw defendant Lewis Lefler at his home between 8 and 9 o'clock.

"Q. How did he come there? Answer: He brought my daughter and his brother and some of my wife's kinfolks from Salisbury. Brought them from Mr. Lefler's to my house in a Hup automobile.

Q. Is that the Hup that is kept there by Mr. Lefler? Answer: Yes, sir."

That he had seen that particular Hupmobile at Mr. Lefler's in the yard, but couldn't say how many times. That he had seen Mr. Lefler, and other members of his family, riding in his Hupmobile with Lewis Lefler driving, going to church. etc. That Lewis Lefler was living at his father's at the time of this collision, was single, and had made his home there all his life up to this time. That he did see Lewis Lefler when he left the house of witness, and he was driving this particular Hupmobile at that time. That Steve had his car and gone. Lewis Lefler and witness' son went off in the Hup together.

At the close of the evidence for plaintiff, the court below granted defendant A. F. Lefler's motion for judgment as of nonsuit. The usual issues submitted in such cases (negligence, contributory negligence, and damages) were found by the jury in favor of plaintiffs. Defendant Lewis Lefler made no appeal. The main controversy is over the nonsuit as to defendant A. F. Lefler.

Exceptions and assignments of error as to granting the nonsuit and exclusion of evidence were duly made by plaintiffs and appeal taken to the Supreme Court. The material assignment of error and the necessary evidence will be considered in the opinion.

J. L. Crowell and H. S. Williams, both of Concord, for appellants.

M. B. Sherrin and Frank Armfield, both of Concord, for appellee A. F. Lefler.

CLARKSON J.

The plaintiffs' assignments of error, as to the exclusion of evidence, will not be considered. The questions may not arise on another trial of the case. The main question we will consider: The court below granting the motion of defendant A. F. Lefler for judgment as in case of nonsuit at the close of the plaintiffs' evidence. C. S. § 567.

The accepted rule is:

"On a motion to nonsuit, the evidence is to be taken in the light most favorable to plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom." Barnes v. Utility Co., 190 N.C. 385, 130 S.E. 2.

In Allen v. Garibaldi, 187 N.C. 799, 123 S.E. 66, it was said:

"In fact, is is frankly conceded by the defendant that the decision in Wallace v. Squires, 186 N.C. 339 must be overruled if his motion for judgment as of nonsuit is sustained in the present case. Without deciding whether we shall follow all that was said in that case, it is sufficient for present purposes, to state that the 'family purpose' doctrine, with respect to automobiles, has been adopted as the law of this jurisdiction in several recent decisions. Robertson v. Aldridge, 185 N.C. 292 ; Tyree v. Tudor, 183 N.C. 340 (modified in another respect in Williams v. R. R. [ 187 N. C.] ante, p. 354 ); Clark v. Sweaney, 176 N.C. 529 ; s. c., 175 N.C. 280 ; Williams v. May, 173 N.C. 78 ; Taylor v. Stewart, 172 N.C. 203 . For an extended discussion of this doctrine, see 33 Yale Law Journal, 780, and note to Arkin v. Page, 287 Ill. 420 , as reported in 5 A. L. R. 216." "When a car owner gives it over to the use of his family, and permits it to be operated by the dependent members thereof, the individuals to whom it is so intrusted may properly be considered his agents in such a sense that their negligence in the use of the car is imputable to him even though the driver of the car is the adult son of the owner, who is a member of his family. In cour

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