White v. McCabe
| Citation | 180 S.E. 704,208 N.C. 301 |
| Decision Date | 26 June 1935 |
| Docket Number | 29. |
| Parties | WHITE v. McCABE et al. |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Pasquotank County; Moore, Special Judge.
Action by Dr. J. H. White against Aubrey G. McCabe, administrator of the estate of J. T. McCabe, deceased, and Margaret McCabe. Judgment for plaintiff, and defendants appeal.
Affirmed as to defendant administrator, reversed, and new trial ordered as to defendant Margaret McCabe.
In automobile guest's action against host's administrator and daughter, instruction that host's negligence was imputable to daughter, owner of automobile held error, where although father was using automobile with daughter's consent, it was for his own purposes and in no way connected with daughter.
Civil action to recover damages for an alleged negligent injury caused by a collision between two automobiles; one a Pontiac sedan owned by Margaret McCabe and driven at the time by her father, J. T. McCabe; the other owned and operated by R. J Morse. The plaintiff was a guest in the McCabe car. The allegations of negligence in the present action are all leveled against the driver and owner of the car in which the plaintiff was riding.
The collision occurred Sunday, September, 3, 1933, about 7:30 p m., near Campbell's filling station on the highway between Moyock and Sligo in Currituck county, and as a result J. T. McCabe was killed and the other occupants were injured. The deceased had invited the plaintiff and two other friends to go with him on a pleasure drive from Elizabeth City to Virginia Beach. They were on the return trip. The car was being used with the owner's consent, though she was not present.
It is in evidence that the car was being driven on the wrong side of the road and at a high rate of speed, between 50 and 60 miles an hour, at the time of the impact. The defendants, on the other hand, offered evidence of somewhat equivocal character that the Morse car was responsible for the collision. It was not quite dark-just getting dark-and cars then upon the highway were being driven without lights.
In selecting the jury, the plaintiff, over objection, asked if any juror was employed by or interested in any liability insurance company. (Motion for mistrial; overruled; exception.) The court found that these questions were propounded in good faith.
M. T. Bohannon, an attorney of Norfolk, who investigated the accident, testified for the defendants. He was asked on cross-examination if he did not represent the Liability Insurance Corporation, Limited, of London. He answered that he represented the Employers Liability Insurance Corporation. Then, further: " The court found that these questions were propounded in good faith to show the partiality and bias of the witness. It further appears in the agreed statement of case on appeal:
With respect to the liability of Margaret McCabe, adult daughter of J. T. McCabe and owner of the car, it is in evidence that she lived with her father and managed his house. The father paid all the expenses of the home. Her brother, A. G. McCabe, and his family also lived in the same household. The Pontiac sedan was used by adult members of the household, thus constituted, at their pleasure, without immediate permission from the feme defendant; this being particularly true of her father, who used the car more frequently than any other member of the family.
The feme defendant owned still another car, which was reserved for her own personal use. She was away from home on September 3, 1933. J. T. McCabe went driving practically every Sunday. He was on his own pleasure the day he was injured. "He was not going on any business for Margaret or any pleasure for her; just for himself and his friends."
Upon the foregoing evidence, the court instructed the jury to answer the issue of negligence against the feme defendant, if the negligence of her father was found to be the proximate cause of plaintiff's injury. Exception.
In apt time, the defendant administrator asked the court to instruct the jury that the McCabe estate would not be liable for simple or ordinary negligence on the part of J. T. McCabe, and would only be liable for gross or wanton negligence on his part. (Prayer refused; exception.)
Separate issues of negligence were submitted to the jury and answered in the affirmative as to each defendant, and damages awarded. Judgment accordingly, from which the defendants appeal,...
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