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.*430 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 *431 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. Underwood, eighteen-year old son of defendant Thomas Hugh Underwood, `with the express consent, knowledge and authority of the defendant Thomas Hugh Underwood'; and that the collision and resultant damage to plaintiff's automobile was caused by various acts of negligence of defendant James R. Underwood `and as the sole and proximate results thereof.'"
The defendant Thomas Hugh Underwood demurred to the complaint, for that the complaint did not allege a cause of action against him, in that "there is no allegation that connects the driver of the motor vehicle in question at the time of the collision in question with said Thomas Hugh Underwood as servant, agent or employee acting within the scope of his employment." The demurrer was sustained in the lower court and affirmed upon appeal to this Court.
The plaintiff is relying on Hartley v. Smith, supra, to take his case to the jury, although he states in his brief that his allegations are sufficient against the defendant owner, Mildred M. Clark, to take the case to the jury without the benefit of G.S. § 20-71.1.
An examination of the allegations of the complaint in the case of Hartley v. Smith, supra, and the admissions in the answer of the defendant owner of the motor vehicle involved therein, are so different from the allegations in the complaint and answer in the present case that the Hartley case is not controlling in this case.
The plaintiff herein filed a motion in this Court to amend his pleadings by adding in paragraph 5 of the complaint, after the clause, "* * * by and with her consent, knowledge, and permission," the words, "and as her agent and in furtherance of a family purpose." It is stated in the motion that the case was tried below on the family purpose theory. In view of the conclusion we have reached with respect to the allegations of the complaint, we are of the opinion that this motion should be denied.
If it be conceded (which it is not) that the allegations of the complaint are sufficient to support a verdict, if supported by competent evidence, without the aid of G.S. § 20-71.1, as contended by the plaintiff, in our opinion the plaintiff's evidence offered for the purpose of invoking the family purpose doctrine was insufficient to carry the case to the jury on that theory.
After the allowance of the motion of the defendant Mildred M. Clark for judgment as of nonsuit at the close of plaintiff's evidence, and after plaintiff's cause of action against the defendant William L. Clark, administrator of Charles Clark, deceased, *432 was submitted to the jury and a mistrial ordered, the plaintiff moved to set aside the ruling theretofore made sustaining the motion of Mildred M. Clark for judgment as of nonsuit. The court denied the motion and the defendant assigns the denial thereof as error.
It is common practice in the trial of cases involving a nonowner operator of a motor vehicle that when there is an involuntary nonsuit as to the owner, for the plaintiff to take a voluntary nonsuit as to the defendant operator. However, when a plaintiff elects to go to trial against the operator of the motor vehicle, after the owner has procured a nonsuit, the trial judge is not required to reverse his ruling on the motion to nonsuit because there has been a mistrial as to the remaining defendant.
In our opinion, the rulings of the court below with respect to the judgment as of nonsuit of Mildred M. Clark should be upheld, and it is so ordered.
Affirmed.