Summary
In Smith v. Simpson, 260 N.C. 601, 611, 133 S.E.2d 474, 482 (1963), for example, the North Carolina Supreme Court held that a father who provided his co-signature to help his son obtain financing to purchase a car was not liable under the family purpose doctrine.
Summary of this case from Madrid v. ShryockOpinion
Filed 11 December 1963.
1. Appeal and Error 44 — Where, the pleadings, evidence and record, of the trial affirmatively show that plaintiff predicated his assertion of a defendant's liability under the family purpose doctrine solely upon the basis of such defendant's ownership of the vehicle, plaintiff is in no position to complain if the court submits the issue upon the theory advanced by plaintiff.
2. Automobiles 55 — The application of the family purpose doctrine does not depend upon ownership of the vehicle, and a person who is not the owner but who maintains or provides an automobile for the use, pleasure, and convenience of his family and who controls or has the right to control its use for such purposes, and who actually or impliedly authorizes members of his family to so use it, is liable under the family purpose doctrine for the negligent operation of the car by a family member, be he a minor or adult, a spouse, parent, brother, sister, niece, or even more remote kin, provided such person is a bona fide member of the household.
3. Same; Parent and Child 7 — A parent may not be held liable for the negligent operation of an automobile by his child merely by reason of the relationship, an automobile not being a dangerous instrumentality, and there being no contention that the parent knew that the child was a reckless driver so as to present the question of liability under G.S. 1-538.1.
4. Automobiles 55 — Evidence held insufficient predicate for application of family car doctrine. Evidence disclosing that the child, on his own initiative, negotiated the purchase of an automobile for himself, that he made the down payment with his own money and obligated himself to pay the balance of the purchase price out of his own earnings, but that because of his minority the seller would not accept his credit, so that, in order to consummated the sale, his father executed the note and conditional sales contract for the balance of the purchase price and applied for and obtained in his own name the certificate of title, registration card, and liability insurance, and that when the purchase was consummated the keys were delivered to the son and that he retained them continuously and exercised exclusive control in the use of the car and paid for its maintenance, is held insufficient predicate for the application of the family purpose doctrine.
5. Parent and Child 4 — If the father, with full knowledge of the facts and acquiescence therein, permits his son to receive his own earnings and does not restrict him in the use thereof, there is an emancipation pro tanto.
6. Appeal and Error 41 — The admission of incompetent evidence over objection cannot be held prejudicial where thereafter substantially similar evidence is admitted without objection.
APPEAL by plaintiff from Olive, J., September 1962 Session of MOORE, docketed and argued as case No. 452 at the Spring Term 1963.
Bryan Bryan and Wilson Bain for plaintiff appellant.
Quillin, Russ Worth for Thomas Robert McCants, defendant appellee.
Haywood and Denny for Eddie Martin Simpson and Sarah Elizabeth Simpson, Guardian ad litem of Wayne Rosser Simpson, defendant appellees.
SHARP, J., dissenting.
PARKER and BOBBITT, JJ., join in the dissent.
Action to recover damages for personal injuries resulting from a three-car collision.
The collision occurred about 11:30 P.M., 17 October 1960, on U.S. Highway No. 1 about 1 mile south of Vass in Moore County. At the point of the accident U.S. No. 1 is a 2-lane paved highway, 21 feet wide, and runs generally north and south. Plaintiff was a passenger in a 1960 Chevrolet operated by Wayne Rosser Simpson (hereinafter referred to as Wayne). The Chevrolet was registered in the name of Eddie Martin Simpson (hereinafter Mr. Simpson). Wayne was the minor son of Mr. Simpson, who was not in the car. Wayne was driving northwardly, came up behind a tractor-trailer and attempted to pass. When he got alongside the tractor-trailer two south-bound cars were meeting the tractor-trailer, the first a Plymouth and the second a Pontiac operated by Thomas Robert McCants. The Plymouth pulled to the shoulder. Wayne side-swiped it and ran head-on into the Pontiac. In the collision with the Pontiac plaintiff sustained injuries which paralyzed him from him waist down.
Plaintiff instituted this action against Wayne, Mr. Simpson and McCants. The jury found that plaintiff was injured by the negligence of Wayne and awarded $20,000 damages. It found that McCants was not guilty of actionable negligence and that Mr. Simpson was not liable under the family purpose doctrine. From a judgment upon the verdict plaintiff appeals.
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 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 not 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 had it in their control and use, and the person in whose name it 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 in 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. 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, this Court quotes with approval the following statement from Berry on Automobiles (4th Ed.) sec. 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, s. 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 his knowledge and consent to its use for a family purpose where he does not have ownership, possession, or control of the vehicle, but where the head of the family controls and maintains the vehicle he may be liable under the family purpose doctrine even though he does not own it." 60 C.J.S., Motor Vehicles, s. 433c, p. 1070. See also the discussions in Goode v. Barton, 238 N.C. 492, 78 S.E.2d 398; Foran v. Kallio, 355 P.2d 544 (Wash. 1960); Richardson v. True, 259 S.W.2d 70 (Ky. 1953); McNamara v. Prather, 127 S.W.2d 160 (Ky. 1939); Euster v. Vogel, 13 S.W.2d 1028 (Ky. 1929). It would seem that in Lynn v. Clark, 252 N.C. 289, 113 S.E.2d 427, in using the expression "owned, provided and maintained" we inadvertently used the word "and" instead of "or." So far as the facts of that case are concerned the inadvertence is of no importance — the defendant mother admitted ownership of the car.
In discussing Small v. Mallory, 250 N.C. 570, 108 S.E.2d 852, and Matthews v. Cheatham, supra, the commentator in 38 N.C.L. Rev. 250, 251, says:
"It seems that the true test for determining which member of the family is to be held liable under the doctrine is one of control. The basic question to be determined then is who controls the car. . . .
"The factors of ownership and maintenance have been used as a further guide in determining which member of the family controls the car. . . . (I)n Goode v. Barton it was expressly held immaterial whose funds were used to purchase the car, since liability under the doctrine `is not confined to owner or driver . . . [but] depends upon control and use.' The `use' referred to here can only mean that use for which the car was bought, i.e., use by the family as a general purpose car. Since ownership, both legal and equitable, has been held not to be determinative of control, it would seem that maintenance is the more important guide in determining control and, hence, in predicting family member on whom liability will fall. In taking this view of the doctrine, North Carolina is in line with the weight of authority." (Emphasis added).
"To impose liability under the (family purpose) doctrine it is essential to establish that the party on whom liability would be imposed actually or impliedly authorized the use of the vehicle. It must be subject to his control. The test is not who owns the vehicle but control or the right to control. Since ownership presumptively indicates the right to control, it is frequently stated as one of the elements necessary for the application of the doctrine. But one may in fact exercise control and direct the use of property without in fact being the owner." Griffin v. Pancoast, 257 N.C. 52, 125 S.E.2d 310.
It is the law then in North Carolina that one, not the owner, who maintains or provides an automobile for the use, pleasure and convenience of his family, controls or has the right to control it in such use, and actually or impliedly authorizes members of his family to so use it, is liable under the family purpose doctrine for the negligent operation of the car by a family member, causing injury. It has been held that the family purpose may extend to and be exercised by only one member of the family. Goode v. Barton, supra.
In considering plaintiff's exception to the charge, we assume as the exception requires us to do and as the jury seems to have found, that the motor vehicle was not owned by Mr. Simpson but was owned by Wayne. There is no evidence that Mr. Simpson maintained it or that he, or any members of his family other than Wayne, used or directed the use of it or exercised any control of it. Wayne was a minor son of Mr. Simpson, and at the time of the accident was a member of his household. The inquiry then is whether Mr. Simpson provided the Chevrolet for Wayne and had the right thereby, or for some other reason, to control its use.
It may be that the use by us of the expression "control and right to control" without some explanation and restriction has led the bench and bar into uncertainty. The question here as to Mr. Simpson's liability does not relate to his right to control his minor son, but his legal right to control the use of the 1960 Chevrolet. We are too inclined to think of the family purpose doctrine as a sort of antidote to juvenile delinquency or a palliative for traditional youthful recklessness. The doctrine is not confined to situations involving parent and minor child. It applies with equal force when the child is an adult. "It makes no substantial difference as regards the liability of a parent (under the family purpose doctrine) whether the child is a minor or an adult. The question of liability does not depend upon the relation of parent and child, and the parent is under no more legal obligation to supply an automobile for the use and pleasure of a minor child that he is for the use and pleasure of an adult child." Watts v. Lefler, 190 N.C. 722, 725, 130 S.E. 630. A person may be liable under the doctrine for damage caused by the negligence of spouse, parent, brother, sister, nephew, niece, grandchild or other of more remote kinship, or of one not of kin, provided he is a bona fide household member. Tart v. Register, 257 N.C. 161, 125 S.E.2d 754; Manning v. Hart, 255 N.C. 368, 121 S.E.2d 721; Westmoreland v. Gregory, 255 N.C. 172, 120 S.E.2d 523, Small v. Mallory, supra; Stansel v. McIntyre, 237 N.C. 148, 74 S.E.2d 345; White v. McCabe, 208 N.C. 301, 180 S.E. 704; McGee v. Crawford, 205 N.C. 318, 171 S.E. 326; 60 C.J.S., Motor Vehicles, s. 433d, p. 1071.
"The mere fact of the relationship does not render a parent liable for the torts of his child. Liability of the parent must be predicated upon evidence that the child was in some way acting in a representative capacity such as would make the master responsible for the servant's tort, or on the ground that the parent procured, commanded, advised, instigated or encouraged the commission of the tort by his child, or that the parent was independently negligent, as in permitting the child to have access to some dangerous instrumentality." 3 Strong: N.C. Index, Parent and Child, s. 7, p. 529; Insurance Co. v. Faulkner, 259 N.C. 317, 130 S.E.2d 645; Langford v. Shu, 258 N.C. 135, 128 S.E.2d 210; Griffin v. Pancoast, supra; Lane v. Chatham, 251 N.C. 400, 111 S.E.2d 598; Hawes v. Haynes, 219 N.C. 535, 14 S.E.2d 503; Bowen v. Mewborn, 218 N.C. 423, 11 S.E.2d 372. G.S. 1-538.1 has no application in the instant case. Plaintiff does not seek to impose liability herein upon Mr. Simpson on the ground that he knew Wayne was a reckless driver. And an automobile is not an inherently dangerous instrumentality. Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096; 8 N.C.L. Rev. 259. The State of North Carolina passes upon the qualifications of and issues drivers licenses to children over 16 years of age, and as a matter of public policy places its stamp of approval on the operation by them of motor vehicles. The relationship does not alone make a parent answerable for the negligent conduct of his minor child. There must be something besides parenthood to connect him with the wrong before he may incur liability. Linville v. Nissen, supra. The question in a case such as the one at bar is whether the child, be he a minor or an adult, was acting for the parent, was using the automobile for the purpose for which the parent provided it. Watts v. Lefler, supra. The very genesis of the family purpose doctrine is agency. The question of liability for negligent injury must be determined in that aspect. Vaughn v. Booker, 217 N.C. 479, 8 S.E.2d 603. The right and duty of a parent to control the activities of his minor child is not involved. It matters not whether Wayne was a minor or an adult. If Mr. Simpson had the right to control the 1960 Chevrolet, it must rest upon some ground other than the mere relationship of parent and child.
Ownership of personal property ordinarily carries with it the right of control and use. Griffin v. Pancoast, supra. For the purposes of this discussion, Wayne owned the car, not Mr. Simpson. A person having possession of an automobile by reason of a duty or license to preserve or use it, or by bailment, or acquiescence of the owner, or other special right, has the right to control its use. Examples: As executor, Chappell v. Dean, 258 N.C. 412, 128 S.E.2d 830; as president of corporation, Hexter v. Burgess, 184 S.E. 769 (Ga. 1936). Under the family purpose doctrine one who provides or maintains an automobile for the pleasure and convenience of his family is deemed to have the right, in the absence of circumstances requiring a different result, to control its use. In the instant case there is no evidence that Mr. Simpson maintained the car or had any special possessory right with respect thereto, so the question is whether he provided it. If he did not, there is no other status or relationship which bestows upon him the right of control.
The evidence is that Wayne personally negotiated with the Motor Company and agreed upon the terms of purchase of the automobile. He made the down payment by delivery of his 1957 Chevrolet, title to which was in his name, and payment of $400 in cash from his own earnings. When the purchase was consummated, the keys were delivered to him, he retained them continuously and exercised exclusive control and use of the car. He bought the gasoline and oil and took care of repairs. He paid the insurance premium. He was obligated to pay the balance of the purchase price from his tobacco crop, his own earnings. Because the Motor Company would not accept the credit instruments of a minor, Mr. Simpson, at Wayne's request, executed the note and conditional sale contract to secure the balance of the purchase price, applied for and obtained in his name the certificate of title, registration card and liability insurance. He listed the car for taxes. So far as the record discloses Mr. Simpson did not pay one cent on the purchase and maintenance of the car. What he provided was credit. His position was the same as if he had become co-maker on a note at the bank as an accommodation for Wayne. It was a service that a friend might have rendered as well. If Wayne defaulted Mr. Simpson had procedures for his protection. The question has been raised in some cases whether, by permitting a minor to use his earnings in purchasing a car, the parent was thereby providing the car. Foran v. Kallio, supra; Robinson v. Ebert, 39 P.2d 992 (Wash. 1955). A father is entitled to the earnings of an unemancipated child. But where a father permits his minor son to work for himself and receive the earnings of his own labor to do with as he wishes, there has been an emancipation with respect thereto. Jolley v. Telegraph Co., 204 N.C. 136, 167 S.E. 575; Lowrie v. Oxendine, 153 N.C. 267, 69 S.E. 131; Ingram v. Railroad, 152 N.C. 762, 67 S.E. 926.
With respect to emancipation and the purchase of an automobile, the facts in James v. James, 226 N.C. 399, 38 S.E.2d 168, are strikingly parallel to those in the instant case. Plaintiff's evidence tended to show that a minor lived in his father's home as a member of the household but worked else where and was permitted to receive and use his wages as his own, he bought a Ford and made the down payment by transfer of his old Chevrolet and some cash, his father executed the credit papers and took title in his name, the car was kept at his father's home, he, the son, paid the installments and the credit papers were delivered to him when the indebtedness was fully paid. Thereafter, the son married and was killed in service in World War II. His father claimed ownership of the automobile. The son's widow claimed it as an inter vivos gift from the son, and brought this suit for its possession. The father testified that he had fed and clothed his son, he, the father, bought the car and paid one-half the cost and made repairs, and the credit papers were delivered to him when final payment was made. There was judgment for plaintiff, widow. This Court granted a new trial on grounds not pertinent here. On the question of emancipation, the Court said: ". . . (T)he defendant argues that during the period covered by the installments alleged to have been paid by his son, the latter was a minor and that defendant was by law entitled to his earnings. If that principle can be extended to property purchased by the earnings of the son under the circumstances here outlined, the fact that the father, with the full knowledge of the facts and acquiescence therein, permitted the expenditure and purchase, if the evidence should so disclose upon a second trial, may, with other pertinent evidence, be taken into consideration upon the question of emancipation." In the case at bar the facts are not in dispute. Mr. Simpson permitted Wayne to receive his earnings and did not restrict Wayne in the use thereof. It was Wayne's decision to buy the car, he negotiated all of the terms of purchase. If the question of emancipation is pertinent here, which is extremely doubtful, there was, under the undisputed facts, an emancipation pro tanto.
We are of the opinion that Mr. Simpson did not provide the automobile. His part in the transaction was only incidental and secondary. His acts amounted to an accommodation, an extension of credit. The decision to purchase and acquire the car was made by Wayne. The transaction was Wayne's idea, he managed it and took responsibility for it. In order to qualify as a provider under the family purpose doctrine one must be a principal mover, one who intends to provide for another or others the particular thing, the automobile, and takes steps on his own responsibility to see to the consummation of the transaction, and contributes substantially of his own means toward that end without expectation of reimbursement or compensation. The court did not err in failing to submit the second issue to the jury on the theory of "control or right to control," apart from ownership in Mr. Simpson. There was ample evidence to warrant the court in submitting the issue on the theory of ownership by Mr. Simpson, especially in the light of G.S. 20-71.1. The court did so present the matter. The jury has determined the question.
It was suggested that the decision we have reached would overrule Tart v. Register, supra; Elliott v. Killian, 242 N.C. 471, 87 S.E.2d 903, and Goode v. Barton, supra. These cases are admittedly of the borderline variety, but they are distinguishable from the case at bar. In the Tart case, the driver of the car at the time of the accident was a minor. The car was given her by her mother and uncle as a graduation gift. She, the minor, worked and earned wages, bought the gas and oil for the car and paid for the upkeep, drove the car to and from work and wherever she pleased without special permission of her mother, in whose household she lived as a member of the family. The title was in the mother's name. The mother had a car of her own but also used the daughter's car at times. We held the evidence sufficient to go to the jury as to the liability of the mother under the family doctrine. It will be observed that the mother provided the car for the use of the daughter, and the mother also used the car without the specific consent of the daughter. In Elliott a minor, member of his father's household, purchased a car and made a part of the down payment — his father paid a part. His father executed credit papers, took title and insurance in his, the father's, name, paid part of the insurance premiums, paid some of the installments on the note, and drove the car at times. The car was also used at times for the benefit of other family members. Obviously there was evidence that the father was a principal in providing the car and exercised control. In Goode the minor son of the adult defendant was a student at the University. The car was purchased by the father, with funds belonging to the son. The title certificate was in the name of the father. The car was maintained with funds provided by the father.
At best the family purpose doctrine is an anomaly in the law. This Court was reluctant to adopt it initially. As the use of motor vehicles increased the Court gradually expanded the application of the doctrine. We are not disposed to extend the doctrine in this State beyond the limits already reached. Grindstaff v. Watts, 254 N.C. 568, 574, 119 S.E.2d 784. The importance of the doctrine in North Carolina has been greatly reduced by the Financial Responsibility Acts. G.S., Ch., 20, arts. 9 and 9A. See 38 N.C.L. Rev. 249, footnote 4.
(2). This brings us to a consideration of plaintiff's exceptions bearing upon the third issue, McCants' negligence.
McCants offered no evidence. Over the plaintiff's objection, followed by a motion to strike, the court permitted the investigating officer to testify on cross-examination, in answer to a question by counsel for Simpson, as follows:
"Mr. McCants said that he was proceeding up a hill behind a car, which he estimated about eight car lengths behind this vehicle. (He said) `suddenly I was aware of the vehicle coming over the hill from the opposite direction meeting us. He was on his side and everything seemed O.K. until the car ahead of me served right toward the ditch, and I realized there was a second vehicle approaching over the hilltop, and in my lane. This pair of headlights approaching seemed to be even to the right of the center of my lane. It all happened so suddenly that I don't recollect having time to swerve toward the ditch. I think that the fact that his headlights were so far over in my lane I could not swerve right'."
Thereafter, without objection, the officer said:
"Mr. McCants indicated that he was following behind the Buie vehicle proceeding in a southerly direction proceeding up a hill behind a car; that the car in front swerved to the right toward the ditch, than he saw there was a second vehicle ahead of him and that the vehicle ahead of him was coming towards him. . . . My report indicates that Mr. McCants noticed the danger of the accident one hundred feet ahead and that he was going fifty miles per hour at that time. Mr. McCants told me he was going approximately fifty miles per hour at the time of the collision."
J.L. Jones, a witness for plaintiff, also testified without objection:
"He (McCants) told me he was following the taillights of a car and they disappeared and the headlights was right in his face, and that he did not have time to put on brakes."
The patrolman's recitation of McCants' narrative of events preceding the accident, to which plaintiff objected, was clearly incompetent as hearsay. Since McCants did not testify, it was not corroborative. It was not an admission against his own interest; it was a self-serving declaration which, if true, completely exonerated McCants of any blame for the accident. Although offered by the defendant Simpson by way of cross-examination, it did not tend to exonerate Simpson of negligence; it tended only to contradict plaintiff's case against McCants. Brothers v. Jernigan, 244 N.C. 441, 94 S.E.2d 316; Stansbury: North Carolina Evidence, 2d Ed. ss. 140, 167; 4 Wigmore on Evidence, 3d Ed., s. 1048.
However, the substantially similar statements made by McCants thereafter admitted without objection cured the error. Strong, North Carolina Index, Appeal and Error, s. 41; Hall v. Atkinson, 255 N.C. 579, 122 S.E.2d 200. The other exceptions relating to the exclusion of evidence have been carefully considered. They are without merit.
The charge of the court, when read contextually, properly presented the law applicable to plaintiff's contention that McCants was following the Buie car too closely without keeping a proper lookout. On all the evidence, the jury concluded that the negligence of young Simpson in attempting to pass the tractor-trailer in the face of on-coming traffic was the sole proximate cause of this unfortunate collision. As to the defendant McCants, plaintiff has failed to show any prejudicial error in the trial below.
In the trial below we find
No error.