Ewing v. . Kates

145 S.E. 673, 196 N.C. 354, 1928 N.C. LEXIS 372

• Court: Supreme Court of North Carolina
• Decided: December 12, 1928
• Status: Published

Opinion

Stact, C. J.,

after stating the case: It was said in Robertson v. Aldridge, 185 N. C., 292, 116 S. E., 742, that where a parent owns a car for the convenience and pleasure of his family, a minor child who is a member of the family, though using such car at the time for his own purposes with the parent’s consent and approval, will be regarded as representing the parent in such use, and the question of liability for negligent injury may be considered and determined upon that basis. Clark v. Sweaney, 176 N. C., 529, 97 S. E., 474; S. c., 175 N. C., 280, 95 S. E., 568.

The trial court evidently gave the instruction, which constitutes one of the defendant’s exceptive assignments of error, upon this principle of law, and, under a certain state of facts, the instruction might not be objectionable. But there is neither allegation nor proof to bring the instant case within the “family purpose” doctrine. Allen v. Garibaldi, 187 N. C., 798, 123 S. E., 66. Hence, we think the instruction, as given, must be held for error on authority of what was said in Linville v. Nissen, 162 N. C., 95, 77 S. E., 1096, and Bilyeu v. Beck, 178 N. C., 481, 100 S. E., 891.

New trial.