Reich v. . Cone

104 S.E. 530, 180 N.C. 267, 1920 N.C. LEXIS 80

• Court: Supreme Court of North Carolina
• Decided: November 4, 1920
• Status: Published

Opinion

Clakk, C. J.

Tbe court instructed tbe jury tbat tbe defendant, upon bis own evidence, was “responsible for tbe negligence of tbe man wbo was driving bis automobile, Clay Horn, provided tbe jury found tbat tbe collision was caused by tbe negligence of Clay Horn, as alleged, and tbat such negligence was tbe proximate cause of damage to tbe plaintiff’s automobile.” Tbis was error.

In Linville v. Nissan, 162 N. C., 99, tbe Court said: “Tbe owner of an automobile is not liable for personal injuries caused by it merely because of bis ownership”; and, again, “Even if tbe son bad been tbe servant of bis father in driving tbe machine, tbe father would not be liable for bis negligence unless tbe son was at tbe time acting in tbe scope of bis employment, and in regard to bis master’s business.” Tbis was quoted and approved in Bilyeu v. Beck, 178 N. C., 482, Allen, J., saying tbat tbe responsibility where tbe driver, though a child of tbe owner, is of mature years and experienced as a driver, is not dependent upon tbe ownership of tbe machine, but upon tbe principle of agency, express or implied, and distinguished those cases where tbe car is bought and being used for family purposes, when tbe injury occurs. See, also, Clark v. Sweanay, 176 N. C., 529.

When a motor car is used by one to whom it is loaned for bis own purposes, no liability attaches to tbe lender unless, possibly, when tbe lender knew tbat tbe borrower was incompetent, and tbat injury might occur. Armstrong v. Sellars, 182 Ala., 582; Erlick v. Heis, 192 Ala., 669; Campbell v. Arnold, 219 Mass., 160; Levyn v. Koppin, 183 Mich., 232; Freidbaum v. Brady, 128 N. Y., 121 (in which case tbe car was being driven by tbe owner’s chauffeur to whom it was loaned); Smith v. Burns, 71 Ore., 133; 29 Cyc., 39.

In Thorp v. Minor, 109 N. C., 152, it was held tbat where one loaned a horse to bis clerk to use for bis own purposes, and by bis negligence tbe horse was left unhitched, and, running away, caused damage, tbe owner was not liable, tbe clerk while using tbe horse not being in tbe lender’s employment or using it for bis purposes.

Error.