Smith v. Simpson

Shaep, J.,

dissenting as to toe defendant Eddie Martin Simpson. The family purpose doctrine has .been stated and restated many times by this Court ¡add, collectively, toe cases define it as follows.: Where toe head of ¡a 'household owns, keeps, provides, or maintains an automobile for toe convenience and pleasure of his family, he iis liable for injuries caused by -the negligent operation o;f toe vehicle by any member of his family who .is using toe vehicle for toe purpose for which -it was provided. Watts v. Lefler, 190 N.C. 722 , 130 S.E. 630 ; Grier v. Woodside, 200 N.C. 759 , 158 S.E. 491 .

The necessity of affording greater protection to toe ever increasing number of persons injured on our highways originated the family purpose do'ütrine. The rationale is that a father, or other head of a .household who has provided an automobile for toe pleasure .and convenience of 'his family, has made their transportation for this purpose hiis business, and the family-member operator is regarded .as representing toe family-member provider in such use. The result puts toe financial responsibility of the paterfamilias -behind toe vehicle he has furnished for his family’s use while it is being thus operated. Dependent members of a family ¡are most often financially irresponsible ¡and toe minor member’s, like Wayne Simpson in this case, unable to- obtain adequate insurance ¡coverage.

Under toe .pleadings and evidence, as toe opinion makes ¡clear, Mr. Simpson can ¡be held liable in this case ¡only if the family purpose doctrine is -applicable to the Chevrolet .which Wayne was operating *615 at the time he negligently injured the plaintiff. The facts relating to its purchase, title, and use are fully set out in the majority opinion and ■are not in dispute. Therefore, the legal consequences to Mr. Simpson of Wayne’s negligence would be the subj act of a peremptory instruction to' the jury.

It is established that liability under the family car doicitrine does not depend upon 'ownership -of the 'automobile if -it is subject to the control off the head of the household. Therefore, the fact that Mr. Simpson never attempted to- control either the car or the comings or goings of his son is not determinative of his legal liability for plaintiff’s injuries. “The test is not who owns the vehicle but control or the right to control.” (Italics mine). Griffin v. Pancoast, 257 N.C. 52 , 125 S.E. 2d 310 ; Matthews v. Cheatham, 210 N.C. 592 , 188 S.E. 87 ; Goode v. Barton, 238 N.C. 492 , 78 S.E. 2d 398 ; Elliott v. Killian, 242 N.C. 471 , 87 S.E. 2d 903 ; Tart v. Register and Flowers v. Register, 257 N.C. 161 , 125 S.E. 2d 754 . Therefore, the decisive question here is whether Mr. Simpson had the right to control the use of the Chevrolet which Wayne was driving on the occasion in question.

This right is -in mo wise dependent upon his right to control his minor ison and, under this evidence, his liability for Wayne’s negligent operation of the automobile would have been unchanged had Wayne been an ■adult. Of course, in the exercise of hie parental authority, Mr. Simpson did have the right to control Wayne’s use of the automobile. Whatever the actualities, the legal right of a parent to' 'control his minor child is in no degree 'diminished or nullified when the child becomes the owner of an automobile. “A parent can, and often should, forbid his minor child to use ian automobile . . . the entire ownership of which may rest in the minor.” Robinson v. Ebert, 180 Wash. 387 , 39 P. 2d 992 . Certainly, the right .to control his child does not give a father the unrestricted right to control the child’s property. Because a father could forbid his son to drive 'the son’s car on a Saturday night, it does not fallow that he could legally require the son to turn the car over to' another member of the family for the evening. However, in- this case, we are not concerned with the liability of a father for the tort of his son while operating an 'automobile owned and maintained solely by the minor son. In such a case this Court 'has -held the family purpose doctrine inapplicable. Griffin v. Pancoast, supra.

Here, Wayne kept the keys to the Chevrolet but his father held the legal title to it. The registration card and the insurance were in Mr. Simpson’s name. He listed it for taxes in 'his name. Although Wayne had made the down payment, Mr. Simpson had primarily obligated himself to pay $1,754.09, the balance of the purchase price due in the *616 fall of 1961. The holder of (the mote and 'conditional sales -contract securing that balance certainly looked -to- Mr. -Simpson, as the principal obligor and not as an accommodation endorser. Wayne’s only hope of paying for the car -was hi-s expectation -o-f -a profitable tobacco crop in 1961. Hio-wever, hie 1960 crop /had netted him only four (hundred dollars.

In ■the most practical -sense, Mr. Simpson had provided this automobile for 'his son’s pleasure .and convenience -and had made it possible for him -to operate it upon the highways -o-f the -state. To hold otherwise iis to -be unrealistic. Without -bis father’s credit -and permission, W-ayn-e could neither have -acquired the automobile, maintained it, nor kept it at hi-s father’© home where he lived and wais supported as an unemanaipated -child. Indisputably, Mr. Simpson wanted hi-s s-on to enj o-y the status -and -convenience which the unrestricted us-e of -an- automobile gives -a teenager today. Therefore, Wayne’s -operation of the vehicle -for that purpose became Mr. Simpson's business when he provided hi-s son .with the use o-f a -Chevrolet registered in Mr. Sim-pson’s name, insured in his name, and obtained with hi-s -credit. In my opinion, as long as Mr. Simpso-n allowed title to- the automobile to remain in hiis name for .that purpose, he had tire right to- ioo-ntro-1 it even- though equitably he -and Wayne were j-o-in-t owners of the vehicle.

“The fact that a parent has titl-e to- a motor vehicle is, in -and of itself, sufficient to justify the -application of the family purpose doctrine Where -the doctrine is otherwise applicable, -even -though the vehicle -has been entirely paid f-or by tire child- in question, and the child has the beneficial ownership -thereof.” 8 Am. Jur. 2d, Automobiles and Highway Traffic § 590.

It -does not take -a vehicle out o-f the scope of the family car doctrine (that it -was provided for one member of the family -alone. Goode v. Barton, supra. Surely, if a wealthy -father with eight -children.- living in hie household .provided an .automobile for each child, it -could not be successfully -contended that each c-ar -did not -come within the family purpose -doctrine. This doctrine is n-ot restricted to- -a single car.

The evidence in this -case illustrates graphically the factors which originally brought the family purpose doctrine- into- being as an instrument of public policy. 38 N.C.L. Rev. 249; McCall, The Family Automobile, 8 N.C.L. Rev. 256. It -suggests ¡that the -abdication by parents of the right and duty to -control their teenage children, whom they enable to- acquire automobiles- which they c-anno-t afford -and lack the -discretion to o-per-ate safely, may -be the explanation of the following istaitisticis furnished by the North Carolina Department of Moto-r Vehicles:

*617 In 1960, 32.11 percent of all drivers involved in motor vehicle accidents in •this State were .in the 16 through 24 -age group. Nationwide, tlhe percentage for this age group wais 28.86 percent. In 1961, persons under 20 years old 'composed 6.64 percent of the 'drivers in this State but they bad 14.29 percent of the accidents. More drivers in the 16 to 20 age bracket were killed than in any other. In the nation, traffic accidents are the leading cause of deaths among persons between the ages of 15 and 24.

Since this Court first recognized it in Linville v. Nissen, 162 N.C. 95 , 77 S.E. 1096 (1913) (See Griffin v. Pancoast, supra, p. 55) it has said many times that the family purpose doctrine is “firmly embedded on the law of this 'State.” Grindstaff v. Watts, 254 N.C. 568 , 119 S.E. 2d 784 ; Ewing v. Thompson, 233 N.C. 564 , 65 S.E. 2d 17 ; Elliott v. Killian, Goode v. Barton, supra. However, the majority now declares that the 'doctrine is an anomaly in the law which the Court is not disposed to extend; that the Court wais reluctant to adopt it initially; and that its importance has been greatly reduced by 'the Financial Responsibility Act. The plaintiff in this case, made a paraplegic by the gross negligence of Wayne, eanniot be expected to agree. The inisurence on Wayne’s Chevrolet was an assigned risk “because Wayne, the principal driver, was a minor.” Five thousand dollars was the limit of the coverage.

To hold Mr. Simpson liable would not extend the doctrine beyond the limits we have already reached. This case comes within the rule of Tart v. Register and Flowers v. Register, Elliott v. Killian, and Goode v. Barton, supra, and it cannot be distinguished from Register . In Register , the mother held1 title to the automobile which she and .another had given her minor daughter. The daughter bore the expense of the ear. The fact that the mother occasionally used the daughter's car instead of her own, could miahe no difference in her liability for the daughter’s negligent operation of it. In this case, can it be doubted that Mr. Simpson would have used the Chevrolet had he ever needed an automobile at a time when his Oldsmobile was unavailable? It is noted that in this case Mr. Simpson’s credit is presently providing the oar for Wayne whereas in Register the another’s provision was a fait accompli when she gave the car (completely paid for so- far as the record in that case reveals) to the daughter.

The majority opinion defines la provider as follows: “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 takas steps on his own responsibility to see to the consummation of the transaction, and contributes *618 substantially of ibis own means toward that end without expectation of reimbursement or compensation.”

This definition appears to have been tailored to fit the mother in Register . It fails to fit Mr. Simpson only because it includes the requirement that a provide!' must not expect reimbursement or compensation. Tims does the majority seek here to avoid the result of Register . It is 'assumed that iby the descriptive phrases, “.a principal mover” and one who “takes ¡steps on his own responsibility,” are not meant to suggest or require that the idea of purchasing the car must originate with the provider. No doubt many a father, who' never thought to' make such an expenditure, has 'Succumbed to the importunities and blandishments of a son or daughter who* thought the family needed another car.

Certainly, in a legal sense, Mr. Simpson 'became -tine principal mover and he took steps on his own responsibility when he consummated the purchase of the Chevrolet by signing the note iand conditional sales contract to secure the balance due on the automobile, when he had the title issued in his name .and applied for the license, and when he applied for the insurance — an assigned risk. Incidentally that insurance policy would cover Wayne, not as the owner of the ear, but because he was operating it with the consent of the named insured, Mr. Simpson!

Under the 'majority’s definition of .a provider, in the absence of am admission, it will :be extremely difficult for a plaintiff ever again to prove that 'an automobile registered in the fatheris name, but used by a son for bis own, pleasure and convenience, i© a family purpose car. All that the solvent, inadequately insured father need do¡ to. avoid liability is to assert that he paid for the car, took title in his own name, and made it available for the use of his teenage son (an assigned risk!) upomtihe boy’s promise to reimburse him some day. The law would not hold the son to such a contract. The father could no more recover the purchase price of the car from a minor son who chose to disaffirm the contract than could a dealer who had sold an automobile to a minor. Should this Court permit such an unenforceable contract to nullify the family purpose doctrine which was created in the public’s interest to protect it from financially irresponsible minnns? I do not think so..

In failing to make the application oif the family purpose doctrine dependent upon the .father’s right to. control the automobile .being operated by Wayne as distinguished from his beneficial ownership therein, it is my opinion that the trial judge committed error requiring a new trial as to the defendant Eddie Martin Simpson. I concur in the majority opinion that there is no error in the trial as to McCants.

PARKER & Bobbitt, JJ., join in the dissenting opinion.