McGee v. . Crawford
171 S.E. 326
N.C.
1933
Check Treatment
BbogdeN, J.

"Was M. C. Crawford a member of the family of his grandfather, W. M. Crawford, within the purview of the family purpose doctrine, imposing liability for automobile injuries?

It is conceded that if M. C. Crawford was a member of his grandfather’s family and his grandfather kept the Ford truck for the combined purpose of “business and pleasure of the family” that, the defendant would be liable for the negligence of his grandson. Upon the other hand, if the said M. O. Crawford was an employee of the defendant at the time and using the car exclusively for his own pleasure and purposes, then the defendant would not be liable to plaintiffs intestate.

This Court has heretofore undertaken to set forth the essential facts constituting the family relationship for purposes of determining the liability for services rendered. It is conceived that the same principle would apply to cases of the type involved in this appeal. In determining the question as to whether a grandchild could recover for services rendered a grandfather, this Court in Dodson v. McAdams, 96 N. C., 150, said: “It seems to be settled law — certainly in this State — that if a grandfather receives his grandchild or grandchildren into his family, and treats them as members thereof — as his own children — he and they are in loco parentis et liberorum, and hence, if the grandchild in such case shall do labor for the grandfather, as a son or daughter does ordinarily as a member of the family of his or her father, in that case, in the absence of any agreement to the contrary, no presumption of a promise on the part of the grandfather to pay the grandchild for his labor arises; the presumption is to the contrary. The grandchild, as to his labor or services so rendered in such case, is on the same footing as a son or daughter. And this is so, after the grandchild attains his majority, if the same family relation continues. This rule is founded, in large measure, upon the supposition that the father clothes, feeds, educates and supports the child, and that the latter labors and does appropriate service for the father and his family in return for such fatherly care, and domestic comfort and advantage. The family relation and the nature of the service, rebut the ordinary presumption that arises when labor is done for a party at his request, express or implied, of a promise on his part to pay for it. Applying this rule, this Court held in Hussey v. Rountree, 44 N. C., 111, that though a step-father is not bound to support his step-children, nor they to render him any service, yet if he *321 support them, or they labor for him, in' the absence of an express agreement, they will be deemed to have dealt with each other as parent and child and not as strangers.” The same principle applies to grandfather and grandchild. Hudson v. Lutz, 50 N. C., 217. See Henderson v. McLain, 146 N. C., 329, 59 S. E., 873.

The term “family” is an elastic expression and must necessarily vary with given facts and circumstances, but the description of the relationship given by our Court, supra, implies: (1) those who live in the same household, subject to the general management and control of the head thereof; (2) dependence of the members upon such supervising, controlling and managing head; (3) mutual gratuitous services with no intention on one hand of paying for such services, and no expectation on the other of receiving reward or compensation.

Applying the principle of law to the facts, it appears that M. 0. Crawford had his own car, and that for two years or more he had lived in the home of his grandfather and worked in the grandfather’s store. He borrowed a truck belonging to the defendant for his own purposes and pleasure. The plaintiff offered testimony tending to show that the grandson lived in the home of the grandfather as a member of the family. The testimony of defendant tends to show that the grandson was an employee of his grandfather, and that such employment was based upon contract providing a stipulated sum in money per week, and in addition thereto, board and lodging in the grandfather’s home.

This Court has never extended the family purpose doctrine to mere employees, and certainly the facts in this case do not warrant an expansion of the principle. Eamily membership was essential to liability in the case at bar, and as the evidence upon the point was conflicting, the issue with respect thereto, tendered by the defendant, should be submitted to the jury with proper instructions from the court. See Smith v. Callaghan, 64 A. L. R., 830, and Watson v. Burley, 64 A. L. R., 839, and annotation.

New trial.