Plaintiff alleged facts sufficient, if proved, to support a verdict against the owner-defendant, who in this case was father of the driver-defendant, on two theories: First, under the “family purpose doctrine,” and second, on the theоry of negligent entrustment.
*88
North' Carolina recognizes both.
Grindstaff v. Watts,
In the present case, the order appealed from strikes from plaintiff’s complaint аll allegations on which plaintiff seeks recovery of compensatory and punitive damages from the owner-defendant under the negligent entrustment theory. The defendants-appellees, seeking to sustain the order, cоntend that their stipulation that any negligence of the driver-defendant is imputable as a matter of law to the owner-defendant under the family purpose doctrine has rendered all allegations in the complaint as to nеgligent entrustment irrelevant and prejudicial, citing
Heath v. Kirkman,
“. . . This principle is applicable only when the plaintiff undertakes to cast liability on an owner not otherwise respоnsible for the conduct of the driver of the vehicle. But evidence of reputation for negligence or of acts of negligence on prior unrelated occasions is not competent to show that the driver was negligent on the occasion of plaintiff’s injury. . . .”
*89 The opinion approved the ruling striking out the allegations relative to the driver’s nickname, but also expressly approved the retention in the complaint of subparagraрh (d) of paragraph XII, which contained the allegations relative to negligent entrustment. Charting the further course of the litigation, the opinion then contains the following:
“The allegations of the complaint are explicit to the effect that Atkins on the occasion of plaintiff’s injury was acting within the scope of his employment by his codefendants and in furtherance of their business. Of course, we cannot assume that such allegations of agency will be admitted when answers are filed. If admitted, the liability of the defendant employers would rest upon respondeat superior; and subparagraph (d) of paragraph XII would become irrelevant and prejudicial and should be stricken upon motion then made. On the other hand, if the allegations invoking respondeat superior arе denied, the plaintiff should be allowed to amend his complaint so as to allege additional ultimate facts, such as indicated above, in conformity with the theory of liability set forth in subparagraph (d) of paragraph XII.”
Thus, the opinion expressly approves the retention in the complaint of allegations which would impose liability on an owner-defendant on both the theory of respondeat superior and on the negligent entrustment theory at the same time. The opiniоn indicates that if in the further course of that particular litigation the allegations of agency should be admitted by the defendants, then the allegations as to negligent entrustment would become irrelevant and prejudicial in that case and shоuld be stricken upon motion then made. We understand the reasoning of the opinion to be that if responsibility of the owner-defendants for any negligence of their driver should be judicially established by an admission of agency, it would then be unnecessary for plaintiff to prove the owners also liable under the negligent entrustment theory. Therefore, allegations as to negligent entrustment would be rendered irrelevant by the admission of agency. At the same time thesе allegations would be prejudicial to defendants, since, while evidence of the driver’s reputation for negligence or of his acts of negligence on prior unrelated occasions would not be competent to prove his negligence on the occasion of the plaintiff’s injury, such evidence would be competent if the negligent en-trustment theory was allowed to remain in the case, to show that the owners knew, or in the exerсise of due care should have known, of the driver’s reckless propensities. Implicit in the reasoning of the *90 opinion in the Heath case is the thought that if the defendants’ admissions of agency rendered the allegation in the complaint as to nеgligent entrustment no longer necessary to serve some proper purpose of the plaintiff, then such allegations should be stricken in order to avoid possible prejudice to the defendants.
In the case presеntly before us, however, the allegations as to negligent entrustment have not been rendered immaterial by reason of the defendants’ stipulation judicially establishing the owner-defendant’s responsibility under the family purpose doсtrine. In the present case the plaintiff has alleged that the owner-defendant knew or ought to have known that his son was driving his automobile in the area of the school in a careless, reckless, negligent and unlawful manner and in a manner likely to endanger the safety of children in and about said school, and that in spite of said knowledge the owner-defendant “knowingly, willfully, and wantonly,” continued to permit his son to operate his automobile upon the public streets in and around said school without restriction and even altered the engine so as to increase the speed of the automobile. Thus, the plaintiff has not only alleged liability of the owner-defendant for compеnsatory damages on the negligent entrustment theory, but has further alleged facts which, if proved, would justify an award of punitive damages against the owner for his own wanton negligence. By admitting applicability of the family purpose dоctrine, defendants have certainly not admitted any willfulness or wantonness on the part of the owner-defendant in continuing to entrust the veT hide to his minor son. Therefore, the defendants’ stipulation did not render immaterial the plaintiff’s аllegations as to negligent entrustment. In Heath v. Kirkman, supra, while plaintiff had prayed for punitive as well as compensatory damages, the opinion expressly stated that “[t]he appeal does not present the question as to the sufficiency of the allegations to warrant submission of an issue of punitive damages,” and that question was, therefore, not before the court in that case.
Two years after the decision in
Heath v. Kirkman, supra,
the North Carolina Supreme Court for the first time dealt directly with the question whether the doctrine of punitive damages applied to an automobile collision case. In
Hinson v. Dawson,
Hinson v. Dawson, supra, as does the case before us, presented a case in which plaintiff sued to recover for injuries to his intestate allegedly caused by the negligence of the driver-defendant, who was the son of the owner-defendant. Examination of the record on appeal reveals that in the complaint as originally filed рlaintiff had alleged liability of the owner-defendant under the family purpose doctrine and sought to recover only compensatory damages. The defendants filed answer, admitting plaintiff’s allegations under the family purposе doctrine. After a first trial and appeal to the Supreme Court, a partial new trial was ordered. Plaintiff then obtained permission to file an amended complaint. In his amended complaint the plaintiff repeatеd his allegations under the family purpose doctrine, and for the first time added allegations as to negligence of the owner-defendant in entrusting the automobile to his son and for the first time prayed recovery of punitive, as well as compensatory, damages. The trial court refused to allow the defendants’ motion to strike the allegations and prayer relative to punitive damages as contained in the amended complaint. On appeal, the Supreme Court affirmed this ruling, pointing particularly to the allegations as to negligent entrustment. The result was that allegations as to negligent entrustment and punitive damages remained in the complaint even though defendants’ admission of family purpose had judicially established liability of the owner-defendant for any negligence of the driver-defendant. We consider Hinson v. Dawson, supra, controlling in the case now before us, and hold that the trial court committed errоr in striking paragraphs 8 and 10, in striking the words “joint and concurring” from paragraph 11, and in rewriting paragraph 13 and the prayer for relief.
The trial court’s order amending and rewriting paragraph 13 and the prayer for relief had the effect of eliminating allegations and prayer for recovery of punitive damages against the owner-defendant and also of striking out the allegations to the effect that conduct of both defendants constitutes one of the causes of action whereby a defendant may be arrested under the statutes of North Carolina. While it is appropriate for a plaintiff to allege in his complaint facts upon which the remedy of arrest may bе sustained,
Long v. Love,
The order appealed from is
Reversed.