*1 THE COURT. IN SUPREME Small acquire ownership of all of its three standing less than individuals permitted be to hold should not stock; corporate creditor and.such dealings no individuals. he has had with whom liable individuals and re- parties does not fade as to third corporate status Surely, reflecting stock of stock by of transfers to time reason vive from time by times less and at other by three individuals ownership at times individuals. than three Realty and Insurance Com- Pope questions arise: If further
These cor- receivership? are why the What corporation, .the pany is not corporate creditors? porate are assets? Who MALLORY. SMALL v. THREADGILL BOYCE E. LOUISE June, 1959.) (Filed 12 1. Automobiles 55—§ liability “family purpose applies to for the doctrine” in this an automobile State. family purpose to 2. Evidence held sufficient doctrine Same— jury. liability driving of husband take issue of wife’s question pur- tending to show 'automobile in Evidence sepa- payment by her from her chased the wife and the initial earnings, rate car was maintained for convenience ,be jury held both submitted to husband wife sufficient question liability under the wife’s husband, negligent operation notwithstanding the car years prior had not worked for some evidence that money for the the ing that the installment financ- refinancing car was furnished the husband. Bobbitt, J., dissenting.
Appeal January 19, Crissman, J., 1959 Civil by defendant Division. Term of Greensboro Guilfoi®— pleadings formal commenced summons Civil -action without Court, Civil Di- issued 8 out of December, Guilford, commanding the sheriff or other lawful officer of vision County summon Edward R. and Louise T. Mal- Guilford M., lory 1958 at o’clock before the appear December, on 16 P. Municipal-County Court, City Civil Division in the Judge -of Boyce E. C., to answer the Small Hall, Greensboro, N. TERM, Malloey. Small *2 non-payment the $451.14 the sum of with interest thereon December,
from 20 due tort and plaintiff,— demanded a brief statement of the being cause of action as follows:
“The represents sum demanded damages the Buick automo- plaintiff bile of the resulting from a collision Redding Street, High on Point, C.,N. between said Buick a and Cadillac automo- automobile operated bile Mallory defendant Edward R. de- owned caused, fendant Mallory, Louise T. being said collision proximately by the negligence of the Mallory defendant Edward R. in operating said Cadillac automobile left wrong of the street.” side
The sheriff returned showing summons on service defendant Louise Mallory— T. not on but Edward.
The record contains 'Certificate return to notice of appeal from Municipal-County Superior County Court to Court of Guilford show- ing proceedings in plain- said Court: “The alleges tiff negligence defendant, of the R. Mallory, result- damages. defendant, Mallory, served; The Louise was T. fail- appear. ed to as Mallory. Plaintiff takes nonsuit to Edward R.
“Judgment: plaintiff have and recover That of the Mallory Fifty-One defendant T. sum of Louise Pour Hundred with indicated; Dollars” interest costs as 14/100 Louise December, 1958, on 16 defendant T. notice of appeal, process, pleadings, papers and the and other in the case are sent. Superior plaintiff testified
Upon trial Court that Edward R. driving (plain- automobile with was the Cadillac which his tiff’s) collided, or wrong on the left Buick side automobile damage of which is producing made. street — witness for testified And Edward R. substan- “ * * * time of this I tially as follows: At the accident lived at 222 years I been Gordy at working Street. This makes three have Ma- I-am Company. defendant, Paint the husband rietta and.Color years. and have married 13 I Mallory, T. been do not have Louise * * * children, daughter one who is any years she had about old. * * * me my home with wife she was She does not live not * * * with accident. was in living me at the of this She -school time At spend and would come home and summer. time automobile, I driving a 1952 which was owned by my years. Yes, -paid money wife I for about on the oar. It — n purchased I cash,- monthly was not pay- financed. * * * car; working. is * * * I ments have she At the time working ain’t she had been she worked none for about three IN THE SUPREME COURT.
n Small v. I bought. ain’t years. time the oar was She I mortgage on the had been nowhere signed no automobile. going over to leaving I home and was occasion of collision. was I going I was not work. Company. the Marietta Paint and Color * * * my Yes, my wife drives. get my money pay check. going I the car to I use too. Sometimes drive uses oar and the car She my got I haven’t license mornings, and sometimes walk. work year. purpose my for about I ain’t had a now. license she was work- anywhere else. go to town or uses the car work she carried me to just I do. Sometimes ing she used the car like us used the This Both of I took her to and sometimes work. dur- when she lived with me my use automobile she had did not ohild *3 * * * working at the time of the My ing the summer years. us were Both of in about She ain’t worked none accident. us bought. both of the time the automobile expenses paying the household working, both contributed we buy when we would certain paid together and we both and bills I paid the taxes wanted. She particularly we things that pay repair bills when her both buys gas. and buy and she gas Me working. she ain’t all now because pay I for working, but she was * * always I use time, have could my this living with wife at I am I was At the time of I wanted to. any time that the ear road, but it was a slick road my right-hand side driving on Yes, during into it. pulled me my just I hit brake My front wrong side of the road. I was of the accident time * * * payments on Yes, of the road on that side I. slid wheels was re- Yes, car money to make her the them. the car. financed.” ownership and use of as to evidence no other
Plaintiff offered automobile. jury the case submitted charge of the court And as indicated: were answered issues which upon neg- damaged a result of plaintiff’s automobile “1. theWas summons? alleged in Mallory, as R. of Edward ligence Yes. Answer: operated automobile the Cadillac R.
2. Was Louise T. Mal- by the defendant kept owned, maintained family, of her use, convenience lory for said Cadillac automobile at Mallory operating Edward R. An- purpose? scope of such within of the collision time Yes. swer: TERM, 573
Small v. damages, What if any, amount is the “3. entitled to recover defendant? $450.00.” Answer: Judgment was entered in accordance therewith, defendant excepted thereto and appeals Supreme therefrom to Court and as- signs error.
Stern & Rendleman appellee. plaintiff, Martin Whitley & defendant, appellant. C. J. question presented The sole for decision on this WiNBORNE, appeal challenges ruling the correctness of the of the trial court overruling defendant’s motion as of nonsuit at plaintiff’s close In is appropriate evidence. connection therewith it to say “family respect doctrine” with to automobiles adopted has been as the jurisdiction, applied law in this in nu- merous among cases— which Aldridge, are these: Robertson v. 185 292, N.C. 742; 116 S.E. Allen 187 123 Garibaldi, 798, v. N.C. S.E. 66; 130 Lefler, 722, 630; Watts v. 190 N.C. Woodside, S.E. Grier v. 200 759, 491; N.C. Lyon 326, 158 v. 205 Lyon, N.C. 171 S.E. S.E. 356; 853, 718; McNabb 207 Murphy, v. N.C. 175 S.E. Matthews v. 592, 210 N.C. 188 217 87; Vaughn Booker, S.E. v. N.C. 479, 603; Ewing 8 564, S.E. 2d 65 2d Thompson, S.E. N.C. 17; Barton, 398; Goode v. 238 N.C. Killian 2d Elliott v. 903; N.C. 471, Thompson Lassiter, 87 S.E. 2d *4 2d 492; Bumgarner R., R. 100 S.E. 2d v. very genesis
This Court Vaughn has said in “The Booker, supra, of question the is the agency, car doctrine here presented governed by agent is and principal the rules of of master and servant.” by in
Moreover, opinion in this Lefler, supra, Court, Watts v. Berry Clarkson, from on J., quotes approval with this statement (4th Ed.) is in Automobiles “The rule followed some Sec. 1280: the who question States in that one decided, which has been the keeps himself an automobile convenience of pleasure for family, injuries is liable for caused or convenience used for the being machine while it is family.” with quotes Moreover, supra, Court Matthews v. Ed.) (9th approval Law Huddy’s Encyclopedia of Automobile sought p. whom it is person upon 7-8 this “The Vol. rule: own, provide, fasten must liability ‘family under car’ doctrine con- general use, pleasure, or maintain an automobile IN THE SUPREME COURT. Mallohy. Small family. Liability this is not venience of confined. depends To like im- upon owner or It and use.” driver. control port are later cited decisions above. light principles applied
In the offered evidence below, light plain- taken in the most favorable to trial tiff, giving every to him the benefit of reasonable inference and! intendment, against- is this Court constrained hold that case jury,, Mallory is submission to the defendant Louise T. made for though might is as it be. even not clear and forceful as appeal from which is taken there is Hence No Error. J., dissenting. The this novel situa- record discloses Bobbitt, Mallory’s negli- R. damaged
tion: Plaintiff’s Buick gent operation Mallory, defendant, as a named the 1952 Cadillac. voluntary nonsuit was served; and, him, judgment was not Judgment was en- entered at trial in the Court. wife. Mallory, Mallory’s T. She against tered in said court Louise Mallory and, superior court, plaintiff offered appealed; at trial to> testimony only evidence relevant Mallory’s as his witness. is liability negligence. his of Louise T. following: His wife owned the testimony Mallory’s includes the paid taxes on the years.” Cadillac “for about She she work- purchased. Both were when the car -stopped, his repair bills. After bought gas paid both ain’t, “She testified: paid by working, all bills He years.” worked none for about three and re- cash; it financed purchased
The Cadillac was are not There transactions The details of these financed. shown. testimony) Mallory, -before (no explicit Mrs. a faint inference payment -on account may some stopped working, she have made all working, stopped purchase price. After she payments. evidence) (none owner- indicate legal documents
Presumably, all signed mortgage no “I ain’t ship appellant. testified: car, “Yes, I made Again: the automobile.” them.” money her the to make plaintiff,, *5 most favorable light in the evidence,
The considered subject to> ownership Mallory's Mrs. suffices show so, the collision oc- when outstanding. Even might such liens as be re- thereto, possession prior years two curredi, for some Under these solely tained account TERM, 1959. Nowell v. Tea Co.
n circumstances, hardly it said Mrs. can be that had final say as to the use and control of the car. Irrespective ownership, that, of technical it as of me seems
n dateof years prior for some thereto, pro- collision and two family vided his and maintained car for own and A realis- use. through financing tic evaluation of the evidence indicates that refinancing making payments, rentals, he was similar to to retain possession circumstances, and use of the car. Under these do Mallory is the “family-purpose not think Mrs. liable under doctrine” Mallory’s or otherwise for negligent operation would liable for his wife’
Whether be matter. In Matthews thereof another (won daughter owned the her in a news- the minor oar contest) kept maintained her father for
paper but it was use; “family-.purpose doctrine,” the father and under negligent operation wife’s of said car. held liable for his invol- appellant’s motion for Hence, my opinion, granted. untary nonsuit should have been wife, SARAH BLANCHE
WILLIAM McKEE NOWELL NOWELL COMPANY, Corporation, TEA & PACIFIC THE GREAT ATLANTIC a INC., Corporation. COMPANY, and P. S. WEST CONSTRUCTION (Filed June, 1959.) 1— of Action
3. Limitation § operate re- are inflexible without of limitation While statutes merits, gard institute action within the time when failure to to the acts, representations or which would conduct been induced limited has good faith, equity deny plea will a breach of the statute render equitable estoppel. principle right the defense to assert Estoppel 4— § estoppel requires equitable one should do that unto good as, equity conscience, would have them do unto he others positions him, reversed. if their 15— of Action § 3. Limitation alleged pais has matters amount- in his Where asserting estoppel bar of of defendant statute an plaintiff again required allege limitations, such is not matters setting up plea of answer reply statute. defendants