White v. . McCabe
180 S.E. 704
N.C.
1935
Check Treatment
Stacy, C. J.,

after stating the case: It may be conceded that the question of liability insurance was brought to the attention of the jury in excess of any manner heretofore approved by our decisions. Fulcher v. Lumber Co., 191 N. C., 408, 132 S. E., 9. The limitation upon such references is clearly marked in this jurisdiction. Bryant v. Furniture Co., 186 N. C., 441, 119 S. E., 823. Nevertheless, in the instant case, it is conceded that the evidence offered by the plaintiff, on the issue of damages, is sufficient to justify the award, and that the amount is not excessive. In the face of this concession and the evidence of negligence against the driver of the car, it would seem that the defendant administrator is in no position to complain at the rulings in respect to such information being given to the jury. Annotation, 56 A. L. R., 1418.

The foundation for the application of a new trial is the allegation of injustice arising from error, except for which a different result would likely have ensued, and the motion is for relief upon this ground. Unless, therefore, some wrong has been suffered, there is nothing to relieve against. The injury must be positive and tangible and not merely theoretical. To be reversible it must appear that the error was material and prejudicial to appellant’s rights. S. v. Beal, 199 N. C., 218, 154 S. E., 604.

With the negligence of J. T. McCabe clearly established and the non-excessiveness of the damages admitted, the references to liability insurance would seem to be without material significance or bearing on the case so far as the administrator’s appeal is concerned. Allen v. Garibaldi, 187 N. C., 798, 123 S. E., 66. And in view of the subsequent disposition to be made of the feme defendant’s appeal, further consideration of these exceptions may be pretermitted.

There was no error in refusing to instruct the jury, as requested by defendant, that plaintiff could not recover except for gross or wanton negligence on the part of J. T. McCabe. Such is the law of Virginia (Wise v. Hollowell, 205 N. C., 286, 171 S. E., 82), but the collision occurred in this State, and it has been held with us that a guest riding in an automobile may recover of his host for actionable negligence, or want of ordinary care, which proximately produces the injury. Norfleet v. Hull, 204 N. C., 573, 169 S. E., 143; King v. Pope, 202 N. C., 554, 163 S. E., 447. See, also, S. v. Cope, 204 N. C., 28, 167 S. E., 456. *305 The injury having occurred here, the case is governed by the law of this State. Wise v. Hollowell, supra.

There was error, however, in the instruction that the negligence of J. T. McCabe is imputable to Margaret McCabe as a matter of law. This exception must be sustained. “The owner of an automobile is not liable for personal injuries caused by it merely because of his ownership.” Lin ville v. Nissen, 162 N. C., 95, 77 S. E., 1096. Nor would she be liable as a matter of law under the family-purpose doctrine. McGee v. Crawford, 205 N. C., 318, 171 S. E., 326; Allen v. Garibaldi, supra.

It follows, therefore, that the judgment must be affirmed as against the administrator of the estate of J. T. McCabe and reversed as to the feme defendant.

On administrator’s appeal,

No error.

On Margaret McCabe’s appeal,

New trial.

BeogdeN, J., dissents on grounds stated in Norfleet v. Hall, 204 N. C., 573.