Williams v. Wachovia Bank & Trust Co.

233 S.E.2d 589 (1977)

292 N.C. 416

Joseph D. WILLIAMS, II, minor by guardian ad litem, Joseph D. Williams v. WACHOVIA BANK & TRUST COMPANY, Executor of the Estate of John Waldrop Williams. Joseph D. WILLIAMS, Individually v. WACHOVIA BANK AND TRUST COMPANY, Executor of the Estate of John Waldrop Williams.

No. 77.

Supreme Court of North Carolina.

April 14, 1977.

*591 James, Hite, Cavendish & Blount by Robert D. Rouse, III, Greenville, for plaintiff.

Gaylord, Singleton & McNally by Louis W. Gaylord, Jr., and Phillip R. Dixon, Greenville, for defendant.

BRANCH, Justice.

The initial question presented in this case is whether the family purpose doctrine is applicable to negligence actions arising from the operation of a motorcycle off the public highways.

*592 The family purpose doctrine imposes liability upon the owner or person with ultimate control of a motor vehicle for its negligent operation by another when it is shown (1) that the operator was a member of his family or household and was living in his home, (2) that the vehicle was owned, provided and maintained for the general use, pleasure and convenience of his family, and (3) that the vehicle was being so used by a member of his family at the time of the accident with his express or implied consent. Lynn v. Clark, 252 N.C. 289, 113 S.E.2d 427; Watts v. Lefler, 190 N.C. 722, 130 S.E. 630. In this State the doctrine is a rule of law adopted by the Court as an extension of the principle of respondeat superior. Grindstaff v. Watts, 254 N.C. 568, 119 S.E.2d 784. Although the family purpose doctrine has been criticized as unduly straining this principle of law, our Court has long considered any shortcomings in legal reasoning to be outweighed by the doctrine's value as an instrument of social policy. In Grindstaff v. Watts, supra, Justice Moore, speaking for the Court, explored the genesis of the doctrine:

The family purpose doctrine "came into being as an instrument of social policy to afford greater protection for the rapidly growing number of motorists in the United States." 38 N.C. Law Review 252-3. Perhaps nothing has had so great an impact on the business and social life of this country during the past half century as the advent and ever increasing use of automobiles and trucks. It was probably inevitable that there should be an alarming number of collisions and accidents resulting in injuries, suffering and economic loss. This possibly justified the search of the courts for some device to impose a greater degree of financial responsibility.. . .

Defendant contends that because David Williams was operating a motorcycle in his neighbor's front yard, and not on the public highway, the family purpose doctrine should not apply. It is argued, and the Court of Appeals agreed, that the family purpose doctrine is "an anomaly in the law" which should be extended only by legislative action. In support of the argument that the doctrine should not be extended to apply to the operation of motorcycles off the public highways, defendant strongly relies upon the following statement from Grindstaff v. Watts, supra: "In the absence of legislative action, this Court is not disposed to extend the family purpose doctrine in North Carolina to instrumentalities other than motor vehicles operating on public highways." [Emphasis added.]

It was held in Grindstaff that the family purpose doctrine did not apply to negligence cases arising out of the operation of motorboats on the waters of this State. This holding, however, was shortly thereafter overruled by the enactment of G.S. 75A-10.1 which specifically makes the doctrine applicable to such cases. Further, we interpret the crucial language in Grindstaff to be descriptive of the nature of the vehicle to which the family purpose doctrine is applicable, and not restrictive of the use in which the vehicle must be engaged at the time of the accident. In other words, Grindstaff only limited the application of the family purpose doctrine to motor vehicles of a type which are commonly used upon the public highways, as opposed to those of a wholly different design, in that case motorboats. With this distinction in mind, we do not think the application of the family purpose doctrine to the facts of instant case runs counter to the rationale of the Grindstaff decision.

Unquestionably a motorcycle is a motor vehicle for purposes of the family purpose doctrine. It is a self-propelled vehicle designed and intended for operation upon the public highways. G.S. 20-4.01(27) includes motorcycles within the definition of "passenger vehicles" so as to make them subject to the motor vehicle registration and driver's licensing laws of G.S. 20-50 and G.S. 20-7. In Meinhardt v. Vaughn, 159 Tenn. 272, 17 S.W.2d 5, the Tennessee Supreme Court indicated that the reasoning which forms the basis for the application of the family purpose doctrine to automobile accidents applies with equal force to accidents involving motorcycles.

*593 We do not believe that the fact that an injury occurs as a result of the operation of a motor vehicle on private property defeats the application of the family purpose doctrine. In many instances, as here, the youth of the operator requires that the operation of the motor vehicle be restricted to private property. The legislature has wisely determined that persons under 16 years of age lack the discretion and maturity to operate motor vehicles safely upon the public highways. This policy determination should heighten a parent's sense of responsibility and increase his duty of oversight when he provides his fourteen-year-old son with a potentially dangerous motor vehicle capable of attaining speeds of 60 miles per hour, knowing that its use will necessarily be limited to private property. Indeed, it is such use which presents the greatest risk of injury to those least capable of protecting themselves. Parents constantly implore their children to play in their yards and thereby avoid the dangers of motor vehicular traffic. Even those of sufficient maturity to better care for their own safety would be justified in being less attentive to the dangers of such traffic when safely situated on their own property. It would surely be "an anomaly in the law" to hold a parent liable for his child's negligent operation of a motor vehicle in an area designated for its proper use, but to insulate the parent from liability when the vehicle is used in an area presenting a greater potential for injury. Children belong in yards; motorcycles do not.

We hold that the family purpose doctrine is applicable to accidents involving the operation of a motorcycle upon private property.

The family purpose doctrine does not relieve plaintiff of his burden to show actionable negligence in order to justify a jury verdict in his favor. We, therefore, must consider defendant's contention that the trial judge erred when he failed to grant its motion for a directed verdict on the ground that there was not sufficient evidence to carry the case to the jury.

Actionable negligence is the failure to exercise that degree of care which a reasonable and prudent man would exercise under similar conditions and which proximately causes injury or damage to another. Toone v. Adams, 262 N.C. 403, 137 S.E.2d 132; Jackson v. Stancil, 253 N.C. 291, 116 S.E.2d 817 and Smith v. Stancil, 253 N.C. 291, 116 S.E.2d 817; Griffin v. Blankenship, 248 N.C. 81, 102 S.E.2d 451. Defendant's motion for a directed verdict raised the question of whether plaintiff's evidence, when considered in the light most favorable to plaintiff, would justify a verdict for the plaintiff. Winters v. Burch, 284 N.C. 205, 200 S.E.2d 55; Rayfield v. Clark, 283 N.C. 362, 196 S.E.2d 197.

The presence of small children on or near a street is a danger signal to a motorist who must bear in mind that children have less capacity to avoid danger than adults and he is, therefore, required to use the care a reasonable man would exercise under such circumstances. Rodgers v. Carter, 266 N.C. 564, 146 S.E.2d 806. This duty of increased vigilance is also required when a vehicle is being operated on private property. McNeill v. Bullock, 249 N.C. 416, 106 S.E.2d 509.

The facts in Sugg v. Baker, 261 N.C. 579, 135 S.E.2d 565, are strikingly similar to those presented in instant case. The evidence in Sugg v. Baker, supra, tended to show that defendant was traveling 15 to 20 miles per hour along a street when his attention became focused upon a man and two youths with a homemade go-cart in a driveway to his left. He did not see plaintiff's intestate, a child less than three years old, who had wandered into the street from behind a hedge along a driveway on defendant's right. There the Court held that this evidence was sufficient to permit an inference that had defendant kept a proper lookout he might have seen the child in time to have stopped or avoided the injury.

Here, when considered in the light most favorable to the plaintiff, the evidence tends to show that John David Williams was operating the motorcycle belonging to his father and furnished to him for his use *594 and pleasure across the front yard of a home in which he knew little children lived and played. He had been told not to operate the vehicle on these premises. He was operating his motorcycle at a speed of about 15 miles an hour along a path which had been created by his motorcycle and the motorcycle of one of his friends. Although his vision was momentarily obstructed by a bush, he failed to decrease his speed before he saw the child and was forced to suddenly apply his brakes. By his own admission, his brakes were of little value under these conditions.

This evidence was sufficient to support a reasonable inference that John David Williams was operating the motorcycle at a greater rate of speed than was reasonable or prudent under the circumstances. Likewise the evidence was sufficient to support a reasonable inference that John David Williams was operating the motorcycle in a negligent manner in that he failed to keep a proper lookout.

We hold that there was ample evidence to repel defendant's motion for a directed verdict.

The decision of the Court of Appeals reversing the judgment of the trial court is

Reversed.