#### KATHERINE BYERS, by Her Next Friend, KATHERINE E. RINK, v. J. W. BRAWLEY.

(Filed 10 October, 1934.)

Automobiles D c — “Family purpose doctrine” does not apply in absence of evidence that car was kept by defendant for use of his family.

The evidence in this action was to the effect that defendant kept a Chandler automobile for the use of his family and a Chrysler automobile for his own personal use, and that in his absence his nephew, who lived with the family, asked defendant’s wife for permission to use the Chrysler for a pleasure trip, and that plaintiff was injured in an accident while riding in the Chrysler as a guest of the nephew: *Held,,*even conceding that the nephew was a member of the family within the meaning of the “family purpose doctrine,” in the absence of evidence that the car in which plaintiff was riding at the time of the accident was kept by defendant for the use of his family, defendant’s motion as of nonsuit should have been allowed.

Schenck, J., took no part in the consideration or decision of this case.

Appeal by defendant from *Sink, J.,*at October Term, 1933, of Ghnx-PORD.

Reversed.

This is an action to recover of the defendant J. *~W.*Brawley damages for personal injuries which the plaintiff suffered while she was riding-in an automobile which was owned by the defendant.

It is alleged in the complaint that the automobile in which the plaintiff was riding at the time she was injured was owned, kept and maintained by the defendant for use by members of his family for their business or pleasure, and that at the time the plaintiff was injured, as alleged in the complaint, she was riding in said automobile as a guest of a member of defendant’s family, who was using the automobile for his pleasure.

It is further alleged in the complaint that the plaintiff was injured by the negligence of the driver of the automobile, who was driving the *152same at tbe direction and under tbe control of tbe member of defendant’s family, wbo was then using tbe automobile for bis pleasure.

In bis answer, tbe defendant admits that be was tbe owner of tbe automobile in wbicb tbe plaintiff was riding when she was injured, and that her injuries were caused by tbe negligence of tbe driver. He denies that be kept and maintained tbe automobile for use by members of bis family, and that tbe person at whose direction and under whose control tbe automobile was being driven when tbe plaintiff was injured was a member of bis family. He expressly denies that tbe driver of tbe automobile was bis agent.

Tbe issues submitted to tbe jury were answered as follows:

“1. Was tbe plaintiff injured by tbe negligence of tbe defendant J. W. Brawley, as alleged in tbe complaint? Answer: ‘Yes.’

“2. What damage, if any, is tbe plaintiff entitled to recover ? Answer: ‘$3,500.’ ”

From judgment that plaintiff recover of tbe defendant J. W. Brawley tbe sum of $3,500, and tbe costs of tbe action, tbe defendant appealed to tbe Supreme Court, assigning as error tbe refusal of tbe court below to allow bis motion for judgment as of nonsuit at tbe close of all tbe evidence.

*Smith, Wharton .& Hudgins and Brooks, McLendon & Holderness for plaintiff.*

*Sapp & Sapp for defendant.*

CoNNOR, J.

At tbe trial of this action all tbe evidence showed that on 31 December, 1931, tbe defendant J. W. Brawley owned two automobiles, one a Chandler sedan and tbe other a Chrysler sedan; that tbe Chandler sedan was kept and maintained by tbe defendant for use by bis wife, for her business or pleasure, and that tbe Chrysler sedan was kept and maintained by tbe defendant for bis own use. Tbe defendant lives in tbe city of Greensboro, N. C., where be maintains a borne for himself and bis wife. They have no children. Tbe defendant is employed by tbe Pilot Life Insurance Company of Greensboro, N. C. On 31 December, 1931, tbe defendant was in Havana, Cuba.

All tbe evidence at tbe trial further showed that on 31 December, 1931, W. R. Lovill, Jr., a nephew of defendant’s wife, was living in defendant’s borne in Greensboro. Tbe mother of W. R. Lovill, Jr., died when be was about 8 years of age, and since her death be has lived in the borne of tbe defendant. On 31 December, 1931, be was about 26 years of age. There was evidence tending to show that both before and after W. R. Lovill, Jr., arrived at tbe age of 21 years tbe relationship *153between bim and tbe defendant and bis wife was that of a son and father and mother, and that such relationship existed on 31 December, 1931.

All the evidence further showed that on the night of 31 December, 1931, in the absence of the defendant from his home in Greensboro, the said *~W.*E. Lovill, Jr., asked his aunt, the wife of the defendant, for permission to use the defendant’s Chrysler sedan to take his friends, the plaintiff and Harry J. Byrd, to Mount Airy, N. C., to visit their friend, Miss Edna Ellis. Mrs. Brawley granted the request, and the said *W.*E. Lovill, Jr., the plaintiff, and Harry J. Byrd left Greensboro at about 7:30 p.m. in the Chrysler sedan. They arrived at Miss Ellis’ home in Mount Airy, N. C., at about 10 o’clock. Some time thereafter the party left Miss Ellis’ home in the Chrysler sedan to go' to a moving-picture show.. At the request of *W.*E. Lovill, Jr., Harry J. Byrd drove the sedan, with the plaintiff sitting by his side on the front seat, and with *~W.*E. Lovill, Jr., and Miss Ellis sitting on the rear seat. By his careless and negligent driving, Harry J. Byrd caused the automobile to swerve to the left side of the highway, to strike a telephone pole, and to turn over. The plaintiff was thereby seriously, painfully, and permanently injured, with the result that she has sustained damages.

There was error in the refusal of the trial court to allow defendant’s motion for judgment as of nonsuit, at the close of all the evidence, unless, as contended by the plaintiff, the “Family Purpose Doctrine” is applicable to this case. This doctrine has been recognized and applied in this jurisdiction. See *Grier v. Woodside,*200 N. C., 759, 158 S. E., 491.

Conceding that there was evidence at the trial of this case tending to show that *W.*R. Lovill, Jr., was a member of defendant’s family (see *McGee v. Crawford,*205 N. C., 318, 171 S. E., 326), in the absence of any evidence tending to show that the automobile in which the plaintiff was riding at the time she was injured by the negligence of the driver was kept and maintained by the defendant for use by members of his family for their business or pleasure, the “Family Purpose Doctrine” is not applicable to this case, for the purpose of imposing liability on the defendant for the damages which the plaintiff sustained as the result of her injuries. *Eaves v. Coxe,*203 N. C., 173, 165 S. E., 345.

There was error in the refusal of the court to allow defendant’s motion for judgment as of nonsuit. For this error the judgment is

Eeversed.

Schenck, J., took no part in the consideration or decision of this case.