#### NETTIE MERRITT GRIER v. JAY L. WOODSIDE and HOWARD WOODSIDE.

(Filed 13 May, 1931.)

1. Parent and Child A a — liability of parent for negligent driving of automobile by minor son is governed by “family car” doctrine.

The father is not ordinarily liable for the torts of his minor son by reason of the relationship, and his liability must be predicated upon some principle of agency or employment, and where the son causes injury while driving his father’s automobile the theory of agency is determined by the “family car” doctrine.

2. Same — Where son uses father’s automobile with consent and approval of fattier the “family car’ ’ doctrine applies.

Where a parent owns an automobile for the convenience and pleasure of his family, a minor child who is a member of the family, though using the car at the time for his own purposes with the parent’s consent and approval, will be regarded as representing the parent in such use, and the parent will be held responsible for the negligence of the son causing injury to another.

3. Same — Consent of father to use of car by son may be implied from circumstances, and in this case it is held a question for the jury.

The consent of the parent to the use of his family automobile by the son for the sole purpose of the latter may be implied from the circumstances, such for example, as the habitual or customary use for his own purposes by the son, and where there is evidence to this effect the testi*760mony of the father that at the time of purchasing the car he told his son not to use it without his consent raises the question of the implied consent of the father as against the father’s motion as of nonsuit.

4. Trial E g — Instruction in this case held not to contain prejudicial error.

An instruction of the trial judge to the jury upon the liability of a father under the “family car" doctrine for his minor son’s negligence in causing an injury to another is not held for prejudicial error in this case because of the use of the words “driven by the son on various occasions,” it being admitted that the son had been driving the car for more than two years, and it thus appearing that the jury must have understood he was referring to his habitually and customarily driving it.

5. Evidence O a- — Where plaintiff makes out prima facie case the burden of going forward with the evidence is properly placed on defendant.

Where in an action against a father for the negligent driving of his automobile by his minor son the court charges the jury that where the plaintiff has introduced evidence that the son habitually and customarily used the car with his father’s consent, that the burden was upon the father to show that on the particular occasion in suit the son was driving without his consent, is not error, the instruction in effect placing the burden of going forward with the evidence on the defendant after the plaintiff, upon whom was the burden of proof, had made out a prima facie ease.

Appeal by defendants from *Harding, J.,*at Spring Term, 1931, of MeckleNbubg.

No error.

The plaintiff brought suit to recover damages for personal injury resulting from the collision of her automobile with one driven by the defendant, Howard Woodside. The defendant, Jay L. Woodside, was the owner of the car and Howard Woodside, 18 years of age, is his son. On 31 May, 1930, at about 6 p.m. the plaintiff was driving her car in an easterly direction on Templeton Avenue in the city of Charlotte, and Howard Woodside was driving his father’s car in a southerly direction on Euclid Avenue. At the intersection of the two avenues a collision of the cars occurred, resulting in injury to plaintiff and damage to her ear. The various acts of alleged negligence are set out in the complaint.

The defendants, admitting that Howard Woodside was a minor and that his father owned the car, denied all the allegations of negligence and pleaded contributory negligence of the plaintiff in bar of her recovery. The following verdict was returned:

1. Was the plaintiff injured and damaged by the negligence of the defendant, Howard Woodside, as allegd in the complaint? Answer: Yes.

2. If so, is the defendant, Jay L. Woodside, responsible for and chargeable with such negligence? Answer: Yes.

*7613. Did tbe plaintiff, bj ber own negligence, contribute to ber injury, and damage as alleged in tbe answer? Answer: No.-

4. What damages, if any, is tbe plaintiff entitled to recover ? Answer: $2,150.

Judgment was rendered for tbe plaintiff and tbe defendants appealed, assigning error.

*J ohn M. Robinson and Hunter M. J ones for plaintiff.*

*G. H. Gover for defendant.*

Adams, J.

There was no error in overruling tbe defendants’ motion for nonsuit. Indeed, tbe negligence of tbe son is not in controversy. Tbe matters in dispute are tbe alleged liability of tbe father and a question of error in tbe charge to tbe jury.

This Court has held that tbe owner of an automobile is not liable in damages for injury resulting from its negligent operation merely because of bis ownership, and that as a rule a father is not liable for the torts of bis minor son. *Brittingham v. Stadiem,*151 N. C., 299; *Linville v. Nissen,*162 N. C., 95; *Taylor v. Stewart,*172 N. C., 203. In such eases liability for tbe son’s negligence will ordinarily be imputed to tbe father only on some principle of agency or employment. *Wilson v. Polk,*175 N. C., 490; *Bilyeu v. Beck,*178 N. C., 481; *Robertson v. Aldridge,*185 N. C., 292. But with respect to tbe use of automobiles this principle must be considered in connection with tbe family-purpose doctrine, which has been adopted as tbe law of this jurisdiction. *Williams v. May,*173 N. C., 78; *Clark v. Sweaney,*176 N. C., 529; *Tyree v. Tudor,*181 N. C., 214; *Allen v. Garibaldi,*187 N. C., 798; *Watts v. Leafler,*190 N. C., 722; *Plott v. Howell,*191 N. C., 832; *Goss v. Williams,*196 N. C., 213. A concise statement of tbe doctrine is set out in *Robertson v. Aldridge, supra:*“Where a parent owns a car for tbe convenience and pleasure of tbe family, a minor child who is a member of tbe family, though using tbe car at tbe time for bis own purposes with tbe parent’s consent and approval, will be regarded as representing tbe parent in such use, and tbe question of liability for negligent injury may be considered and determined in that aspect.”

Under this doctrine tbe question of liability does not depend on the relation of parent and child; tbe question is whether tbe child was using tbe ear for one of tbe purposes for which it was provided. Hence, tbe consent of tbe parent need not be express; it may be implied from circumstances, such, for example, as tbe habitual or customary use of tbe car. *Wallace v. Squires,*186 N. C., 339.

In tbe ease before us there was evidence tending to show that Jay L. Woodside bad owned a Franklin car for more than two years; that the *762son bad driven it during tbis period on an average of once or twice a week witb bis father’s consent; tbat be was living with bis father as a member of the family; and tbat the car was used for family purposes. There was evidence that Jay L. Woodside came home at five in the afternoon and parked the car in the driveway; tbat while he was in his house his son took charge of the car and started to a pressing club for a suit of clothes, and tbat soon afterwards be got information of the collision.

True, the father testified that when he bought the car and perhaps at other times he told his son not to use it without his consent; but the record discloses circumstances from which the jury was fully warranted in finding that the son was using the car at the time of the collision witb the implied consent of his father. The doubt was a matter for the jury, and should not be resolved against the plaintiff as a conclusion of law.

The defendants complain of an instruction relating to the family purpose doctrine in which the court referred to the son’s use of the car on “various occasions” instead of his habitual or customary use of it; but, considering the instruction in view of the admitted fact tbat the son bad been driving the car for twu years, we are of opinion tbat the jury could not have been prejudiced or misled.

An exception was taken to the following instruction: “So> under our law when it is shown -that the son on Amrious occasions has driven an automobile belonging *to his*father, with his knowledge and with his consent, with his permission and with his authority, that is sufficient to carry it to the jury and the burden shifts to the defendant, the father in this case, to explain the relationship and to show he did not have authority on that particular occasion.”

We do not understand tbis instruction in any way to change the burden of the issue. The judge bad previously told the jury that the burden was on the plaintiff to satisfy them by the greater weight of the evidence that at the time of the collision Howard Woodside was acting as agent of his father. The evident meaning of the instruction is that after the introduction of evidence sufficient to carry the case to the jury, it was encumbent upon the defendant to go forward with evidence tending to rebut the prima facie case made by the plaintiff in this respect. The question has been frequently discussed and in view of our decisions, we deem it unnecessary to review the eases in which the point has been presented. *White v. Himes,*182 N. C., 275.

No error.