#### MRS. MATTIE H. HAWES and JOHN ROBERT HAWES v. C. L. HAYNES and Wife, MRS. C. L. HAYNES.

(Filed 7 May, 1941.)

1. Parent and Child § 7—

Parents are not responsible for the torts of their minor son by reason of the relationship, but liability must be predicated upon evidence that the son was in some way acting in a representative capacity, snch as would make the master responsible for the servant’s torts.

2. Automobiles § 23—

Ordinarily, the owner of an automobile is not liable for the negligence of a person to whom ho has loaned the car for such person’s own purposes, unless the lender knew that the borrower was incompetent and that injury might occur.

3. Automobiles § 25—

Admissions that defendants were husband and wife, that their minor son resided with them, and that at the time of injury the son was operating the ear registered in the name of the wife, with the consent and approval of his parents, is insufficient to support the application of the family purpose doctrine, there being no admission that the car was owned and used for the convenience and pleasure of the family, and no evidence or admission that the son had driven the car at any time other than the time of the collision in suit.

*536Appeal by plaintiffs from Grady, Emergency Judge, at December Special Term, 1940, of PeNdeb.

John J. Best and David Sinclair for plaintiffs, appellants.

A. J. Fletcher, F. T. Dupree, Jr., Fhringhaus & Ehringhaus, and Charles Aycoclc Poe for defendants, appellees.

ScheNok, J.

There were separate actions by the plaintiffs against the same defendants which were consolidated for the purpose of trial.

The plaintiffs allege that they were injured by the negligence of the driver of an automobile owned and maintained by the defendants as a “family purpose” car; that the automobile of the plaintiff, Mrs. Mattie II. Hawes, in which she was riding, was being operated by the plaintiff, John Robert Hawes, in a lawful and careful manner on Highway No. 60 about 26 miles west of Wilmington, and was run into by the automobile of the defendants while being operated in an unlawful and negligent manner by the 19-year-old son of the defendants; and that as a proximate result of the collision between the said two automobiles thus caused, the plaintiffs received personal injury and property damage.

When the plaintiffs had introduced their evidence and rested their case, the defendants moved to dismiss the actions and for a judgment as in case of nonsuit, which motion was allowed (C. S., 567), and from judgment predicated upon the ruling, the plaintiffs appealed, assigning errors.

We concur in the ruling of his Honor, the trial judge.

There is no evidence that the driver of the defendant’s automobile was acting as the agent of the defendants, or was in any way operating said automobile in the service of the defendants, there being no evidence which brings the operation of the automobile within the family purpose doctrine.

The plaintiffs apparently relied upon the admissions in the pleadings, although they did not introduce any pleadings in evidence. However, if these admissions be considered on the demurrer to the evidence, there is still an absence of sufficient evidence to carry the case to the jury.

The pertinent portions of the pleadings in the action instituted by Mrs. Mattie H. Hawes are the following excerpts from the complaint and answer: Complaint: “2. That on the dates hereinafter mentioned, the defendants were and are husband and wife, and reside together in Wake County; that they have a minor son, Bill Haynes, of the age of about .... years, who did reside, and now resides with them, as a member of the family. That defendants owned a five-passenger Plymouth automobile, title of which is in the name of Mrs. C. L. Haynes, and defendants owned and provided said car for the convenience and pleasure of the family, and the said Bill Haynes, a minor boy, a member of the family, *537was using tbe ear at tbe time and place hereinafter mentioned for bis own purposes witb tbe consent and approval of tbe defendants.” Answer: “2. It is admitted tbat on tbe date referred to in tbe complaint, tbe defendants were and are busband and wife, and reside together in "Wake County, and they have a son, C. B. Haynes, of tbe age of 18 years, who did reside and now resides witb them, as a member of tbe family. It is further admitted tbat at tbe time referred to in tbe complaint, tbe said C. B. Haynes was operating a Plymouth automobile, belonging to tbe defendant, Mrs. C. L. Haynes, witb tbe consent of tbe said defendant, Mrs. C. L. Haynes. Except as herein admitted, tbe allegations of said paragraph are denied.”

Tbe pertinent portions of tbe pleadings in tbe action instituted by John Bobert Hawes are tbe following excerpts from tbe complaint and answer: Complaint: “2. Tbat on tbe dates hereinafter mentioned, tbe defendants were and are busband and wife, and reside together in Wake County; tbat they have a minor son, Bill Haynes, of tbe age of about 19 years, who did reside and now resides witb them, as a member of tbe family, was using tbe car at tbe time and place hereinafter mentioned for bis own purposes witb tbe consent and approval of tbe defendants.” Answer: “2. Tbat tbe allegations of paragraph two are not denied.”

It will be noted tbat there is no admission tbat tbe automobile of tbe defendants was owned and maintained as a family purpose car at tbe time of tbe collision, but only tbat it was being used by tbe son of tbe defendants for bis own purposes by tbe consent of tbe defendants.

Parents are not responsible for tbe torts of their minor son by reason of the relationship of parent and child, and to make them so it must appear tbat tbe son was in some way acting in a representative capacity, such as would make tbe master responsible for tbe servant’s torts. Linville v. Nissen, 162 N. C., 95, 77 S. E., 1096. When a motor car is used by one to whom it is loaned for bis own purposes, no liability attaches to tbe lender unless, possibly, when tbe lender knew tbat tbe borrower was incompetent, and tbat injury might occur. Reich v. Cone, 180 N. C., 267, 104 S. E., 530, and cases there cited; Grier v. Grier, 192 N. C., 760, 135 S. E., 852. There is no evidence, allegation or admission tbat tbe driver of tbe defendants’ automobile, their son, was an incompetent driver.

There is no evidence or admission in tbe pleadings tbat bring this case within the purview of tbe family purpose doctrine. A concise statement of this doctrine, as applied in this jurisdiction, is set out by Holce, J., in Robertson v. Aldridge, 185 N. C., 292, 116 S. E., 742, as follows: “. . . 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 witb tbe parent’s consent and *538approval, will be regarded as representing the parent in such use, and the question of liability for negligent injury may be considered and determined in that aspect.”

While there may be allegation, there is no admission or evidence that the defendants owned the automobile involved in the collision for the convenience and pleasure of the family. There is no evidence nor admission of any use to which the automobile had ever been put nor of its ever having been driven by the son of the defendants, or by anyone else, at any other time than at the time of the collision in which it is alleged the plaintiffs were injured. The allegations without proof or admission can avail the plaintiifs nothing.

Taking the view of the case that we do, it becomes supererogatory to consider the questions presented in the briefs as to whether there was sufficient evidence of negligence on the part of the driver of defendants’ automobile to carry the ease to the jury, and as to whether upon their own evidence the plaintiffs were guilty of contributory negligence as a matter of law.

The judgment of the Superior Court is

Affirmed.