{ "id": 8620326, "name": "MRS. HARVEY JAMES v. EMORY JAMES", "name_abbreviation": "James v. James", "decision_date": "1946-05-22", "docket_number": "", "first_page": "399", "last_page": "403", "citations": [ { "type": "official", "cite": "226 N.C. 399" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "56 S. E., 855", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "144 N. C., 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659322 ], "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/nc/144/0184-01" ] }, { "cite": "83 S. E., 176", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "167 N. C., 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271744 ], "opinion_index": 0, "case_paths": [ "/nc/167/0122-01" ] }, { "cite": "108 S. E., 381", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "182 N. C., 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655325 ], "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/nc/182/0087-01" ] }, { "cite": "129 S. E., 417", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N. C., 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597495 ], "opinion_index": 0, "case_paths": [ "/nc/190/0177-01" ] }, { "cite": "69 S. E., 131", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "153 N. C., 267", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272176 ], "opinion_index": 0, "case_paths": [ "/nc/153/0267-01" ] }, { "cite": "88 S. E., 507", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "171 N. C., 376", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270448 ], "opinion_index": 0, "case_paths": [ "/nc/171/0376-01" ] }, { "cite": "167 S. E., 575", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "204 N. C., 136", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612810 ], "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc/204/0136-01" ] } ], "analysis": { "cardinality": 541, "char_count": 9860, "ocr_confidence": 0.464, "pagerank": { "raw": 6.584365455536441e-08, "percentile": 0.4029734938214545 }, "sha256": "02f692bc2ff5de98c8be1f806b8bbabd4a30f72018be993e4d64f0b847fcf4fc", "simhash": "1:d382a5507ac24ee7", "word_count": 1781 }, "last_updated": "2023-07-14T21:52:42.041183+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MRS. HARVEY JAMES v. EMORY JAMES." ], "opinions": [ { "text": "Seawell, J.\nThis is an action in replevin to recover a Ford automobile alleged to be the property of plaintiff and to be wrongfully detained by defendant. Claim and delivery proceedings were issued, and defendant gave bond and retained possession of the property. The trial resulted in a jury verdict unfavorable to the defendant, and he appealed from the judgment awarding the car to plaintiff.\nIn her original complaint, the plaintiff claimed ownership by virtue of an allotment of the automobile to her in her year\u2019s allowance as widow of her husband. Over objection by defendant, she was permitted to strengthen her claim by alleging title by gift inter vivos. The amendment does not change the nature of the action, but merely affects the source of title. It was within the discretion of the court, and the objection is without merit.\nThe plaintiff is the widow of Harvey James, a young soldier who died in Italy during the Allied invasion. He was a son of the defendant. The plaintiff was under twenty-one years of age when this action began, but reached her majority during its pendency. She and young James had been going together for several years, and were married in 1943, after his induction into the Service and while he was home on a furlough. Harvey was soon thereafter called overseas. The automobile was purchased prior to the marriage and while Harvey was a minor, about eighteen years of age, living with his father, but employed elsewhere. He was using an old Chevrolet car to drive to and from the mills where he was employed. The evidence for the plaintiff tends to show that the purchase of the Ford automobile was made by Harvey James with the knowledge and permission of his father.\nThe dealer from whom the car was purchased testified that the transaction was with Harvey, who bought the car, but the papers were put in the name of the father and title registered in his name at the dealer\u2019s suggestion because the young man was under age. The difference between the amount allowed for the Chevrolet (which was $35.00 according to the father\u2019s statement) and the total price of the Ford was paid in cash. H. \"W. Graver, from whom the money was borrowed, said that he loaned Harvey the money to pay for the car, which was around $200.00, and this Harvey subsequently paid back to him in thirty-one weekly installments. He testified that the installments were all paid by Harvey, and none of them by the defendant, and defendant did not claim the ear. He delivered all tbe papers to Harvey upon the payment of the last installment.\nThere was further evidence to the effect that after the marriage, Harvey and his wife stayed one while at his father\u2019s and sometime at the home of his father-in-law; that the car was stored in a shed at Emory James\u2019 place because there was no place for it at the home of the father-in-law \u2014 that it was blocked up there and covered with a canvas.\nThere was also evidence that the son sent money from Europe to his father to have repairs made on the car, or have it \u201cfixed up.\u201d Several witnesses testified that the defendant on several occasions had stated that the car was Harvey\u2019s.\nA number of letters written by Harvey James and received by his wife here before her husband was killed were introduced in evidence as indicating that Harvey intended a gift of the car to his wife. Some of them are as follows:\n(November 1, 1943)\n\u201cDearest Darling:\n\"Well, darling, I guess my Ford is still covered up for me when I get back home to use it.\u201d\nSigned: . \u201cLove, Harvey.\u201d (December 19, 1943)\n\u201cMy darling wife and baby:\nI said hello and be good darling I will send you some money soon and you can spend it or keep it, and now I am going to send my daddy some too for fixing my Ford for me.\u201d\nSigned: \u201cLove, Harvey.\u201d\n(May 4, 1944)\n\u201cDearest Darling:\nI was glad to hear from you darling. You said every time you saw my Ford I am bound to be there. Well, I wish I was and hope to see you soon. . . . Darling, you said you were going to learn to drive and get my Ford. Well, I wish you would learn to drive, when I was home. But you see my Ford is your Ford, for I give it to you and I am going to have it put in your name as soon as I can.\u201d\nSigned: \u201cWith love, love forever, Harvey.\u201d\nThe defendant testified that at the time of the purchase Harvey James was a minor. He worked at the cotton mill and at home, and defendant boarded and clothed him. Witness testified that he traded cars with Essick \u2014 a 1928 Chevrolet for a 1935 Ford \u2014 and agreed to pay $300.00 \u201cexcept with the car for said 1935 Ford.\u201d Title to the car was in witness\u2019 name, and the son did not own any part of it. Witness said his son paid part on the car, but counting the 1928 car, witness paid around half of it. The trade, defendant stated, was made by him and the papers delivered to him by Graver when the ear was paid for.\nThe conditional sales agreement was put in evidence, signed by Emory James, and showing a note for $200.52, balance on purchase price of $225.00.\nWitness stated that he had two other cars beside the Ford, the title to which Ford was delivered to him by Graver.\nWitness denied that his son had sent him any money. Said he had sent wife of witness some. He stated Essick did not mention Harvey being under age, that he traded in his own behalf. Said he had repaired the car at his own expense, costing around $140.00.\nBaxter Weaver, brother-in-law of defendant, testified the trade was made with Emory James.\nThe defendant at apt times demurred to the evidence and moved for judgment as of nonsuit. The motions were properly overruled.\nIn addition to other objections, not now necessary to discuss, the defendant argues that during the period covered by the installments alleged to have been paid by his son, the latter was a minor and that defendant was by law entitled to his earnings. If that principle can be extended to property purchased by the earnings of the son under the circumstances here outlined, the fact that the father, with the full knowledge of the facts and acquiescence therein, permitted the expenditure and purchase, if the evidence should so disclose upon a second trial, may, with other pertinent evidence, be taken into consideration upon the question of emancipation. Jolley v. Telegraph Co., 204 N. C., 136, 138, 167 S. E., 575; Holland v. Hartley, 171 N. C., 376, 88 S. E., 507; Lowrie v. Oxendine, 153 N. C., 267, 69 S. E., 131; 46 C. J., p. 1341, et seq.; 39 Am. Jur., Parent and Child, see. 64. The objection is not conclusive here.\nHowever, referring to a portion of the plaintiff\u2019s evidence, respecting the gift inter vivos from Harvey to plaintiff, the judge charged the jury that if they were satisfied by the greater weight of the evidence of the truth of it, they should find in favor of the plaintiff or answer the first issue as to ownership \u201cYes.\u201d\nThis inadvertently ignores the fact that the title to the ownership of the car in Harvey was still at issue, and may be taken as assuming the fact that it was sufficiently proved or as expressing an opinion on the weight and sufficiency of the evidence. G. S., 1-180. S. v. Kline, 190 N. C., 177, 129 S. E., 417; Morris v. Kramer Bros. Co., 182 N. C., 87, 90, 108 S. E., 381; Speed v. Perry, 167 N. C., 122, 83 S. E., 176; Withers v. Lane, 144 N. C., 184, 187, 56 S. E., 855.\nSince tbe standard we are required to apply does not yield to occasion, tbe case must stand for a rebearing. Tbe defendant is entitled to a new trial. It is so ordered.\nNew trial.", "type": "majority", "author": "Seawell, J." } ], "attorneys": [ "Don A. Walser and Charles W. Mauze for defendant, appellant.", "Phillips & Bower for plaintiff, appellee." ], "corrections": "", "head_matter": "MRS. HARVEY JAMES v. EMORY JAMES.\n(Filed 22 May, 1946.)\n1. Pleadings \u00a7 22\u2014\nIn claim and delivery instituted by a widow on the ground of ownership of the property in suit by allotment to her in her year\u2019s allowance, an amendment permitting her to allege title by gift inter vinos from her husband does not change the nature of the action but merely affects the source of title, and the court has the discretionary power to permit such amendment.\n2. Oaim and Delivery \u00a7 14: Gifts \u00a7 1\u2014\nThis action was instituted in replevin by a widow to recover possession of an automobile from her father-in-law. Plaintiff\u2019s evidence that the car had been purchased by her husband and that he had made a valid gift inter vinos of the car to her is held sufficient to overrule defendant\u2019s motions to nonsuit.\n3. Parent and Child \u00a7 4c\u2014\nWhere a minor son purchases a car with his own earnings, the fact that his father had full knowledge of the transaction and acquiesced therein, with other pertinent .evidence, may be considered upon the question of emancipation in derogation of the father\u2019s claim to the car on the ground that he was entitled to the son\u2019s earnings during minority.\n4. Claim and Delivery \u00a7 14: Trial \u00a7 31 \u2014 Charge held for error as expression. of opinion on weight and sufficiency of evidence.\nThis action in replevin was instituted by a widow to obtain possession of an automobile from her father-in-law. There was conflicting evidence as to whether the car had been purchased by defendant or plaintiff\u2019s husband. Plaintiff introduced letters from her husband disclosing that he regarded the car as his and intended making a gift inter vinos of it to her. After charging upon the evidence of title, the court, in charging upon the evidence of gift instructed the jury to answer the issue in plaintiff\u2019s favor if they were satisfied by the greater weight of the evidence of the elements of a gift inter vivos. Held: The court inadvertently overlooked the fact that title was still in issue, and the instruction must be held for error as an expression as to the weight and sufficiency of the evidence on the question of title. G. S., 1-180.\nAppeal by defendant from Olive, Special Judge, at October Civil Term, 1945, of DavidsoN.\n(Pertinent facts are stated in the opinion.)\nDon A. Walser and Charles W. Mauze for defendant, appellant.\nPhillips & Bower for plaintiff, appellee." }, "file_name": "0399-01", "first_page_order": 447, "last_page_order": 451 }