Byrne v. Bordeaux

354 S.E.2d 277 (1987)

Mary BYRNE v. Margaret BORDEAUX and Winfred Bordeaux.

No. 8612SC864.

Court of Appeals of North Carolina.

April 7, 1987.

*278 Seavy A. Carroll, Fayetteville, for plaintiff-appellant.

*279 Singleton, Murray & Craven, by Rudolph G. Singleton, Jr., Fayetteville, for defendants-appellees.

WELLS, Judge.

The judgment below not being final as to all claims and all parties, see N.C.Gen.Stat. § 1A-1, Rule 54(b) of the Rules of Civil Procedure, the first question we must determine is whether the trial court's judgment dismissing plaintiff's punitive damage claim against Winfred Bordeaux is immediately appealable. Pursuant to the rule established in Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976), we hold that plaintiff has a substantial right to have all of her claims for relief tried at the same time before the same judge and jury, and therefore allow this appeal.

Plaintiff first contends that the trial court erred in dismissing her claim for punitive damages against defendant Winfred Bordeaux for failure to state a claim upon which relief can be granted. Plaintiff argues that Ms. Bordeaux's wilful and wanton negligence may be imputed to Mr. Bordeaux under the "family purpose doctrine." We disagree.

Under the family purpose doctrine, the owner or person with ultimate control over a vehicle is held liable for the negligent operation of that vehicle by a member of his household. In order to recover under the doctrine, a plaintiff must show that (1) the operator was a member of the family or household of the owner or person with control and was living in such person's home; (2) that the vehicle was owned, provided and maintained for the general use, pleasure and convenience of the family; and (3) that the vehicle was being so used with the express or implied consent of the owner or person in control at the time of the accident. Williams v. Wachovia Bank & Trust Co., 292 N.C. 416, 233 S.E.2d 589 (1977). The family purpose doctrine is an extension of the theory of respondeat superior, whereby the responsible party is the principal and the party actively negligent is the agent. Id; Grindstaff v. Watts, 254 N.C. 568, 119 S.E.2d 784 (1961) and cases cited and discussed therein; see also Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739 (1984).

It is settled in this State that one may recover punitive damages from the driver of a car for his malicious, wilful or wanton negligence in its operation. Hinson v. Dawson, 244 N.C. 23, 92 S.E.2d 393 (1956). McAdams v. Blue, 3 N.C.App. 169, 164 S.E.2d 490 (1968); See also Huff v. Chrismon, 68 N.C.App. 525, 315 S.E.2d 711, cert. denied, 311 N.C. 756, 321 S.E.2d 134 (1984). Whether one may recover punitive damages under the family purpose doctrine from the owner of a car based on the wilful and wanton negligence of the driver has not yet been directly addressed by our courts.

Although the family purpose doctrine has long been established in this State, it is not without its limits. See, e.g., Grindstaff v. Watts, supra. We are unwilling to say that when a driver uses a family member's automobile wilfully, wantonly, or maliciously to injure another that the family purpose doctrine should be applied so as to allow recovery of punitive damages against the owner based on such use.

We therefore hold that the trial court properly dismissed plaintiff's claim for punitive damages against defendant Winfred Bordeaux.

Plaintiff next assigns error to the court's order separating the assault cause of action from the negligence cause of action. N.C.Gen.Stat. § 1A-1, Rule 28(b)(5) of the N.C. Rules of Appellate Procedure states that "the body of the argument shall contain citations of authority upon which the appellant relies." Since plaintiff has failed to cite authority in support of her argument, we deem this assignment of error to be abandoned. See Groves & Sons v. State, 50 N.C.App. 1, 273 S.E.2d 465 (1980), cert. denied, 302 N.C. 396, 279 S.E.2d 353 (1981).

The judgment appealed from is

Affirmed.

EAGLES and GREENE, JJ., concur.