Alexander v. Kendrick

213 S.E.2d 911, 134 Ga. App. 249, 1975 Ga. App. LEXIS 1978

• Court: Court of Appeals of Georgia
• Decided: February 21, 1975
• Docket: 49861
• Status: Published

Opinions

Evans, Judge.

This is a case growing out of a collision between two automobiles, resulting in a suit for damages by Waddell Kendrick, as plaintiff, against Diane Alexander, as driver, and Thomas Alexander, as owner and father of the driver, as defendants. The trial judge sat as judge and jury and rendered a verdict for the plaintiff. Appellant argues, among other things, that there is no evidence to support the trial-court’s finding that Diane Alexander failed to stop at the stop sign, and "there was no showing of negligence on Diane’s part and the Alexanders were entitled to judgment in their favor.”

1. First of all, it must be remembered that a trial judge who sits without a jury is entitled to have his judgment considered as a verdict by a jury, and if there is "any evidence” to support his finding, it should be affirmed. See Munn v. Kelliam, 228 Ga. 395, 397, 398 (185 SE2d 766); Givens v. Gray, 126 Ga. App. 309, 310 (190 SE2d 607). Next, a judgment of a court is presumptively correct, and is presumed to have been supported by each and every ingredient essential to its rendition. See Kiser v. Kiser, 101 Ga. App. 511 (1) (114 SE2d 397); Allen v. Smith, 223 Ga. 265, 266 (154 SE2d 605). In other words, the evidence must be construed most strongly in favor of the prevailing party, and the question to determine is as to whether the judgment, under such construction of the evidence, should be upheld or overturned.

2. While the testimony of both plaintiff and defendant was not as specific as could be desired, there was ample evidence from which the trial judge, sitting as both judge and jury, could have found the plaintiff entitled to a judgment in his favor. The evidence does not show that Diane Alexander failed to stop at the stop sign. The judgment of the trial court did not state that she did not stop, but rather that she "violated the stop sign-ordinance” his judgment being in the following language: "The evidence presented shows clearly that the defendant, Dianne Alexander, violated the stop sign ordinance in failing to yield the right of way to plaintiff...” (Emphasis supplied.) No ordinance was introduced into evidence, but it is quite plain that the trial judge concluded defendant was negligent in not yielding the right of way to plaintiffs vehicle. See Code Ann. § 68-1652 (b). There was ample evidence from which the trial court could have concluded that defendant Diane Alexander did not yield the right of way to plaintiff Kendrick at the intersection.

3. There was testimony from the investigating policeman, Sylvester Hicks, as follows: "The one (car) driven by the young lady was westbound on Oak Street, while the car driven by the gentleman was north bound on Langhom. The lady had evidently stopped for the stop sign, but in pulling away from the stop sign, she pulled into the path of the gentleman driving the Riviera.” (Tr. p. 35) (Emphasis supplied.) Plaintiff Kendrick testified: "I came over the hill here. By this time her car was moving kind of slow, had got in my lane. I had to avoid hitting her car head-on, and I swerved to try to miss her; and when I swerved to try to miss her, that’s when I hit the tail end of her car.” (Tr. p. 12) (Emphasis supplied.) Diane Alexander, defendant, also testified: "If he hadn’t swerved he would have hit me in the middle, would have got me in the door. But by him swerving, that’s what made him hit me in the rear and turn around” (Tr. p. 28). Further: "But half the car was going back down Oak Street, you know, the front part of the car.” (Tr. p. 28) (Emphasis supplied.) (This was a most unusual maneuver). "You know — when I got out there in the middle, okay, he’s coming over the hill, you know, it seemed to me he was coming fast, because I panic, and there I was right there when he came and hit my back-end.” (Tr. p. 29) (Emphasis supplied.)

Further, both before the policeman arrived and after he arrived, defendant Diane Alexander told plaintiff she was going to have his car repaired; and told him where he could take it to have same repaired and her father would pay for the repairs. (Tr. pp. 32-33)

All of the foregoing was sufficient to authorize the trial court to find that the collision was because of the negligence of defendant Diane Alexander; that she pulled away from the stop sign directly into the lane of travel occupied by plaintiff; that she went into a panic while in the middle of the street; that plaintiff swerved in an effort to avoid the collision and thereby struck her in the rear-end, instead of in the middle of her car; and that defendant felt that the collision was her fault by telling plaintiff she would have his car repaired.

One of the best known rules in automobile tort law is that negligence, the solution of what negligence, whose negligence, etc., has caused a collision is left solely to the jury, except in plain and palpable cases. See Hanchey v. Hart, 120 Ga. App. 677, 680 (171 SE2d 918); Wakefield v. A. R. Winter Co., 121 Ga. App. 259 (174 SE2d 178).

4. We are also required to rule on the enumeration of error in which defendant complains of the finding by the trial court that there was "ample evidence to show the defendant, Thomas Alexander, is vicariously liable under the 'Family Purpose Doctrine’ in that he provided an automobile for his daughter’s use, benefit and pleasure. This is so, even though his daughter resided elsewhere than with him.” The sole evidence in this regard was that the mother and father were divorced, that the custody of the daughter was awarded to the mother, and she lived with the mother; but he was the head of household, he owned the car, and bought it especially for the daughter to use for her personal pleasure. The daughter was not self-employed, and was of the age of 20 at the time of the collision.

In. Hubert v. Harpe, 181 Ga. 168 (182 SE 167), it was held that where a father keeps and maintains an automobile to be used for the comfort and pleasure of his family, and permits a non-dependent, self-supporting adult son to reside in his home without charge, and allows this son also to use the car, the family purpose car doctrine applies. The father was under no legal obligation to furnish the daughter the car since the court had granted custody to the mother; but he recognized her as his daughter, testified he was the head of the household, and voluntarily gave her the car to use for her pleasure.

Argued November 5, 1974 Decided February 21, 1975 Rehearing denied March 12, 1975. Isabel Gates Webster, for appellants. Kirby G. Bailey, for appellee.

In Griffin v. Russell, 144 Ga. 275, 279 (87 SE 10), the Supreme Court stated that it is a part of a father’s business to supervise and control the pleasures of his children as well as it is to give them nurture and education.

Appellant cites no case which shows that the family car doctrine does not apply in a case such as is disclosed by the facts here. The divorced father testified he was the head of the family; that he furnished the car for his daughter’s use though she resided with her mother. There is no merit in this enumeration of error.

5. The trial judge, occupying the function of both judge and jury, had evidence before him from which he could have properly rendered the judgment here, and, in fact, it would have been difficult to have rendered any other judgment.

Judgment affirmed.

Deen, P. J., Quillian, Clark, Stolz and Marshall, JJ., concur. Bell, C. J., Pannell, P. J., and Webb, J., dissent.