Dixon v. Phillips

217 S.E.2d 331, 135 Ga. App. 161, 1975 Ga. App. LEXIS 1602

• Court: Court of Appeals of Georgia
• Decided: May 23, 1975
• Docket: 50097
• Status: Published

Opinions

Evans, Judge.

The owner of a family purpose automobile allowed his minor son, a member of his household, to drive the car. The son permitted another to drive, and a collision occurred. The father testified by affidavit on summary judgment that he had expressly forbidden his son to allow any other person to drive the car.

The lower court holds that notwithstanding the son was present in the automobile, retaining control and direction over it, the defendant owner’s motion for summary judgment should have been granted, and plaintiff appeals. Held:

The question here is not what instructions the father gave his son as to the way and manner in which the son operated and managed the vehicle, because the owner could not limit his liability by such private instructions, to which the injured parties were not privy. The test is as to whether the car was being operated in the scope of the owner’s business. The owner had made it his business to furnish a car for the pleasure and convenience of members of his family. The law does not allow a principal to insulate and absolve himself of liability by private instructions to his agent. See Evans v. Caldwell, 52 Ga. App. 475 (2) (184 SE 440). The "family purpose car doctrine” is an extension of the principal-agent relationship, as is held in an earlier Georgia case on the subject, to wit, Griffin v. Russell, 144 Ga. 275 (1), 278 (87 SE 10).

The Griffin case, supra (p. 281), quotes approvingly from Birch v. Abercrombie, 74 Wash. 486 (133 P 1020), which holds: "It seems too plain for cavil that a father, who furnishes a vehicle for the customary conveyance of the members of his family, makes their conveyance by that vehicle his affair, — that is, his business, — and anyone driving the vehicle for that purpose with the consent, express or implied, whether a member of the family or another, is his agent.” (Emphasis supplied.) The Griffin case (p. 281) further quotes approvingly from the case of Kayser v. Van Nest, 125 Minn. 277 (146 NW 1091), wherein the nineteen-year-old daughter of the owner took the family car on a pleasure mission, and permitted a cousin to drive the car, and a collision occurred. It was held that a jury question existed as to whether the principal-agent relationship existed so as to make the owner liable for the injuries.

It has been held in Georgia that the owner of a family purpose automobile is responsible for damages inflicted by the driver, when the owner’s son is present in the automobile at the time and permits another to drive. Cohen v. Whiteman, 75 Ga. App. 286 (43 SE2d 184).

It has also been held that the owner of a family purpose automobile is responsible for damages inflicted by a son who uses the automobile contrary to the express instructions from the father. Battle v. Kilcrease, 54 Ga. App. 808 (6), 810 (189 SE 573).

The general rule of the principal’s liability for the act of the agent is well expressed in Evans v. Caldwell, 52 Ga. App. 475 (2), supra, as follows: "A master is responsible for the tortious acts of his servant, done in his business and within scope of employment, although he does not authorize or know of the particular act, or even if he disapproves or forbids. This is so because the test of the master’s responsibility for the acts of the servant is not whether such act was done in accordance with the instruction of the master to the servant, but whether it was done in the prosecution and in the scope of the master’s business.” (Emphasis supplied.)

In Myrick v. Alexander, 101 Ga. App. 1 (112 SE2d 697), and in Myrick v. Sievers, 104 Ga. App. 95 (1) (121 SE2d 185), the owner of a family car was held liable, even though his son entrusted the driving of the car to a third person. At page 3 of the Alexander case, it is made plain that the son of the owner remained in the car and was receiving benefit from the car, which was within the purpose for which the owner furnished same to his son. A different question arises when no member of the family is present in the car receiving a benefit from its operation; and cases involving such factual situations are readily distinguished.

In Golden v. Medford, 189 Ga. 614 (7 SE2d 236), it is held that where a wife furnishes a car for the pleasure and convenience of her husband, and the husband allows another to drive the car while he remains in it, without knowledge or express consent of the wife, she is liable for damages caused by the improper driving of said third person.

The case of Carter v. Bishop, 209 Ga. 919 (76 SE2d 784), is one wherein a motor common carrier was held not liable for the conduct of one who had been substituted as a driver without its knowledge or consent. Motor common carriers are strictly regulated by the Ga. Public Service Comm, and by statute and rules, and as to hours and conduct of the drivers. Code Ann. § 68-601 et seq. For instance, the driver of a Greyhound Bus could not turn it over to a new driver without the consent of his employer, nor could an engineer on the Georgia Railroad step off the engine and call in a bystander to run the engine, and render the employer liable. These matters are strictly regulated and it would be against public policy to allow the violation of such rules.

The cases of Strickland v. Moore, 113 Ga. App. 209 (1) (147 SE2d 682); Pritchett v. Williams, 115 Ga. App. 8 (153 SE2d 639); and Trust Co. of Ga. v. Howard, 130 Ga. App. 725 (204 SE2d 499), insofar as they conflict with this opinion, and all other cases which conflict therewith, are expressly overruled. The earlier cases, unreversed, which we are bound to follow under the rule of stare decisis, plainly establish that when a family purpose car that is furnished by the owner to members of the family for their convenience and pleasure is used for such purpose, and a member of the family is present in the automobile controlling, or who could supervise control of the operation thereof:

1. An owner of a family purpose car is liable for the acts of members of his family in driving said car.

Argued January 14, 1975 Decided May 23, 1975 Rehearing denied June 18, 1975 Whelchel, B unlap & Gignilliat, George L. Simpson, III, for appellant. McClure, Ramsay & Struble, John A. Bickerson, for appellees.

2. The owner of a family purpose car is liable for the acts of a third person, to whom his child has entrusted the driving of the car.

3. The family purpose doctrine is but an extension of the law of principal and agent.

4. So long as the car is being operated for the pleasure of some member of the owner’s family — even though a third person is driving, the owner is liable.

5. An owner (master) cannot insulate himself from liability by the mere giving of private instructions to his children, such as forbidding them to allow third persons to drive the car, and as to which private instructions the injured party is not privy.

6. The test to be observed is whether or not the car was at the time being operated in the owner’s business — in the business for which he furnished the car — to wit, the furnishing of pleasure to members of his family; and if so, the owner is liable.

For the foregoing reasons the lower court erred in granting the defendant father’s motion for summary judgment.

Judgment reversed.

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