Evans v. Caldwell

184 S.E. 440, 52 Ga. App. 475, 1936 Ga. App. LEXIS 160
CourtCourt of Appeals of Georgia
DecidedJanuary 31, 1936
Docket24606
StatusPublished
Cited by39 cases

This text of 184 S.E. 440 (Evans v. Caldwell) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evans v. Caldwell, 184 S.E. 440, 52 Ga. App. 475, 1936 Ga. App. LEXIS 160 (Ga. Ct. App. 1936).

Opinions

MacIntyre, J.

This action was brought by a father against a mother and minor son, who lived at home with her. The plaintiff alleged that his son, then about 18 years of age, was injured by the gross negligence of the minor defendant in operating an automobile furnished by his mother to be used about the family business, pleasure, and convenience, and which was being used by him for such purposes, with the knowlege and consent of the mother, at the time the plaintiff’s son was injured. The plaintiff claimed damages for diminution of his son’s earning capacity during minority, and for medical expenses incurred as the result of the injury. The defendants demurred and to the overruling of the demurrer they excepted pendente lite. They filed answers denying liability. The trial resulted in a verdict for the plaintiff for $2000. The defendants’ motion for new trial was overruled, and they excepted, assigning error also on the ruling excepted to pendente lite.

1. That the petition set up a cause of action against the minor defendant for gross negligence was adjudicated in the action brought by the plaintiff’s son against the same defendant. The judgments overruling the demurrer to the petition and denying a new trial in that case were affirmed by this court. Evans v. Caldwell, 45 Ga. App. 193 (163 S. E. 920). It was 'held that the evidence supported a verdict in favor of the plaintiff, and that such evidence did not show that the plaintiff was injured because of his failure to exercise due care for his own safety in continuing to ride in the automobile driven by the defendant, after discovering that the defendant miglrt be drinking intoxicating liquor and was operating the ear at an unlawful rate of speed.

In the instant case Mrs. Evans, mother of W. R. Evans, (who was a member of the family and residing therewith, and who was operating the car at the time of the wreck) testified: “I own the automobile that was in the wreck. I maintain that automobile for the pleasure and comfort of the family. . . He left home with it with my knowledge and consent. . . I let him have the car on that evening in order that he might go to the picture-show, with the understanding that he would come home immediately.” The testimony further showed that the son, after the picture-show, started to a nearby community to a dance, and on the way the ear was wrecked. The judge charged the jury as follows: “I charge you that under the evidence in this case, in [477]*477so far as it is without material contradiction, it appears that the automobile in question was purchased by the defendant, Mrs. Eugene Evans, for the comfort, pleasure, and convenience of herself and her family, and that the codefendant, W. E. Evans, was a member of that family, and that upon the occasion under investigation he had secured possession of the automobile from his mother and codefendant for the carrying out of one of the purposes for which the automobile had been purchased by her; and although he might not have returned the automobile at the time he bad promised to do, I charge you that, as a matter of law, the evidence shows without material contradiction that he was, at the time of the occurrence of the alleged damage to the plaintiff’s son, Mack Caldwell, operating the car as agent of the codefendant, Mrs. Eugene Evans, and the defendant, Mrs. Eugene Evans, would be liable in this case if the defendant, W. E. Evans, is liable.”

2. The so-called “family-purpose doctrine,” relative to an automobile furnished for the comfort and pleasure (“business”) of the family, prevails in this State. '“While the wife was not obliged to furnish the use of an automobile to the children or her family from her separate property, yet having voluntarily done so, and having permitted its use as a part of her parental duties, she was liable where the injury occurred by reason of the operation of such automobile by a member of the family in a negligent manner, where such use was for the family pleasure and comfort.” Ficklen v. Heichelheim, 49 Ga. App. 777 (176 S. E. 540). A mother, the owner, is liable for the minor son’s negligent operation of an automobile maintained for the comfort and pleasure of the family, where the minor son resided with the family and drove the automobile for his own pleasure with the expressed or implied permission of the mother. Hubert v. Harpe, 181 Ga. 168 (182 S. E. 167). “To make the owner of an automobile liable for his driver’s negligence, it must be established that the latter was acting within the scope of his employment. In other words, the owner of a motor vehicle is liable for the acts of his chauffeur when the latter is acting within the scope of his master’s business. Conversely, the owner is not liable for the conduct of the servant when the latter is not acting within the scope of his employment. While it is, of course, true that the master rarely commands the servant to be negligent, or employs him with the expectation that [478]*478he will commit a negligent or wilful tort, if the acts under consideration are done in the prosecution of the master’s business, liability will ordinarily attach to the master. But if the tort of the servant is entirely disconnected from the service or business of the master, the latter is not responsible, although it may occur during the general term of the servant’s employment. However, so long as the servant is acting within the scope of his employment, the owner is liable, though the negligent act was not necessary to the performance of his duties, or though it was not expressly authorized or known to the employer, or was contrary to his instructions. It is not enough, in order to establish liability, to show that the master has an interest in what is being done. It must also be made to appear that the servant whose act is in question has authority from the master to perform the class of service to which the act belongs. If the act is within the class, the master is bound, although the servant is forbidden to perform the particular act. If not within the class, the master is not bound.” 7-8 Huddy’s Cyclopedia of Automobile Law (9th ed.), 333, § 91.

In Philadelphia & Reading R. Co. v. Derby, 55 U. S. 468 (14 L. ed. 391), it was said: '“The fact that the engineer having control of the colliding locomotive was forbidden to run on that track at that time, and had acted in disobedience of such orders, was no defense to the action. A master is liable for the tortious acts of his servant when done in the course of his employment, although they may be done in disobedience of the master’s orders. . . The rule of ‘respondeat superior,’ or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent, or deceitful. If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize, or even know of the servant’s act or-neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant’s employment. See Story on Agency, § 453; Smith on Master and Servant, 153. There may be found, in some of the numerous cases reported on this subject, dicta which, when severed from the context, might seem to countenance the doctrine that the master is not liable if the act of his servant was in disobedience of his orders. But a more careful examination will show that they de[479]

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Bluebook (online)
184 S.E. 440, 52 Ga. App. 475, 1936 Ga. App. LEXIS 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-caldwell-gactapp-1936.