Ferguson v. Gurley

127 S.E.2d 462, 218 Ga. 276, 1962 Ga. LEXIS 480
CourtSupreme Court of Georgia
DecidedSeptember 6, 1962
Docket21664
StatusPublished
Cited by17 cases

This text of 127 S.E.2d 462 (Ferguson v. Gurley) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferguson v. Gurley, 127 S.E.2d 462, 218 Ga. 276, 1962 Ga. LEXIS 480 (Ga. 1962).

Opinions

Grice, Justice.

Whether the defendant’s wife was guilty of negligence proximately causing the plaintiff’s injuries and, if so, whether the defendant is liable under the family purpose doctrine for those injuries, are the two issues involved here.

Those issues arose in a suit by Kenneth Gurley against J. R. Ferguson, in the City Court of Polk County, for injuries sustained while riding in an automobile driven by Ferguson’s wife. They are before us on grant of application for certiorari to the Court of Appeals.

The defendant filed general and special demurrers to the petition, all of which were overruled. Upon the trial, the evidence was that the plaintiff, with others, rode back and forth with Mrs. Ferguson from Rockmart to their employment in Marietta each day, paying her $5.00 per week for that privilege. They were returning home from work when the collision in which the plaintiff was injured occurred. According to the testimony, Mrs. Ferguson was driving about 45 or 50 miles an hour and [277]*277was following approximately 200 to 250 feet behind another automobile when an automobile appeared ahead, coming around a curve on the wrong side of the road, in Mrs. Ferguson’s lane of traffic, at an excessive rate of speed. That automobile sideswiped the one ahead of the Ferguson vehicle and then collided with the Ferguson one, injuring the plaintiff. The evidence was that the oncoming vehicle was some 900 feet away when first observed by occupants of the Ferguson automobile, that those occupants warned Mrs. Ferguson she would have to get off the road or be hit, that she either did not turn the steering wheel until the last minute or did not get off the road at all, and that the shoulder of the highway where the collision took place was broad and level.

The evidence was contradictory as to ownership of the Ferguson automobile. The defendant testified that it belonged to his wife, but the evidence showed that title was in the defendant, that the registration certificate recited him as owner, that the financing evidenced his obligation, that his life was insured for payment of the obligation, and that repairs were charged to him. His explanation of the above facts was that “I simply put it in my name for convenience.”

As to the purpose and use of the car, the defendant stated that he owned a truck which he used in his business and this automobile was used principally by his wife, that “I gave it to her as a gift to use, to do whatever she wanted to, but I did on occasion drive it,” and that his wife, was usually with him on the occasions when he used the automobile. He also told of a recent family trip in the vehicle. His statement was that “I had no interest of any kind in her salary or wages or any money that was paid for the trip or in connection with this Lockheed work or hauling these people back and forth.”

The jury returned a verdict for the plaintiff, and the defendant’s motions for judgment notwithstanding the verdict and for new trial were denied. The Court of Appeals affirmed. Ferguson v. Gurley, 105 Ga. App. 575 (125 SE2d 218). Certiorari was granted primarily to review rulings which applied the family purpose doctrine to a situation likely to reoccur.

Considering first the negligence feature of the case, we [278]*278conclude that, under the evidence, it was a question of fact for the jury whether the defendant’s wife failed to exercise ordinary care to avoid the negligence of the driver of the approaching automobile and whether any such failure was a proximate cause of the plaintiff’s injuries. See Anderson v. Williams, 95 Ga. App. 684 (98 SE2d 579).

“A motorist is not entitled to insist upon his right to a full half of the highway when an approaching vehicle is over the center line. He is under a duty to; exercise ordinary care to avoid a collision by turning to the, right . . . The extent of the turn to the right which may be required will depend upon the position of the vehicle and other circumstances.” Blashfield, Cyclopedia of Automobile Law and Practice, Yol. 2, §§ 897, 898, pp. 62, 63. Whether to make such a turn, when and how far, in the case here were questions for the jury.

The occupants of the Ferguson car were passengers, not guests, in a private vehicle. Therefore, the duty owed them was one of ordinary care. Fountain v. Tidwell, 92 Ga. App. 199 (5) (88 SE2d 486); Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 4, part 1, § 2271, p. 296.

We turn now to the family purpose feature.

Under the family purpose doctrine, one who furnishes an automobile for the pleasure and convenience of his family makes the use of such vehicle for such purpose his affair or business, and is liable for the negligence of a member of the family driving the vehicle for such purpose with his consent, express or implied.

In dealing with this feature of the case, we must consider the doctrine as it has been established in Georgia and determine if the instant facts are within its scope and policy.

The landmark case on this point is Griffin v. Russell, 144 Ga. 275, 277, 287 (87 SE 10, LRA 1916F 216, AC 1917D 994). There, a mother owned an automobile and allowed her minor son to operate it. While he was driving with several of his friends he collided with a buggy. The occupant of that vehicle sued the mother. After reviewing a number of holdings from other jurisdictions this court (one Justice concurring specially and another absent) chose to adopt the doctrine, then [279]*279in its formative stage. It held that the allegation “Defendant kept said automobile for the comfort and pleasure of her family, including . . . [the son]. He was driving said automobile at the, time of the injury herein complained of, and was driving the same for the comfort of himself and friends, wlm were riding with him, by and with the consent of the owner of said car, the defendant,” was not subject to demurrer, pointing out that “If [the mother] kept the automobile to- be used for the comfort and pleasure of her family, including her minor son as a member thereof, such use was her business or affair. . .”

In its arrival at that decision, this court quoted with approval from Birch v. Abercrombie, 74 Wash. 486 (133 P 1020, 50 LRA (NS) 59): “The agency [is] induced by the fact independent of that relationship [parent and child], that the daughter was using the machine for the very purpose for which the father owned it, kept it, and intended that it should be used. It was being used in furtherance of the very purpose of his ownership, and by one of the persons by whom he intended that purpose should be carried out. It was in every just sense used in his business by his agent. There is no possible distinction, either in sound reason, sound morals, or sound law, between her legal relation to the parent and that of a chauffeur employed by him for the same purpose. The fact that the agency was not a business agency, nor the service a remunerative service, has no bearing upon the question of liability.”

In the case at bar, the defendant contends that since his wife was not in fact acting for him or for the family as such, but was on her own individual business, the family purpose doctrine has no application. We cannot agree.

The decision in Griffin v. Russell, 144 Ga. 275, supra, laid a broad foundation for the doctrine in Georgia, and subsequent decisions of this court and the Court of Appeals have reaffirmed it.

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Ferguson v. Gurley
127 S.E.2d 462 (Supreme Court of Georgia, 1962)

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Bluebook (online)
127 S.E.2d 462, 218 Ga. 276, 1962 Ga. LEXIS 480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferguson-v-gurley-ga-1962.