Ferguson v. Gurley

125 S.E.2d 218, 105 Ga. App. 575

• Court: Court of Appeals of Georgia
• Decided: March 23, 1962
• Docket: 39092
• Status: Published

Opinions

Frankum, Judge.

1. Before the head of a household can be held liable for the negligent operation of a family automobile by a member of his family, it must be shown that such operator was a member of his family and that the automobile was a family-purpose vehicle. Studdard v. Turner, 91 Ga. App. 318 (85 SE2d 537); Marques v. Ross, 105 Ga. App. 133 (123 SE2d 412), and cases cited therein. The leading cases on this principle of law are Griffin v. Russell, 144 Ga. 275 (87 SE 10, LRA 1916F 216, AC 1917D 994), and Hubert v. Harpe, 181 Ga. 168 (182 SE 167). In order for the “family-car” doctrine to be applicable, it must appear that the head of the household furnished and maintained the automobile for the pleasure, comfort or convenience of his family so as to bring the operation of the automobile by a member of the family within the scope of the household head’s “business.” Cf. Studdard v. Turner, 91 Ga. App. 318, supra; Robinson v. Hartley, 98 Ga. App. 765 (106 SE2d 861); Hirsh v. Andrews, 81 Ga. App. 655 (59 SE2d 552); Johnson v. Brant, 93 Ga. App. 44 (90 SE2d 587); Owens v. White, 103 Ga. App. 459 (119 SE2d 581).

“When it is first established, at least prima facie, that a car is a ‘family-purpose’ car, then the agency of the family member driving is prima facie established, but the major premise may not be shown by assuming that proof of ownership plus a family member’s driving is family purpose.” Durden v. Maddox, 73 Ga. App. 491, 493 (37 SE2d 219). See Grahl v. McMath, 59 Ga. App. 247 (200 SE 342); Hirsh v. Andrews, 81 Ga. App. 655, supra; Marques v. Ross, 105 Ga. App. 133, supra.

In Hirsh v. Andrews, 81 Ga. App. 655, 658, supra, the essential elements of the family-purpose doctrine were held to be: . . (1) the making available an automobile for family use, and (2) liability arising when the automobile so furnished is used within the scope of the purposes for which it was made available.”

With the above principles of law firmly in mind we must apply them to the facts in the instant case. There was sufficient evidence to authorize the jury to find that the plaintiff was riding in a station wagon operated by the defendant’s wife, a member of his family, at the time of the collision, as a share-the-expense-passenger, which fact shows that the operator (wife) was duty bound to exercise ordinary care toward the plaintiff. Fountain v. Tidwell, 92 Ga. App. 199 (88 SE2d 486).

The defendant testified that the station wagon was registered in his name, financed in his name, the original bill of sale was made in his name when the station wagon was purchased, and when it was repaired, the repair bills were charged to- him.

In view of the entire testimony and in construing the evidence, as we must, in the light most favorable to the verdict, we are of the opinion that the jury was authorized to conclude that the station wagon was owned by the defendant at the time of the collision, and that he furnished it to his wife to use in any manner she might see fit. See Vaughn v. Butler, 103 Ga. App. 884 (121 SE2d 72). Accordingly, it was a jury question whether or not the defendant maintained and furnished the station wagon as a family-purpose automobile, and whether the scope of the purposes for which the same was made available to his wife included using it as transportation to and from her place of employment, which issues the jury found against the defendant. Mulvey v. Barker, 138 Conn. 551 (86 A2d 865). See also Perfetto v. Wesson, 138 Conn. 506 (86 A2d 565).

The general grounds of the motion for a new trial are not meritorious. Because there was an issue for the jury, the court did not err in denying the defendant’s motion for a judgment notwithstanding the verdict. Special grounds 4, 5, and 7 are not meritorious.

2. Special ground 6 assigns as error certain portions of the court’s charge relating to concurrent causes which operate together to cause an injury, upon the ground that there was no evidence to show that the defendant’s wife was in any way negligent, and, accordingly, the defendant contends that such charge was not authorized by the evidence. The facts in the instant case are similar to those of Anderson v. Williams, 95 Ga. App. 684 (98 SE2d 579), and it. was a jury question as to whether the defendant’s wife failed to exercise ordinary care to avoid the negligence of the other driver in the collision. This special ground is without merit.

3. The demurrers to the petition present questions involving essentially the same principles of law as discussed above. The court did not err in overruling the demurrers.

Judgment affirmed.

Nichols, P. J., and Jordan; J.} concur.