Koutras v. Lazarus

179 S.E.2d 106, 122 Ga. App. 870, 1970 Ga. App. LEXIS 1066

• Court: Court of Appeals of Georgia
• Decided: October 26, 1970
• Docket: 45349
• Status: Published

Opinions

Hall, Presiding Judge.

The plaintiff contends that Lazarus by virtue of his co-ownership of the jeep owed her a duty not to maintain it in a defective condition. We disagree. The law of Georgia is plain and unambiguous in holding that: "To allow any recovery” based upon mere ownership of an automobile "would deprive the defendant of property without due process of law, would authorize a recovery without liability, and would compel payment without fault.” Frankel v. Cone, 214 Ga. 733, 736 (107 SE2d 819); Lloyd Adams, Inc. v. Liberty Mut. Ins. Co., 190 Ga. 633, 641 (10 SE2d 46). See also Hines v. Bell, 104 Ga. App. 76, 85 (120 SE2d 892); Cleckler v. Williams, 104 Ga. App. 72 (121 SE2d 44); Durden v. Maddox, 73 Ga. App. 491 (37 SE2d 219); Rogers v. Carmichael, 184 Ga. 496 (192 SE 39); s. c., 58 Ga. App. 343 (198 SE 318) for the principle that ownership of a motor vehicle is not sufficient to impose liability on the owner for injury caused by the driving of a third party.

The question of whether defective maintenance can be the basis of liability in the absence of the owner’s consent to or knowledge of its operation was raised in Reddy-Waldhauer-Maffett Co. v. Spivey, 53.Ga. App. 117, 121 (185 SE 147): "The plaintiff asserted that the owner of the truck was [also] liable on the theory that it permitted a defective vehicle to be placed in the hands of another party, and that under the familiar rule of law it is responsible for injuries proximately resulting from the use of such a vehicle.” This court ruled that "Even if the owner knew that the car was out of repair . . . but on the night in question did not know that the employee would use the car, it would not create a liability on the part of the owner. The use of the car . . . was without the knowledge or consent of the owner, and was entirely unauthorized. We can not approve so broad a ground of liability on the part of automobile owners as is contended for by the movant.” If this principle of law is applicable where the defendant is the sole owner it is beyond cavil that it is even more applicable where a defendant is a co-owner. See Raley v. Hatcher, 61 Ga. App. 846, 847 (7 SE2d 777). It is elementary that neither co-owner has the right to possession of their vehicle to the exclusion of the other. The Supreme Court recently held in rather strong language that: "We would not know, and counsel fails to show us how Miles, holding only joint ownership in the personalty, could control Phillips who also owned it jointly with him. In such circumstances neither law nor equity can place any responsibility upon Miles for what Phillips did and which he was helpless to prevent.” Miles v. Harrison, 223 Ga. 352, 354 (155 SE2d 6).

To the best of our knowledge the Georgia law on this subject is identical to that of all other jurisdictions which follow the fault doctrine of liability. "An owner of a motor vehicle who knows . . . of its defective or unsafe condition, but permits another to operate it, without warning him of the defect, is liable for injuries resulting from the defective condition; but he is not liable if the vehicle was operated without his knowledge or consent.” 60A CJS 940, Motor Vehicles, § 430. The basis behind this law is that the owner of the vehicle owes no duty to the plaintiff in this type of situation. "The ideas of negligence and duty are strictly correlative, and there is no such thing as negligence in the abstract; negligence is simply neglect of some care which we are bound to exercise toward somebody. ... It is not sufficient that there be a general duty to the public which is violated, but in all civil cases, the right to enforce such duty must reside in the individual injured because of a duty due him from his injurer, or he cannot recover.” Huckabee v. Grace, 48 Ga. App. 621, 628, 630 (173 SE 744). "Proof of negligence in the air, so to speak, will not do.” Pollock on Torts 361 (14th Ed. 1939).

The case of Morden v. Mullins, 115 Ga. App. 92 (3) (153 SE2d 629) is not contrary to the above authorities. It involved a jointly owned floating boat dock which, every night it sat in the water, was a hazard to navigation. This court held: "Both owners are liable as such for negligence in the maintenance of the property . . . where both knew and acquiesced in . . . leaving the float overnight in a navigable part of the lake, without lights or reflectors.” The culpability of the co-owner (who had neither built nor sited the float) was allowing it to remain in the water. Clearly. th« would not have sent the case to the jury if the evidence showed the co-owner had reasonably believed the float to be sitting harmlessly on dry land, regardless of its known defects.

Whatever liability there is for the plaintiff’s injuries rests upon the alleged negligence of the other two defendants (Oliver and Honeycutt) whose invitation she accepted and with whom she rode on the ill-fated midnight jeep ride. Accountability lies with them, not with Lazarus.

The trial court was not in error in granting Lazarus’ motion for summary judgment.

Judgment affirmed.

Jordan, P. J., Eberhardt, Pannell and Whitman, JJ., concur. Bell C. J., Deen, Quillian and Evans, JJ., dissent.