*1 38365. CHANCEY v. COBB. Rehearing denied
Decided October October Way E. Highsmith, Anthony plaintiff A. Alaimo, for in error. Gowen, Fendig & Conyers, Dickey, Conyers, Chris Reid W. Harris, contra. Judge. The they facts of insofar
Carlisle, question concerned sought presented the as- signments of error are as follows: The defendant, Cobb, Charles Jr., invited the Penelope deceased him Chancey, accompany and his cutting. wife to a watermelon The plaintiff, Mrs. Chan- cey, the sister of the defendant and the child’s con- mother, and agreed daughter sented for defendant, her accompany though she not go along. herself did returning from the watermelon cutting, defendant’s automobile collided with passenger train crossing City of Brunswick, plaintiff’s daughter plaintiff was killed. brought suit against company the railroad named, defendant here subsequently disposing against claim com- railroad pany by accepting a settlement of $20,000, giving company in return a covenant not to sue. Thereafter the suit proceeded against Charles Cobb, Jr., and was tried the the- ory that Cobb owed deceased of exercising merely slight care, negli- would be liable gence. The judge theory, submitted the case jury returned a verdict for plaintiff the defendant. The made a general motion for a grounds new trial on the and on special ground, complained one in which she of the failure jury, court to instruct request, effect, that the care. exercise would for failure to liable ex- denied motion and the trial overruled judgment. ception here is in error brief concedes
Counsel
exactly deciding
issue
Georgia case has been found
*2
in-
reasoning that an
presented. However, he advances the
guest
a
incapable
consenting
tender
of
years
of
is
become
fant
an infant could
passenger in an
that
such
automobile, and
since
required
be
give
necessarily
it
could not
to with-
of
carriage,
the
and that
the
the
during
draw consent
ought
be
exer-
passenger
such a
driver, therefore, toward
safety.
support of
passenger’s
care for
In
cise
such
chiefly upon
and
position counsel
relies
the cases
this
cites
(31
and,
Ind.
Thrun,
670);
Fuller
N. E.
2d
(216
262).
P. 2d
Adamski,
Kudrna v.
In of and contentions of the tiff error, quote this court can do no better than to from opinion exhaustive and well reasoned (1958 of Iowa Iowa), in the case of Horst v. Holtzen 90 N. W. 2d Thompson for the speaking Justice said: a considerable upon “There is volume of authority question years of a minor of tender qualifying adopted which have been generally statutes the various require states. Some them ac- effect an invitation example as for ceptance, California Nebraska. argued by appellant being implies invitation, express or implied, day acceptance; and that thirteen old infant is accepting, and so be guest. cannot Except for dicta in few found there are none hold cases, flatly that may not under some circumstances Other cases, by relied defendant-appellee, say acceptance other having legal custody and care of infant. cases cited are, without exception, *3 in a those which was taken an automobile, guardians into its absent natural any or approval consent from them, or, Hogan, as in Hart v. 173 Wash. 24 P. in 598, 99, 2d which accompanying was herself guest. not a There in is, in the fact, latter case intimation that child’s status follows parent. Likewise in Kudrna v. Adamski, 188 Or. 396, 262, P. 2d 16 A. plaintiff L. R. 2d from 1297, which quotes, the driver car not was its but owner, was it operating the re- quest injured of the father and mother of infant because father, who was the actual owner, was not able to make the trip. supports There dictum which plaintiff’s position; but distinguished opposite has been case and an result in reached later case of Welker v. Sorenson, 209 Or. 2d 402, 306 P. Oregon 737, 738. pointed out, in the later the Kudma case, in mother case the herself was a guest, and that there it said: ‘We do had not decide a child of tender years any under cannot, guest.’ be circumstances, held in the Welker that when case the child was with its mother, guest, children, was her custody, were also guests. Hulen, upon cases: Rocha v. largely two
“The relies Thrun, Fuller v. 478, 483; 44 P. 2d App. 245, 2d Cal. will be observed neither 2d 670. It App. 407, 31 N. E. Ind. resort. In neither by a court last was decided these cases natural accompanied guardian, injured case was of such any consent nor was there evidence says acceptance each ride. There is dictum to ride cannot accepting an invitation that an infant particular statute involved. wording be guest, of Buckner Vet- pointed out the later case distinction 67, 269 P. 2d 69. The California 124 Cal. 2d terick, Code, defines a 403, West’s Ann. Vehicle statute, Section highway without ‘accepts a ride in vehicle one urged, implies it is compensation ‘Accepts’, such ride.’ giving being incapa- acceptance, and an and small invitation guest. ble cannot The Buckner su- consenting, become as whether decisions, such points important pra, many out rendered, other medical performed services operation shall parents. minors their constantly necessarily for are ma'de what church, to what might added decisions as To this in what live, shall attend; where it school, child shall journeys may take, it may indulge, amusements it good determinations. important host of other There seems usually parent, could why guardian, natural reason vehicle, a motor accept gratuitously an invitation ride pointed We Buckner Vetterick so holds. child. given actually in which no case it the child was not which was held that 2d 319 P. category Jones, Colo., is the recent Green v. case of achieve that ‘To flatly stated, true, there It is *4 expressed or “guest” invitation, an there must be status deed.’ formal, or act or implied, acceptance, informal, injured two child, aged that the goes say on The then not a accept an invitation so could could not years, overnight grandmother, with her had been left She automobile, in her transport morning next undertook to whether the injured showing There is no her. doing so It is of course parents. of the child’s the consent trip was with interpret lor statutes state; Colorado court to own far opinion acceptance but as its an invitation are so holds always ‘guest’ necessary relationship, to create a or that where requirement the statute makes or other natural guardian accept agree. for the we not do authority are strong logic currents of both, think, we contrary. Vetterick, “In addition to Welker v. Sorenson and v. Buckner many both are supra, holding cases a child tender there years may guest. Many say invitation, be a cases these that no implied acceptance or or express, necessary to create guest status. The Arkansas has said: ‘It will defining guest be observed statute no makes exception in favor minors have authority no to write we exception Tilghman statute.’ into the v. Rightor, 229, 199 943, Ark. S. W. 2d Morgan
“In Kan. Anderson, 814, 868, P. 2d construing (a) reading: statute . ‘. . is trans- ported by operator the owner of a motor guest, or vehicle, as his payment transportation for such . . .’ said: ‘The weight authority is that minor as well as an adult can be “guest” unaccompanied even though by parent guardian or express though and even
been shown.’
“The Appeals Texas Court of Civil was faced interest- ing situation involving question whether incapable one assenting transportation accepting invitation to ride could be Linn guest, in Civ. Nored, Tex. App., 133 S. 2dW. appellant 237. There he contended could have been a guest because at he the time rode he was so he intoxicated incapable knowing was doing assenting or of anything. court found no merit holding: this position, guest ‘Our clearly provides statute the creation of the relationship is based that no paid fact consideration is transportation; for the
“The holding Authorities some under circumstances a small assenting becoming in a motor operate not a vehicle statutes in a narrow
641 of them make Language used some tends to field. Properly simple question complicated and confused. otherwise categories: they into overlapping fall two cases classified accepting which the child an invitation to ride charge accepted and was not natural guest as him; which the statute itself defined cases accepts distinguished Whether, one who invitation. so classified we sound, are not called to determine. when But rule neither of these exists clear. conditions Supreme cogently As Arkansas Court remarked in passage quoted above, makes between the statute no distinction minors, right adults and and the courts have no to amend doing. statute by so 'guest’,
“A by as defined Webster’s New International Diction ary, 2d Edition, is: 'A entertained in one’s house or table; one’s a visitor pay; hence, person entertained without whom the hospitality home, of a club, etc., Highly extended.’ significant given is the page definition in 2 Restatement, Torts, 1272, “guest” sec. 490: ‘The word is used to denote one whom possessor or owner aof motor car or other vehicle invites permits or ride (Italics with him as a gratuity, . . .’ supplied.) permission Under this definition mere is sufficient constitute a free-rider a permission Either invitation or create relationship. sufficient to definition been has referred to, Supreme with approval, Court of Illinois in Miller Miller, Ill. 273, 69 N. 878, E. 2d 882.
“The record in dispute the case at bar shows plaintiff’s mother asked the defendant, via telephone, for the ride meeting society. to the of the church emphasizes This permissive rather than the invitational feature transporta- of the tion. aOf somewhat similar factual situation, Massachu- nothing setts said: ‘He nothing did and said invite analogy the nearest them, and us is occurs to guest, presence that of self-invited whose host acquiesces enjoyment promote, whose seeks to or that of a gratuitous bailee.’ West Poor, 183, 960, Mass. 81 N. E. (NS) 936, R. A. L. Cyclopedia Practice,
“Blashfield’s of Automobile Law and says ‘. . . where, Permanent Sec. this: Ed., Vol. or willful law, wanton, statute common liability misconduct essential to existence of reckless part applies gratuitous invitee, host to *6 ” although is . . .’ guest full an infant force, the court de- applicable While rule this State results from the not legislative does enactment, cisions rather than fact from applicable alter principles. the in the the the
Following reasoning of Iowa daughter Horst deceased of this court holds invitation, with riding who was defendant at pleasure upon for her bestowing and own and benefit and for with the compensation ride, no benefit in might possible exception naturally accrue him in of such to enjoying pleasure company, her and of guest in the passenger was a mother, and the consent of owed automobile to whom the defendant defendant’s slight safety, of care for her and the trial did exercising theory. jury not err to the submitting not overruling trial court did err in follows that the sole for a new trial. special ground of the motion trial The evidence authorized verdict court did not overruling grounds err in motion. general of Judgment J., Nichols, Frankum, P. Bell and Gardner, affirmed. JJ., Felton, J., Townsend, J., concur. C. dissent. dissenting. Code Judge, provides: Chief 105-1803
Felton, § tort general against rule committed there can “As person ob- consenting thereto, if consent is free not of a tained action fraud, and is the sound mind. The consent person incapable af- consenting, of a of such as a minor, right rights any having other of action for fect injury?’ Code my opinion the rationale of above section questions decisions of our courts on consent rule, risks that a assumption to torts a motor ve- against by ordinary to tort committed him hicle consents negli- assumes due injury ordinary to risks right gence If I am this view the would driver. apply incapable a minor consenting to guest and torts ordinary due to therefore care. It would follow, provisions that a mother of the Code section can recover for a tortious death her child due to negligence where think incapable consenting. the child was I against public would be for a policy or other mother, person standing give parentis loco to a tort to child. Consenting for child to ride with another con- not a sent to a tort. Judge, dissenting. question of an op- whether
Townsend, erator of a slight motor or ordinary vehicle owes care guest incapable negligence (Riggs contributory Watson, 77 Ga. S. E. 2d 900), who is of con- senting brings to be a passenger, my question mind the operator reason holding exists liable gross negligence only. An premises, invitee on the owner’s *7 anywhere else except ordinary in an automobile, entitled is to appears care. “guest Georgia that the grew up rule” in aas the kind of mistake in instance. first It has been is said it founded on common but both law, Tennessee, the Alabama and common-law the follow states, ordinary care rule. Neither we nor regulating have the statute issue. The first case the subject on by Judge Epps was written Luke in Par- v. (106 rish, 297). 26 App. Ga. E. 399 S. that the He said issue appeared open question be to an in Georgia, and cited Self (5 Dunn, 42 544) Rep. authority Ga. 528 Am. as for proposi- the tion that negligence gross. actionable must be case Self personal action for of property by loss an accommodation ferrier. by slight bound diligence He was held only, citing what is Code relating now 12-302 to of liability § depositary. naked first case I on the find subject is Hall, (148 Slaton v. Ga. 710, S. E. 741, 73 891) says A. L. R. merely, citing authority, that rule applies higher degree “the Alabama of care than Georgia.” rule does the
I think it require diligence inconsistent to less toward an in- anywhere vitee in an than automobile I else. would like to re- strict rule possible as much as to make it with consistent been logical duty generally. reason owed No invitees care
given requiring slight far for of so I know as the most reasonable passenger If one exists, invitee. is explanation by accepting gratuitous be would that the invitee accepts automobile ordinary invitation hazards of the usual ordinary that traffic and those hazards be said include proper negligence part on the driver. If this is ra- giving consent in- tionale, then a child who is is ordinary capable agreeing to assume driver’s the risks negligence. anyone that takes young I think child duty ordinary care care should owe least duty and that this would whether waived consented taken in automobile or being mother position any person young not. I that entrusted take the parents well its for child owes child as care is true whether it is automobile or safety, this anywhere else. 486) (4) (88 E.
Fountain S. 2d Tidwell, 92 Ga. duty it the trial is authority proposition applicable the issues of the charge the court to law ex- the defendant charging that this includes proper though remains even ordinary care ercise plaintiff’s petition brought theory that the on estoppel part only slight her There on owed care. gave her plaintiff that the mother who contend to so unless full value the life plaintiff suing as the her predicated action on estopped because she recognize in the first I instance. tries it theory an action brings where a *8 applicable law charge on that trial led to theory, the court is theory. 199, supra, 92 Ga. Tidwell, Fountain v. mother for full of the behalf of the was action on value mother petition of the However, life deceased child. of her with the facts under states the in the Fountain by amendment case. as was done unchanged after charge remained There the amendment. trial into although court was led I feel that
Accordingly, position that error, my error nevertheless because it is exists six-year- than care requiring ordinary less toward a taken care control another from custody, into old such child taken into is inhumane. That I think change my automobile does not views. such a owes care the child from the time takes it from regardless place method until he returns employed. STORES,
38467. COLONIAL v. STANLEY. INC. Rehearing denied Decided October 10, October 26, 1960.