*1 to the alleged Evidence here submitted of the landlord to create was sufficient a for determination question jury. Accordingly, trial court erred in verdict directing a for defendant. Pannell, J., J.,
Judgment Quillian, reversed. P. and concur.
50097. DIXON v. PHILLIPS al. et Judge. Evans,
The owner a purpose automobile allowed son, his minor household, a member of to his drive the car. The drive, son another permitted collision a occurred. The father testified by affidavit on summary judgment that he had expressly forbidden his son to allow any other person drive the car.
The lower court holds that the son notwithstanding automobile, present retaining control and it, direction over owner’s motion for summary judgment should have been granted, plaintiff Held: appeals.
The
here is not
what
the father
instructions
his
gave
son as to the
and manner
in which
way
the son
operated
managed
because the owner
could not limit his liability by
instructions,
private
to which
injured
parties were not
The
privy.
test is as
to whether the car was
scope
owner’s business. The owner had made it his business to
a
furnish
car for the
convenience of members
of his family. The law
does
allow a
principal
insulate
and absolve
of liability
himself
private
Caldwell,
See Evans v.
agent.
440).
Ga. App.
"family
SE
The
doctrine”
is an
re-
extension
principal-agent
lationship, as is held
an earlier
case on the
Georgia
wit,
Russell,
subject,
(1),
In 697), Sievers, and in Myrick Ga. liable, of a held even car was third his son entrusted to a
though car case, At person. 3 of Alexander is made page plain was the son of the owner remained in the car and car, from the receiving benefit which was within for which the owner A furnished same son. different arises no member of the when car present a benefit from its receiving operation; and cases such factual are involving readily situations distinguished.
In
v. Medford,
Golden
The case Carter Bishop, 784), is one wherein a motor common carrier held not liable for the conduct of one who had been substituted as driver without its knowledge consent. Motor common carriers are strictly regulated by the Ga. Public Serv Comm, ice rules, statute and and as to hours and *3 conduct of the drivers. Code Ann. 68-601 et For seq. instance, the driver of a Greyhound not turn it Bus could over to a new driver without the consent of his employer, nor could an on engineer Railroad Georgia off the step and call in engine a bystander to run the engine, and render liable. employer These matters strictly are regulated and it would be against to allow public policy the violation of such rules. (1)
The Moore, cases of Strickland v. 682); Williams, Pritchett v. Ga. App. Howard, Co. Trust 130 Ga. App. of Ga. they insofar as conflict with this opinion, and all other therewith, cases which conflict are expressly cases, unreversed, overruled. The earlier which we are bound to follow decisis, under the rule of stare plainly establish that when a family car that is purpose furnished by the owner to members of the for their family convenience and pleasure is and a purpose, member of the family present in the automobile controlling, or who could of supervise control operation thereof:
1. An owner of a family car liable for the acts members of his family driving said car. for the car is liable The of a
2. owner has entrusted child of a third whom person, acts car. but an extension The doctrine is family purpose 3. and agent. law of principal is being as the car long 4. So owner’s of some member pleasure —even owner is liable. driving, third person though (master) from himself An cannot insulate 5. mere instructions giving private liability children, persons them to allow third forbidding such as car, private to which drive party privy. injured or not
6. test be observed whether in the owner’s business —in being operated at the time wit, the car —to which he furnished the business for so, if family; of his furnishing to members the owner is liable. court erred
For the reasons the lower foregoing summary motion for father’s granting judgment. J., Been, J., P. Pannell, P. reversed.
Judgment JJ., J., Webb, Bell, Quillian, Clark and concur. C. Stolz JJ., Marshall, dissent. May Argued January 23, Decided 14, Rehearing denied June Whelchel, Simpson, L. George B & unlap Gignilliat, III, for appellant. Struble, Bickerson,
McClure, A. Ramsay & John appellees. *4 Judge, dissenting.
Stolz, decisis, majority the doctrine of Relying on stare Moore, 113 Strickland v. opinion specifically overrules Williams, 682); Pritchett Ga. Howard, Co. Ga. and Trust of Ga. 499), and all other cases of the which essence majority conflict with view. "The test opinion is summed in majority up following: at the time to observed is whether not the be — in the business being the owner’s business operated — wit, he of furnishing for which furnished the car to so, of if family; members his the owner is of liable.” This another expression statement is simply (Ga. § former Code Ann. 68-301 L. which p. read: owner of a motor "Every upon vehicle operated public highways, roads or streets of State shall be this liable and responsible injuries death or to person from of property resulting operation such motor if said motor vehicle is being prosecution of the of if business such owner or said motor vehicle is of being benefit such owner.” The difficulty majority with the view is that former Code Ann. 68-301 was declared unconstitutional by Cone, Court Supreme in Frankel Ga. 733 being violative due-process clause the State In Frankel, and Federal Constitutions. Supreme Court stated that "the act clearly due-process violates the clause Constitutions, both Federal and State the reason makes a motor vehicle if the liable vehicle is used in the prosecution of the business or for the owner, benefit of such even though operated without notice her or without her and without knowledge consent, her express or implied.” (Emphasis supplied.) What the General Assembly could not by legislative do Act, this court should not judicial to do attempt by decision.
The majority also holds that the owner could not limit liability his private instructions which the injured Jordan, parties privy. were not In Cowart v. plaintiff sued defendant for injuries sustained when the automobile she (taxi) was driving collided with an automobile owned defendant, being operated one Mitchell pursuant permission Maddox, of one employee. defendant’s Evidence showed specifically defendant had (Maddox) anyone forbade other than from employee Cowart, driving the car. In this court held the defendant liable, "Here it stating: is not a of the automobile with the the owner and the consent of driver an causing in manner injury by driving *5 owner, it goes but of the to the instructions contrary the person It is of whether than that. a deeper the owner the was authorized or driving operating in conditions, any or any it to drive or under operate his may Of an instruct manner whatsoever. course manner or specific not to be negligent servant this, a Notwithstanding while his car. generally such the violates act of servant which negligent It liability. to has subject the master may tort, negligent is a whether that if the act done been said of the master’s in the voluntary, prosecution or and is done time business, is, engaged at the is that servant Davison, master, Fielder v. the latter is liable. serving (77 509, But this statement 139 Ga. SE course, that there has been predicated, of fact upon master and servant. created and exists relationship owner, Mitchell not Here Charlie was the servant Maddox, Cowart, who contracted Mathis unless Jessie cab, authorized, expressly with Cowart to was operate operate or Mitchell to or to Charlie use impliedly, permit the cab. that evidence discloses Jessie
"The uncontradicted Maddox, operate to under his contract with taxicab, anyone else permit without authority was We operate any use or cab for whatsoever. think, therefore, that rules of elementary under Maddox to agency not within the of Jessie power the course of permit anyone else use cab either consent of the owner’s business or otherwise without his scope the owner. Maddox could not thus extend Cowart, supra, without of the master.” agency consent where it p. majority opinion I with the agree cits. doctrine” is an "family stated that such, As extension of the principal-agent relationship. of the most basic One agency. laws governed agent may and fundamental of such "an principles another, not unless delegate authority specifically his princi- § to do so.” Code 4-103. Another empowered his if the "shall exceed violate ple agent risk, instructions, principal he does it at his own as dissenting, having privilege affirming may interest dictate.” Code 4-202. Caldwell, 440),
In Evans v. 52 Ga. SE Kilcrease, 573), Battle v. Cohen v. Myrick Alexander, Golden v. Medford, Ga. 614 on relied there majority, authority was at least an implied general member) from the principal (family only agent *6 to ride in for but direct the of the car operation by others member’s) (family the agent’s own See Golden v. pleasure. Moore, Medford, In supra, particular. Strickland v. (147 Ga. court, this through speaking Justice, Judge, Jordan, Bell, now with now Chief Judges " Eberhardt, Judge, and stated: 'The family purpose family doctrine does not make the mere fact of relationship alone the and the end-all standing "be-all ” here but is itself also the of law grounded upon principles and and principal agent, master servant. Griffin Russell, 144 10, 216, Ga. 275 LRA 1916F AC SE 994); McMath, (2) (200 1917D Grahl v. SE 342). In state, two cases has been held in this where the owner a vehicle kept for the convenience of the turns it the family over to member of family with general authority to direct its or operation, with the knowledge that automobile being by permittee the and others under such that a circumstances conclusion is warranted that the object owner does not others, automobile driven being by permittee being in the automobile which for his being purposes, then the mere fact that another than the permittee physically not the vehicle will operating preclude recovery, itas used for the purposes which it Medford, Golden v. kept. Ga. 614 But, Cohen v. permittee unless the supra. is expressly impliedly authorized the owner by vehicle to appoint subagent the owner purpose, will not 919, be liable. Carter v. 209 Ga. Bishop, 784).’ Powell, Mason v. 92 Ga. 734).” Strickland,
This court in
merely restated that
supra,
Thus,
which had been held
Court.
"Where
by
Supreme
one who
employed
to drive a motor
without
master,
of and against
consent
specific instructions of
not liable for
driver, the master is
a substitute
engages
the act of
driver unless
of the substitute
negligence
by
be ratified
the substitute driver
servant employing
(2)
Bishop,
master.” Carter
Also,
place
bring
"If a master sent a servant
having
business an automobile
to take
another
procured
the servant so sent
repaired,
stead,
the master was
the machine to its destination
unless
of such
person,
not liable for
him,
employ
authority, express
implied,
servant had
v. Levi &
White
was ratified.”
employment
or unless
376) (1911)
Co.,
cits.
Another with Danner in opinion in that same author’s appears opinion (1) (cert. Freeman, 121 v. Ga. App. there denied), follows: "Where which states of a third as to the authorization conflicting testimony for the comfort to drive a motor party in the vehicle child was riding convenience of a minor who control custody and having at the time of the collision and not be thereof, granted should summary judgment said damages against a suit favor of summary in granting The lower court erred owner. v. 75 Ga. App. Cohen judgment. 185); Sievers,
184); v. Myrick Williamson, F2d Mut. Auto. Ins. Co. v. State Farm Moore, 517; 113 Ga. App. Strickland 639).” Williams, 8 Pritchett v. that, holding from this inference that can be drawn only had the evidence as to the lack of the of the third authority to drive party the motor vehicle not been conflicting, summary judgment favor of the defendant would have (It been authorized. will be noted Danner follows a line long represented cites, of cases the five it some which are be now to and all specifically, expressly, overruled.)
In the view summary, expressed by majority is, for all purposes, same as that in for- expressed mer Code Ann. 68-301. In stat- declaring Cone, ute unconstitutional in Frankel v. supra, p. Supreme stated, Court "To hold this statute constitutional, would be hold a liable for the party another, negligent conduct even though trespasser were operating the vehicle against orders of express owner, irrespective of how careful free from was, the only condition that it be the benefit of the owner.”
Also, there is a clear distinction between the Georgia upon by cases relied and the in the majority case facts before the court. In each of relied on cases majority, there atwas least authority for implied general the agent/family member to allow a third party to operate case, vehicle. In this there is uncontroverted evidence of specific son, father to the which were son, acknowledged by the forbidding anyone else to drive the car. The son disobeyed instructions. Under specific facts, Jordan, these the case is controlled by Cowart Moore, supra; Strickland v. Carter v. supra; Bishop, supra; Co., v.White Levi & Freeman, supra; Danner supra. If the doctrine of applied, stare decisis is to be judgment of the trial court should be affirmed.
I am authorized to Judge state that Chief Bell and Judge Marshall concur in this dissent.
50631. ROSS THE STATE.
Webb, Judge. murder,
Jessie Ross indicted and tried