52 Ga. App. 475 | Ga. Ct. App. | 1936
Lead Opinion
This action was brought by a father against a mother and minor son, who lived at home with her. The plaintiff alleged that his son, then about 18 years of age, was injured by the gross negligence of the minor defendant in operating an automobile furnished by his mother to be used about the family business, pleasure, and convenience, and which was being used by him for such purposes, with the knowlege and consent of the mother, at the time the plaintiff’s son was injured. The plaintiff claimed damages for diminution of his son’s earning capacity during minority, and for medical expenses incurred as the result of the injury. The defendants demurred and to the overruling of the demurrer they excepted pendente lite. They filed answers denying liability. The trial resulted in a verdict for the plaintiff for $2000. The defendants’ motion for new trial was overruled, and they excepted, assigning error also on the ruling excepted to pendente lite.
1. That the petition set up a cause of action against the minor defendant for gross negligence was adjudicated in the action brought by the plaintiff’s son against the same defendant. The judgments overruling the demurrer to the petition and denying a new trial in that case were affirmed by this court. Evans v. Caldwell, 45 Ga. App. 193 (163 S. E. 920). It was 'held that the evidence supported a verdict in favor of the plaintiff, and that such evidence did not show that the plaintiff was injured because of his failure to exercise due care for his own safety in continuing to ride in the automobile driven by the defendant, after discovering that the defendant miglrt be drinking intoxicating liquor and was operating the ear at an unlawful rate of speed.
In the instant case Mrs. Evans, mother of W. R. Evans, (who was a member of the family and residing therewith, and who was operating the car at the time of the wreck) testified: “I own the automobile that was in the wreck. I maintain that automobile for the pleasure and comfort of the family. . . He left home with it with my knowledge and consent. . . I let him have the car on that evening in order that he might go to the picture-show, with the understanding that he would come home immediately.” The testimony further showed that the son, after the picture-show, started to a nearby community to a dance, and on the way the ear was wrecked. The judge charged the jury as follows: “I charge you that under the evidence in this case, in
2. The so-called “family-purpose doctrine,” relative to an automobile furnished for the comfort and pleasure (“business”) of the family, prevails in this State. '“While the wife was not obliged to furnish the use of an automobile to the children or her family from her separate property, yet having voluntarily done so, and having permitted its use as a part of her parental duties, she was liable where the injury occurred by reason of the operation of such automobile by a member of the family in a negligent manner, where such use was for the family pleasure and comfort.” Ficklen v. Heichelheim, 49 Ga. App. 777 (176 S. E. 540). A mother, the owner, is liable for the minor son’s negligent operation of an automobile maintained for the comfort and pleasure of the family, where the minor son resided with the family and drove the automobile for his own pleasure with the expressed or implied permission of the mother. Hubert v. Harpe, 181 Ga. 168 (182 S. E. 167). “To make the owner of an automobile liable for his driver’s negligence, it must be established that the latter was acting within the scope of his employment. In other words, the owner of a motor vehicle is liable for the acts of his chauffeur when the latter is acting within the scope of his master’s business. Conversely, the owner is not liable for the conduct of the servant when the latter is not acting within the scope of his employment. While it is, of course, true that the master rarely commands the servant to be negligent, or employs him with the expectation that
In Philadelphia & Reading R. Co. v. Derby, 55 U. S. 468 (14 L. ed. 391), it was said: '“The fact that the engineer having control of the colliding locomotive was forbidden to run on that track at that time, and had acted in disobedience of such orders, was no defense to the action. A master is liable for the tortious acts of his servant when done in the course of his employment, although they may be done in disobedience of the master’s orders. . . The rule of ‘respondeat superior,’ or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent, or deceitful. If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize, or even know of the servant’s act or-neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant’s employment. See Story on Agency, § 453; Smith on Master and Servant, 153. There may be found, in some of the numerous cases reported on this subject, dicta which, when severed from the context, might seem to countenance the doctrine that the master is not liable if the act of his servant was in disobedience of his orders. But a more careful examination will show that they de
In Huddy’s Cyclopedia, supra, 257, it is said: “If a trip is being made on the master’s business, it is immaterial that the chauffeur [the son] is using the car for his pleasure also.” And on p. 324 it is said: “The person upon whom it is sought to fasten liability under the ‘family-car’ doctrine must own, provide, or maintain an automobile for the general use, pleasure, and convenience of the family. . . In order to bring a case within this rule it must be shown that the car was in fact a family-pleasure car. But the mere fact that a car is purchased and used for business purposes does not prevent its coming within the ‘family-car’ doctrine, where it is also used for family pleasure.” In Ryan v. Ferrell, 208 Cal. 200 (208 Pac. 945), one of the authorities cited as supporting the text, it is said: “Where the servant is combining his own business with that of his master, or attending to both at substantially the same time, no nice inquiry will be made as to which business the servant was actually engaged
3. In the instant case the automobile was furnished by the mother, who was the owner, for the pleasure and comfort of her family. When the son, a member of the family, with the owner’s consent drove the car to the picture-show, he was certainly using it in furtherance of furnishing pleasure for himself as a member of the famity, and under the “family-car doctrine,” or the “family-purpose doctrine,” which is of force in this State, the “business” of the owner was the furnishing of pleasure to a member of the family, and when the son drove the car to the picture-show he was acting for the mother within the scope of her “business.” The car was not furnished by the owner merely as an accommodation to her son with no interest or concern in the purpose for which the son was going to use it. The transaction was not a'mere bailment of the car, for the son was using it in the “business” of the mother, that “business” being the furnishing of pleasure to the family of which the son was a member. Hubert v. Harpe, supra. And so far as the rights of the plaintiffs are concerned, it would make no difference that the son used the forbidden means that he did use to furnish pleasure for a member of the family; provided the mother placed the son where he could, with her implied au
In House v. Fry, 30 Cal. App. 157 (157 Pac. 500) it was said: “The court’s finding that the automobile was being driven without the knowledge of William C. Fry [father], and contrary to his express order, is sustained by the evidence. He had sent a telephone instruction, which was communicated to his son, to wait at home for further orders, and this instruction was disobeyed. But it also appears, without conflict, that the trip was being made for a purpose within the general scope of the authority of Lawrence
4. A father may recover for the loss of services of his minor son. It is not essential to this right of the parent that the child should be actually rendering services to the parent at the time of the injury. The parent’s right to the services which the child is capable of rendering is sufficient to support the action. Brawner v. Bussell, 50 Ga. App. 840, 843 (179 S. E. 228). When the parent has not lost dominion or control over the child, but still has the power to claim the services during minority, he can recover for loss of services resulting from- a tort committed at a time when the child had the ability or capability to render services. Amos v. Atlanta Ry. Co., 104 Ga. 809 (31 S. E. 42).
(5)' In the defendants’ answers no defense was set up that the father had manumitted his son. The evidence showed that the father permitted the son to go to work in another town when he was sixteen years old; that from then until the injury the son worked at various jobs, paying for his board and his clothes; that his father did not contribute any of the necessaries during this time; but that the son gave to his father what he earned above his living expenses. There was no evidence that the father had released his claim to the services performed by his son, except that he -could work upon such jobs and pay his own expenses.. There was no evidence that the father had not revoked any manumission arising from allowing him temporarily to work out and receive the proceeds of his labor to the extent of paying his own expenses, if any should arise. See Hunt v. State, 8 Ga. App. 374, 376 (69 S. E. 42). From the time the son was injured, being then eighteen years old, until he was able to work and procure another job, for over a year, the son remained at home and was cared for by his father. The father is only suing for the diminution of his son’s earning capacity during his minority. It follows that there was no error in the charge of the court that the father could recover
(c) The plaintiff was liable for the necessaries furnished his son. Medical expenses incurred by reason of the injury complained of in this case are necessaries. Code of 1933, §§ 74-105, 20-201; Brown v. Brown, 132 Ga. 712, 715 (64 S. E. 1092, 131 Am. St. R. 229). There was no error in charging the jury that if they found in the plaintiff’s favor he could recover the medical expenses incurred. This is true even though he had not paid them. He was liable therefor. Kitchens v. Ryner, 8 Ga. App. 587 (69 S. E. 1086).
5. A ground of a motion for new trial assigning error on some ruling of the court, such as a refusal of a request to charge, must be complete within .itself. A request to charge must be perfect in form; and it is not perfect when an inference is required to make it correct, and there is no error in refusing such a request. Davenport v. Waters, 40 Ga. App. 99 (4) (148 S. E. 772); Etheridge v. Hobbs, 77 Ga. 531; Cain v. State, 41 Ga. App. 333, 340 (153 S. E. 79). A written request to charge a named principle, proposition, or theory of the case or of law is not sufficient and is too indefinite. If the movant desired a charge on a named principle or theory, he should have submitted a request that had incorporated therein the concrete proposition of law that he wished the court to charge. Wright v. W. & A. R. Co., 139 Ga. 343 (3) (77 S. E. 161); Hudson v. State, 26 Ga. App. 596 (4) (107 S. E. 94); Allen v. State, 8 Ga. App. 284 (2) (68 S. E. 1009); Rice v. State, 50 Ga. App. 191 (177 S. E. 278). It has been held that a ground of a motion for new trial alleging that the court erred in failing to charge on the law of “involuntary manslaughter in the commission or performance of a lawful act” was not complete within itself, and could not be considered by this court. Hudson v. State, supra; Smith v. State, 125 Ga. 300; Burney v. State, 142 Ga. 812 (83 S. E. 937). Therefore it was properly held, in Jones v. State, 46 Ga. App. 679, 682 (169 S. E. 46), that a ground of a motion for new trial, assigning error on
Under the facts of this case the judge did not err in refusing a request by the defendant to charge that “it is a misdemeanor under the law of Georgia for a person to operate an automobile upon a public highway of this State while under the influence of intoxicating liquor; and in order for a person to be guilty of such a crime it is only necessary that the evidence show beyond a reasonable doubt that such person so operating the automobile was under the influence of some intoxicant to any extent whatsoever, whether drunk or not,” and “that all persons aiding and abetting in the commission of a misdemeanor are principals; and if you believe from the evidence in this case that Mac Caldwell procured, counseled, aided, or abetted W. E. Evans in driving said automobile while under the influence of intoxicating liquor, then . . under the law of Georgia plaintiff could not recover for the loss of services of the said Mac Caldwell.” The evidence did not authorize a finding that the plaintiff’s son in riding in the automobile at the time of the accident procured, commanded, aided, or
6. The verdict was not so grossly excessive, under the facts in the record, “as to show bias and prejudice upon the part of the jury.” The medical expenses set up were $675. The verdict was for $2000. Two years and one month elapsed' between the time of the injury and the time the plaintiff’s son reached his majority. The evidence authorized a finding that the injury caused a diminution in the son’s earning capacity. Under the evidence in this case surely the son’s earning capacity was $10 a week, and under the law the father was entitled to it all until the son reached his majority. The father furnished his son with all the necessaries and his living expenses from the time of his injury until his majority. The verdict will not be disturbed unless the court should suspect bias or prejudice of the jury, from its excess or inadequacy. Code of 1933, § 105-2003. The question of damages is one for the jury, and the courts should not interfere, unless the amount of the verdict is so large as to justify the inference of gross mistake or undue bias. §§ 20-1411, 105-2015. The fact that a verdict is large will not, if there is any evidence to sustain it, prevent the trial court from approving it and denying a new trial. Southern Ry. Co. v. Brock, 132 Ga. 858 (64 S. E. 1083); Holland v. Williams, 3 Ga. App. 636. This court has not the samp, discretion concerning a verdict as the trial judge who has approved it. Southern Ry. Co. v. Brock, supra. The trial judge may exercise a sound discretion in refusing a new trial in a case where the verdict may be decidedly and strongly against the weight of the evidence. Code of 1933, § 70-206. A generous verdict will not be set aside merely for that reason. Bullard v. Rolader, 26 Ga. App. 742 (107 S. E. 548); City of East Point v. Hendrix, 27 Ga. App. 485 (108 S. E. 623). Excessive damages are such damages as shock the moral sense to such an extent as to lead to the belief that the jury were actuated by undue or improper motives or influences. Central R. Co. v. DeBray, 71 Ga. 406, 422.
7. The verdict in favor of the plaintiff against both of the •defendants was not without evidence to support it; and no error
Judgment affirmed.
Dissenting Opinion
dissenting. I can not concur in the majority opinion. In addition to the facts there stated I quote the testimony of Mrs. Evans, upon examination by the plaintiff: “I owned the automobile that was in the wreck. I maintained that automobile for the pleasure and comfort of my family. . . I did not keep this car wholly for pleasure. I used it in my business. . . On some occasions when this car was not being used in connection with my bedspread business, I consented for my son, W. B., to use it. . . With respect to this occasion in February, 1931, . . I had my cook stay with my daughter that afternoon, while I went to Cleveland, and I thought I would let the children take her home; and I told W. B. to take her home; and he asked me if he could go to the show, and I said he could if he would come straight home after the show. When I told him he could have the car if he would come straight home after he got out of the show, he said if I thought he would not do that, that my daughter could go with him and bring, the car back, and then I said he could have the car if he would come straight home after the show was- over. I let him have the car that evening in order that he might go to the picture-show with the understanding that he would come home immediately after the show.” Mrs. Evans lived in Dalton; the picture-show was in Dalton. The accident occurred while the son, W. B. Evans was driving the car to a dance at Besaca, fifteen miles distant from Dalton after the picture-show was over. The testimony as to this is not in conflict.
It is contended by the defendant that the undisputed evidence shows that the accident occurred while the son was driving the ear to a dance at Besaca, fifteen miles from Dalton, and that the right to drive it at all was conditioned solely for the purpose of going to the picture-show and returning home which was in Dalton, and that any other use of the car by the son was unauthorized and in violation of the purpose for which it was obtained by him, and not directly or collaterally a part of the trip to the picture-show and back home; that the possession of the car by W. B. Evans was for a restricted purpose; that the charge quoted in
This -case squarely presents the question, whether a parent who allows his child to drive his automobile at all, for the pleasure of the child, and the automobile under such circumstances becomes a “ family-purpose car,” may the parent restrict such child as to the time when and the place where the car may be operated by the child? Does the fact that the car is a so-called “family-purpose car” take from the parent any voice in the restriction of his children in the use and operation of the car? I can readily conceive that under the doctrine as given effect by the courts of this State, if the car is shown to be a “family-purpose car” and is being operated by a minor child, a presumption might arise that
In the present case it is alleged that W. E. Evans "with the express permission and consent of his mother was driving said car.” In the Griffin case, supra, it is said that “a father is not liable for the tort of a minor child, with which he was in no way connected, which he did not ratify, and from which he did not derive any benefit, merely because of the relation of parent and child.” It was there decided that a car kept for the comfort and pleasure of the family, including the minor son, and being operated at the time of the accident for such purpose, will render the parent liable for the negligence of the minor child. It was not there decided nor has it anywhere been decided that because of the fact that a car was kept for the comfort and pleasure of the family the parent and owner lost all control over the time and place of the operation of the car and the conduct of the minor child. The parent is liable in such cases only because the pleasure and comfort of his family is a "part of his business,” and not merely because of the relation of parent and child. In such event he, the same as any other master, retains the right to direct and control his business. It is recognized, as stated in the majority opinion, that “a master is liable for the tortious acts of his servant when done in the course of his employment, although it may be done in disobedience of the master's orders.” In Hays v. Hogan, 273 Mo. 1 (200 S. W. 286, L. R. A. 1918C, 715), it was held: "The owner of an automobile maintained for the use and pleasure of his family is not liable for injuries caused by the negligence of
'In Restatement of the Law of Agency, § 334, it is said: “One may be a servant, although a bad servant, in performing his master’s business at a forbidden place, if the place is within the general territory in which the servant is employed. One engaged to drive an automobile in New York City would not be in the service while driving in Albany; but a servant directed to drive from New York to Albany on the west side of the Hudson would not cease to be acting within the scope of his employment while driving on the east side. In all cases it is a question of degree whether or not the difference in place is so great as to make the act done substantially different from the act authorized. If the driving is an independent journey as distinguished from a mere detour, the servant is upon an enterprise of his own and the master is not