181 Ga. 168 | Ga. | 1935
Lead Opinion
The Court of Appeals (in Case No. 23642) certified the following question: “Where a father keeps and maintains an automobile to be used for the comfort and pleasure of his family, including his wife and minor children, and where he permits a non-dependent, self-supporting adult son to reside in his home without charge, whom he also as a matter of custom voluntarily permits to use and drive the automobile for the comfort and pleasure of the son upon the same footing as the father’s wife and minor children, can the father be held liable for a personal injury to a third person proximately caused by the negligent operation of the automobile by such son, where at the time of the injury the son was driving the vehicle for his own recreation and pleasure by the express or implied permission of the father? See, in this connection, Griffin v. Russell, 144 Ga. 275 [87 S. E. 10, L. R. A. 1916F, 216, Ann. Cas. 1917D, 994]; Stanford v. Smith, 173 Ga. 165 [159 S. E. 666]; Bryant v. Keen,
In Griffin v. Russell, supra, the petition alleged the following: A woman owned an automobile, and had a minor son. She allowed her son to run and operate the car. On a day named the minor son was the chauffeur in charge of the car, operating it for his mother, the owner, and running it on the public road with the knowledge and consent of his mother. The boy, “who was the agent of the said [owner] as hereinbefore alleged, driving said car,” negligently caused it to collide with a buggy in which the plaintiff was riding, causing injury to him and to the buggy and harness. The injury was caused by the carelessness and negligence and by acts and omissions to act on the part of the mother and on the part of the son, “her agent and chauffeur • in charge of said car.” By amendment the plaintiff added the following: “Defendant kept said automobile for the comfort and pleasure of her family, including Jim Bussell [the son], a member of said family. He was driving said automobile at the time of the injury herein complained of, and was driving same for the comfort and pleasure of himself and friends, who were riding with him, by and with the consent of the owner of said car, the defendant.” It was held that the petition stated a cause of action. In the opinion delivered by Mr. Justice Lumpkin it was said: “It may be taken as settled law in this State 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. Chastain v. Johns, 120 Ga. 977 (48 S. E. 343, 66 L. R. A. 958). And this accords with the rulings of other coiirts on the subject. A child, however, may occupy the position of a servant or agent of his parent, and for his acts as such the parent may be liable under the general principles governing the relation of master and servant, or principal and agent. The contested question in cases like the one under consideration usually is whether or not the facts show such a relation and liability arising to the parent therefrom. . . An agent or servant is frequently employed by contract or express agreement; but this is not necessary to establish the relation. It may arise by implication as well as expressly. . . If [the mother] kept the automobile to be
As shown in other parts of that decision, the court examined numerous outside authorities, including several cases in which a contrary view had been taken. The two lines of authority were carefully considered, and a deliberate choice was made between them. The decision in that case, though not concurred in by all
In the present case the father is not relieved from liability merely because the son was an adult and was self-sustaining. It appears that the father kept and maintained an automobile for the comfort and pleasure of his family, including his wife and minor children, and that as a matter of custom he also permitted this adult son, who resided in the same home with him, to use and drive the automobile for the comfort and pleasure of the son, upon the same footing as the wife and minor children. At the time of the injury in question the son was driving the automobile, with the express or implied permission of the father, for his own recreation and pleasure, within the general purpose for which the vehicle was kept and maintained. Then, by what principle of law can the mere matter of age determine the question of liability? The extent to which the automobile might be used for the comfort and pleasure of the family was a question to be settled by the father; and it was also a matter for his own determination as to whether he would include his adult son among the number whose comfort or pleasure he would promote by the use of such vehicle. According to the reasoning in Griffin v. Russell, supra, if the father, instead of permitting the son himself to drive the car, had furnished a chauffeur to take his son for a ride for the pleasure and recreation of the son, he would be liable for the negligence of the chauffeur while conducting such business for the father as master. If the father, instead of supplying a chauffeur, expressly or impliedly permits the son to act as ‘driver, the son would in that case become the servant, provided there is no other change in the circumstances. If the transaction is one of lending, then the father would not be liable. In Watson v. Burley, supra, the court, after quoting definitions of the word “family,” said: “The test is not whether the child is adult or minor, but whether he was using the car for a purpose for which the parent provided it, with the permission of the parent, either
If the furnishing of an automobile for the purpose stated - in the question is within what may be said to be a “business” of the owner, one to whom the car is entrusted for--such purpose is not a bailee, as in a case of lending, but is a servant or agent. If, on the other hand, the car is furnished by the owner merely as an accommodation to the other, with no interest or concern in the purpose for which the other will use it, then its use, whether for recreation or otherwise, is not within the business of the owner, and the transaction is a mere bailment. There is a vital distinction between the two cases here supposed, and the failure to recognize it has apparently been an important factor in leading some of the courts to conclusions which, it is respectfully submitted, are unsound. In Griffin v. Russell, supra, it was said that the word “business” is commonly employed in connection with an occupation for livelihood or profit, but is not limited to such pur
In Van Blaricom v. Dodgson, supra, the Court of Appeals of New York, speaking against the doctrine, said: “We have never heard it argued that a man who kept for family use a horse or wagon or boat or set of golf-sticks had so embarked upon the occupation and business of furnishing pleasure to the members of his family that if sometime he permitted one of them to use one of those articles for his personal enjoyment, the latter was engaged in carrying out, not his own purposes, but, as agent, the business of his father.” In Smith v. Callahan, supra, the same view was presented in different language as follows: “And yet, we venture to assert, courts which apply the logic to the case of an automobile would hesitate long before applying it to the case of a baseball-bat, for instance, supplied by a father for the recreation of his boys.” In Watkins v. Clark, supra, it was said: “The development of the law on this subject has been attended by a rather slow process of clarification. When- the automobile was new and strange, and was regarded with some wonder and considerable fear, there was a tendency to look upon it as a dangerous thing, fraught with such possibility for harm that the owner should always be held responsible for its use. When it commenced to take the place of the family horse, this view had to be abandoned. The notion, however, of general liability on the part
Replying to the argument advanced by the New York Court of Appeals in Van Blaricom v. Dodgson, 220 N. Y. 111 (115 N. E. 443, L. R. A. 1917F, 363), the Supreme Court of Tennessee, in King v. Smythe, supra, said: “It seems to us that the foregoing reasoning is more concerned with what the learned court considered pure logic than with the practical administration of the law. If a father purchases an automobile for the pleasure and entertainment of his family, and, as Dr. Smythe did, gives his adult son, who is a member of his family, permission to use it for pleasure, except when needed by the father, it would seem perfectly clear that the son is in the furtherance of this purpose of the father while driving the car for his own. pleasure. It is immaterial whether this purpose of the- father be called his business or not. The law of agency is not confined to business transactions. It is true that an automobile is not a dangerous instrumentality, so as to make the owner liable, as in the case of a wild animal loose on the streets; but, as a matter of practical justice to those who are injured, we can not close our eyes to the fact that an automobile possesses excessive weight, that it is capable of running at a rapid rate of speed, and, when moving rapidly upon the streets of a populous city, it is dangerous to life and limb and must be operated with care. If an instrumentality of this kind is placed in the hands of his family by a father, for the family’s pleasure, comfort, and entertainment, the dictates
In holding the owner liable in such case the courts do not invade the province of the legislature, but merely apply an established principle of the common law to new conditions, recognizing that the true law is not to be found in letter and form, but that spirit, substance, and growth must be considered. While we may not approve everything said in the preceding quotation, it clearly illustrates the life and force of the common law, and its adaptability to modern problems; and such is manifestly the real basis of that decision, without denominate terms to that effect. “It has been said so often as to have become axiomatic
Dissenting Opinion
dissenting. The case of Griffin v. Russell, 144 Ga. 275 (supra), dealt with the question of the liability of a mother, the owner of an automobile, for the tort of her minor son. That case is not a binding precedent in the present case, for several reasons. In the present case the tort was committed by an adult son. Neither he nor his father was dependent upon the other. The son resided in the home of his father as a guest upon the same principle that shelter is always tendered by a father to his child of whatever age. Only four Justices consented to the principle ruled in the Griffin case, cited as authority in the majority opinion in the present case. One Justice was absent, and Presiding Justice Evans filed a special concurrence based upon the ground that the court was dealing merely with the sufficiency of the petition to withstand a general demurrer. Justice Evans said: “I specially concur in the judgment, because of the allegations of the petition that the defendant’s minor son drove the automobile as her chauffeur and with her consent on the particular occasion which resulted in the plaintiff’s injury. A mother may engage her son to be a chauffeur or servant, and I construe the allegation to expressly charge that the son was acting as the servant of the mother in driving the machine. But I dissent from the proposition, which finds recognition in the opinion, that a parent who owns an automobile provided for family use and driven at will by members thereof is liable on the doctrine of respondeat superior for the negligence of a member thereof while driving the automobile filled with his own associates, and whose .entertainment is in no way connected with the use for which the automobile was intended.” It should be here noted that the two cases, mentioned in the majority opinion, in which this court denied petitions for the writ of certiorari dealt with a tort by a minor, and not by an adult son. In the majority opinion, in the same connection, it is urged that the doctrine of stare decisis should have weight in the present decision. The reference is to
I am aware that there are authorities • which lay down the proposition that when a father owns an automobile and permits the use of it to members of his family for their pleasure and convenience, such use is in law carrying on the business of the father; but I can not accept that theory. The keeping of an automobile by a father or the head of a family for'the pleasure of his family is not carrying on a business. To make it the business of the father, the automobile must be used in some way for the benefit or profit of the father. To use it for the benefit and pleasure of the child, disconnected from any purpose or interest of the father, can not be a business of the father. In Stanford v. Smith, 173 Ga. 165 (supra), in which was involved the question whether a father, who had sent his son to school, was liable for damages caused another child by the negligence of his own child in carelessly and negligently throwing acid into or at a sink in the room where he was working under direction of the teacher, thereby throwing some of it into the face of such other pupil and injuring him, the court held, in the first headnote, that “Every person shall be liable for torts committed by his child by his command or in the prosecution and within the scope of his business,
Among the cases where it has been held that the father is not liable is that of Van Blaricom v. Dodgson, 220 N. Y. 111 (115 N. E. 443, L. R. A. 1917F, 363). The headnote is as follows: "One owning an automobile for the pleasure of his family is not liable for injury negligently caused by his adult son, who is a capable driver, when, with the owner’s permission, he is using the car for his own purpose, on the theory that in so doing he is really carrying out the business of the owner of furnishing such pleasure.” Chief Justice Hiscock argues the question, in part, as follows: "It seems to us that such a theory [that of liability] is more illusory than substantial, and that it would be far
In Smith v. Callahan, 34 Del. 129 (144 Atl. 46, 64 A. L. R. 830), it was said: “But, after all, can it be said that when a father becomes an owner of an automobile and allows the members of his family to use it, they, when they are out riding for their own convenience and pleasure and often without even his knowledge, can be said to be transacting his business? . . That the pleasure, comfort, and convenience of the members of a man’s household are matters of concern to him can not, of course, be denied. This concern is not alone collective in its operation. It is individual and personal, and applies as well to each of the family members as to the collective group. . . Now if one member of the family is transacting the business of the family head when he is serving his own individual purposes by using the instrumentality of an automobile supplied by a father for the family’s entertainment, why should he not be similarly transacting the father’s business if he used for his own entertainment or recreation any other instrumentality supplied by the father for that purpose? . . We can see no escape from this conclusion. And yet, we venture to assert, courts which apply the logic to the case of an automobile would hesitate long before applying it to the case of a baseball-bat, for instance, supplied by a father for the recreation of his boys. Imagination would run on indefinitely and suggest other instrumentalities supplied by fathers and heads of families for the use of all or a part of the members of his household, but which courts would be most reluctant to say were being employed in the father’s business when being used for the purposes they were intended to serve. The word ‘business’ is a word of varied meaning. . . In so far as the comfort, pleasure, and convenience of a man’s family are matters of concern and interest to him, it is not improper to say that it is his business to promote them. This use of the word, however, is far removed from the
In Watkins v. Clark, 103 Kan. 629 (176 Pac. 131), it was said: “The purchase of an automobile by the defendant for the use of his family, including the daughter, operated as a gift to them of the right to use it. When using it to accomplish his purpose, whether business or pleasure, they represent him, but when they exercise their privilege and use it to accomplish their own distinct purposes, whether business or pleasure, they act for themselves, and are alone responsible for their negligent conduct. The fact that the automobile was purchased for use by the owner’s family did not make him generally responsible for the subsequent operation, and because the car was subject to appropriation by the members of his family for their own use, there is no presumption that any particular trip- was made in his behalf. The use made of the car on any particular occasion is a question of fact, to be determined by evidence showing the fact, and in this instance
In King v. Smythe, 140 Tenn. 217 (204 S. W. 296, L. R. A. 1918F, 293), the family-purpose doctrine was applied, and the reasoning in Van Blaricom v. Dodgson, supra, was criticized as being more concerned with what the court considered as pure logic than with the practical administration of the law; and it was stated that “If owners of automobiles are made to understand •that they will be held liable for injury to person and property occasioned by their negligent operation by infants or others who are financially irresponsible, they will doubtless exercise a greater degree of care in selecting those who are permitted to go upon the public streets'with such dangerous instrumentalities. An automobile can not be compared with golf sticks and other small
As heretofore mentioned in this dissent, differences in the views of the various jurisdictions might be illustrated at great length, and it would serve no useful purpose to offset one against the other. .What I do wish to emphasize, however, is that the doctrine of respondeat superior is not be be measured by the relatively dangerous nature of different instrumentalities, but must be applied and given effect as it is under the common law until a change is made in the law by legislative enactment. It is not to be strained by judicial construction merely because an automobile, if negligently used, is more capable of causing damage than some other instrumentality. Moreover, “An automobile is not classified with dangerous instrumentalities, such as dynamite, gunpowder, ferocious animals, and the like, so as to 'make the owner liable for injury occurring from the running of the automobile, on the same basis- that an owner of such an instrumentality would be liable for an injury occasioned by it.” Fielder v. Davison, 139 Ga. 509 (77 S. E. 618). It is not, in my opinion, within the province of this court, under the doctrine of respondeat superior, to hold an owner liable under the circumstances of the present case, even though it be thought desirable to hold him responsible on the theory that it is inherently more dangerous than a “boat” or a “golf stick.” Before liability can-attach, it must be held that the son was the servant or' the agent of the father in the enterprise. Even in Tennessee, where the “family-purpose” doc-' trine was applied, as is shown in the majority opinion of this court, it was.held in Raines v. Mercer, 165 Tenn. 415 (55 S. W. 2d, 263), that “The doctrine of respondeat superior rests upon the doctrine that the wrong of the agent is the act of the employer.” It was further stated that “The conclusion in King v. Smythe, 140 Tenn. 217 (204 S. W. 296, L. R. A. 1918F, 293), which adopted the family-purpose doctrine, rested upon the doctrine of agency.” '(Italics mine.) I can not agree that the son
