12 Ga. App. 743 | Ga. Ct. App. | 1913
A suit to recover damages for personal injuries was brought against. Mrs. M. E. Register and H. M. Sledge Jr. The petition contained two counts. In the first count it was alleged, that Mrs. Register is a widow, having the exclusive control and custody of Miss Tillie Register, her minor unmarried daughter; that Mrs. Register -is the owner of a certain automobile, and that Miss Tillie Register was riding in said automobile, having authority and command over the movements thereof, and it was being driven by H. M. Sledge Jr., when it negligently ran down and collided with and injured the plaintiff in the manner described in the petition. In the second count it was alleged that the defendant Mrs. M. E. Register was the owner of an automobile therein described, and that H. M. Sledge Jr. employed and acting as driver and chauffeur of the automobile for and on behalf of Mrs. Register, and, in such capacity, was her agent, and that while so acting as chauffeur and driver, with the said automobile he ran down and collided with the plaintiff, causing the injuries described in the petition. The defendants demurred generally and specially to the petition, and the trial judge sustained the general demurrer to the first count; so far as it related to Mrs. Register, and overruled it as to the other defendant, and also sustained several of the special grounds of the demurrer. The general demurrer and all the special grounds except two were overruled as to the second count. One of these special grounds was met by an amendment which was allowed. The paragraph of the second count to which, the special demurrer was sustained is immaterial as affecting, the cause of action set forth in the .count as a whole. The plaintiff offered to amend the first count by adding the allegation “that said automobile was kept for the comfort and pleasure of the family,
We gather from the different rulings on the demurrer that the petition was dismissed because, no cause of action being stated against Mrs. Register in the first count, and this count not being stricken from the petition to meet the order of the judge, and the demurrer as to the second count being overruled and Mrs. Register not being eliminated from the second count, a misjoinder of causes of action and of parties resulted.
We think, however, under the statute of this State and the construction given to it by the Supreme Court, relative to the liability cf parents for the torts of minor children, that a parent would not
We conclude, therefore, that even if the amendment had been 'allowed, the first count in the petition would have set forth no cause of action against Mrs. Register; for the allegations would simply show that the widowed mother had provided an automobile for the pleasure of her minor daughter, and that the tort was not actually committed by the minor child, but was committed by Sledge, the driver of the automobile, who, in so far as the first count is concerned, held no relation to the mother, but was driving the automobile under the direction and control of the minor daughter. Of course, the count was good as against Sledge, for it was his individual tort that caused the injury, and minors are liable for torts committed by them; so we think the ruling of the trial judge as to the first count was clearly correct.
Judgment affirmed, with direction.