Alterman v. Jinks, 45467

• Decision Date: 18 November 1970
• Docket Number: No. 1,No. 45467,45467,1
• Citation: 179 S.E.2d 92,122 Ga.App. 859
• Parties: Abraham ALTERMAN v. Vera M. JINKS
• Court: Georgia Court of Appeals

Page 92

179 S.E.2d 92

122 Ga.App. 859

Abraham ALTERMAN v. Vera M. JINKS.

No. 45467.

Court of Appeals of Georgia, Division No. 1.

Nov. 18, 1970.

Syllabus by the Court

The trial judge did not err in overruling the defendant's motion for summary judgment since the movant failed to establish that there were no genuine issues of material fact and that he was entitled to a judgment as a matter of law.

Vera M. Jinks filed her complaint in Fulton Superior Court, naming Abraham Alterman as defendant, and seeking to recover damages for injuries which she received in an automobile accident caused by the alleged negligence of the defendant's 15 1/2 year old son. The complaint alleged that Benjamin S. Alterman, the minor son of the defendant, on March 10, 1967 was operating a 1966 Oldsmobile owned by the defendant and provided as a 'family purpose car'; that the plaintiff was the defendant's maid and 'was instructed, directed and authorized by the defendant' to drive the vehicle to Northside High School to meet the defendant's son; that she was further instructed and directed 'to let the defendant's son, Benjamin S. Alterman, drive on the return trip from school to the home of the defendant, with the plaintiff as a passenger'; that in accordance with her instructions the plaintiff allowed the defendant's son to take control of the vehicle.

It was then alleged that while riding home from school on Northside Drive the defendant's son suddenly drove the automobile 'out of the southbound right-hand lane of said highway in which he had been driving and into the northbound lane of said highway and crashed into a vehicle traveling north in the northbound lane of said highway and caused the injuries.' It was alleged that the negligent acts of the defendant's son were the direct and proximate cause of injury to the plaintiff, the various negligent acts attributable to the defendant's son were itemized and it was further alleged that the plaintiff was riding with the defendant's son for the benefit, pleasure and convenience of the defendant and not for her own benefit; that the plaintiff did not undertake to do the aforementioned acts gratuitously. By amendment, it was alleged that the defendant was negligent in entrusting the vehicle to his son, an inexperienced driver.

The defendant took the deposition of the plaintiff on February 5, 1969, and subsequently filed his motion for summary judgment. The deposition brought out that the plaintiff had been employed by the defendant for some 17 years; that for approximately 2 years she had been furnished a 1966 Oldsmobile to go to and from her home and the defendant's house; that she had a driver's license about 2 years; that at the time of the collision defendant's son was 15 years of age and had obtained his learner's license approximately 6 or 7 months before the collision occurred; that the defendant had driven the car with the plaintiff present in it on several occasions. The plaintiff had been told when she would go to pick up the defendant's son to let him drive back; that she was instructed 'let him drive back if he wants to.' Plaintiff stated that she understood the defendant could not drive except when an adult was present in the car with him.

The plaintiff filed a motion for summary judgment on liability and in response to the defendant's motion for summary judgment. Plaintiff's motion included the following documents: the complaint and answer in the suit by the driver of the other vehicle involved in the collision in question; also included were interrogatories and answers thereto and the deposition of the defendant's son in the action brought by the driver in the other vehicle.

The motion for summary judgment came on to be heard and after hearing argument of counsel for both parties, the trial judge entered an order denying defendant's motion for summary judgment. Upon a certificate being entered, appeal was taken from that judgment.

Lokey & Bowden, Glenn Frick, Atlanta, for appellant.

Levine & Cohn, Morton P. Levine, Atlanta, for appellee.

QUILLIAN, Judge.

1. The defendant makes the following interesting assertion. He points out that the plaintiff was his servant and that his son was, under the family purpose car doctrine, also his servant. Hence, he urges the principle of law: 'An employee cannot recover from his master for injuries sustained in the master's automobile where the driver, whose negligence is alleged to have caused the injury, was a fellow servant.' Miller v. Fulton, 111 Ga.App. 849(2), 143 S.E.2d 578. See Code § 66-304; Morrison v. Lewis, 58 Ga.App. 677, 199 S.E. 782. It is true that the theory of the family purpose car doctrine is predicated on the principles relating to master and servant (Stewart v. Stephens, 225 Ga. 185, 186, 166 S.E.2d 890; Hirsh v. Andrews, 81 Ga.App. 655, 657, 59 S.E.2d 552. See Lacey v. Forehand, 27 Ga.App. 344, 108 S.E. 247), and is often referred to as a development of the doctrine of respondent superior. Doss v. Miller, 87 Ga.App. 230, 234, 73 S.E.2d 349; Johnson v. Brant, 93 Ga.App. 44, 46, 90 S.E.2d 587; Owens v. White, 103 Ga.App. 459, 460, 119 S.E.2d 581.

The fellow servant doctrine is of course an exception or departure from the respondent superior rule. Roberts v. Ethridge, 73 Ga.App. 400, 403, 36 S.E.2d 883. The fellow servant rule is a species of assumption of the risk. 'The master is not liable to one servant for injuries inflicted by a fellow servant, because the risk thereof is one of those assumed in the contract of employment.' Evans v. Josephine Mills, 119 Ga. 448(5), 46 S.E. 674. See Shields v. Yonge, 15 Ga. 349(3). Code § 66-303. Because of this fact, the cornerstone of the fellow servant rule is that the fellow employee's negligence must be the sole cause of the injury. For if the master is negligent, as in failing to comply with his so-called nondelegable duties, he may be found liable. 'In order to relieve a master from liability for an injury to one of his servants, the negligence of a fellow servant must have been the sole cause of the injury, unmixed with any negligence on the part of the master or his representative.' Southern Railway Co. v. Diseker, 13 Ga.App. 799(6), 81 S.E. 269. 'The negligence of a fellow servant does not excuse the master from liability to a coservant for an injury which would not have happened had the master performed his duty.' Muscogee Manufacturing Co. v. Cady, 22 Ga.App. 180, 183, 95 S.E. 749, 751. This is summed up in Union Cotton Mills v. Harris, 144 Ga. 716(2b), 87 S.E. 1029, which held: 'If a master is negligent in regard to his servant, and such negligence is the proximate cause of an injury to the servant, this would not relieve the master from liability, although a fellow servant of the injured person may have also been negligent, and his negligence may have contributed to the injury. If the injured person assumed the risk of the negligence of a fellow servant, he could not recover on account of the results of such negligence. But this would not exclude him from recovering damages proximately resulting from the negligence of the master, if such facts be shown.'

Thus, it is apparent that the master must be free from negligence before the application of the fellow servant doctrine comes into play. For this reason, we assume arguendo that the plaintiff and the defendant's son could be classified as fellow servants.

The plaintiff alleged: 'That the defendant herein was negligent in entrusting said vehicle to his son, an inexperienced driver.' Under the theory of negligent entrustment: 'liability is predicated not on the doctrine of respondeat superior but on a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless, and this negligence must concur, as a part of the proximate cause, with the negligent conduct of the driver on account of his incompetency and recklessness.' Saunders v. Vikers, 116 Ga.App. 733(5), 158 S.E.2d 324.

As held in Hines v. Bell, 104 Ga.App. 76, 83, 120 S.E.2d 892, 897: 'The Georgia law imposes liability on the owner for negligent acts of an incompetent one to whom he entrusts the driving of his car, other than in agency, in only three categories: (1) By reason of his age or want of experience; (2) or his physical or mental condition; (3) or his known habit of recklessness.' See Jones v. Dixie Drive It Yourself System, 97 Ga.App. 669, 673, 104 S.E.2d 497; Seaboard Coast Line R. Co. v. Zeigler, 120 Ga.App. 276, 280, 170 S.E.2d 60. Of course, negligent entrustment per se does not apply where the master-servant relation exists. NuGrape Bottling Co. v. Knott, 47 Ga.App. 539(1), 171 S.E. 151. However, the same general principles are applicable since where there is a master-servant...