Blount v. Sutton, 41938

• Decision Date: 18 November 1966
• Docket Number: Nos. 1,No. 41938,2,3,41938,s. 1
• Citation: 152 S.E.2d 777,114 Ga.App. 767
• Parties: Herbert A. BLOUNT v. Virginia SUTTON et al
• Court: Georgia Court of Appeals

Page 777

152 S.E.2d 777

114 Ga.App. 767

Herbert A. BLOUNT v. Virginia SUTTON et al.

No. 41938.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 18, 1966.

Rehearing Denied Dec. 9, 1966.

Syllabus by the Court

Where an owner is present in an automobile being driven by another, an inference may properly be drawn by the jury that the owner was in control of the operation of the automobile. However, this inference only applies where nothing else appears. When uncontradicted and unimpeached evidence is produced as to the real facts, the inference disappears, and does not create a conflict in the evidence so as to require its submission to a jury.

The plaintiff brought an action for damages against the owner and the driver of an automobile which collided with the plaintiff's automobile, alleging that the driver was negligent in violating a stop sign at an intersection and that he was operating the automobile at the specific instance and request, under the express direction, and for the use and purpose of the owner, who was actually seated in the automobile with the driver at the time of the collision. The owner filed a motion for summary judgment based upon her affidavit and the affidavit of the driver. The driver's affidavit stated substantially that he had borrowed the automobile from the owner between '7 and 8 o'clock' on the day before the collision for the purpose of going to work the next morning; that, when he got off work between 2:30 and 3 o'clock p.m., he decided to go by and pick up the owner at the school where she taught, although there had been no such arrangement between them and he was not supposed to return the automobile to her until 5 to 6 p.m.; that at the time of the 'accident' he had picked her up, was en route to his house, had not returned the automobile to her and had not intended to do so until reaching his house; that at no time after he picked her up at the school did she exercise any control over the operation of the automobile, tell him how to drive it or suggest any particular route. The owner's affidavit stated substantially that the driver had borrowed her automobile the day before the collision in order to go to work early the next morning, with the understanding that he would return it between 5 and 6 p.m. the next day; that when she got out of school about 3:15 p.m., although she had already made other arrangements for a ride home, she decided to ride with the driver when she saw him parked in front of the school; that at no time did she exercise any control over the operation of the automobile; that the driver had told her that he would return it when he got home and at the time of the 'accident' they had not reached his house and she hadn't taken it back. In opposition to the motion for summary judgment, the plaintiff filed depositions of both defendants, which, in addition to the facts shown in the affidavits, revealed the following additional evidence: That the defendants were step-brother and sister; that the driver customarily used the owner's automobile and they frequently rode together with him driving; that the driver was proceeding directly to his house at the time of the collision.

The court granted the motion for summary judgment, dismissing defendant owner as a party defendant, and from this judgment the plaintiff appeals.

Joseph B. Bergen, J. Converse Bright, Savannah, for appellant.

Jack H. Usher, Savannah, for appellees.

HALL, Judge.

Mere ownership of an automobile does not render the owner liable for a collision occurring when it is driven by another person. Graham v. Cleveland, 58 Ga.App. 810, 200 S.E. 184. Nor is the fact that the operation of an automobile is with the consent and permission of the owner sufficient to establish that the driver is the agent or servant of the owner. Durden v. Maddox, 73 Ga.App. 491, 493, 37 S.E.2d 219.

We are aware that where an owner is present in an automobile being driven by another an inference may properly be drawn by the jury that the owner was in control of the operation of the automobile. Trawick v. Chambliss, 42 Ga.App. 333(3), 156 S.E. 268. However, this inference only applies 'where nothing else appears.' Yellow Cab Co. v. Nelson, 35 Ga.App. 694(2), 134 S.E. 822. In other words, 'There is a presumption, in the absence of any evidence to the contrary, that an owner present in his car has power to control it.' Beam v. Pittsburg Rys. Co., 366 Pa. 360, 77 A.2d 634, 640; 8 Am.Jur.2d 124, § 572; Pollard v. Grimes, 202 Okl. 118, 210 P.2d 778; Nicosia v. Marangi, 13 N.J.Super., 550, 81 A.2d 20. 'The general theory of these cases is that the presumption or the inference is not evidence, but serves in the place of evidence until evidence to the contrary is adduced. It is created merely for purposes of administrative convenience, to be resorted to in the absence of evidence, to require the party most likely to have in his possession or knowledge the evidence of the real facts in issue, to produce such evidence in the first instance; that when such evidence is produced as to the real facts, there remains no warrant to keep the presumption in the case and that in such case it disappears, and does not create a conflict with the defendant's evidence so as to require its submission to the jury on the theory of conflict in the evidence; that in such event the plaintiff must introduce independent evidence to create a conflict with the evidence of the defendant to require its submission to the jury.' 5 A.L.R.2d 204. See also, Atlantic Coast Line Railroad Co. v. Drake, 21 Ga.App. 81(4), 94 S.E. 65; Central of Georgia Railway Co. v. Pitts & Espy, 16 Ga.App. 314, 85 S.E. 285.

The uncontradicted evidence of both the driver and the owner shows that at the time of the injuries the driver of the automobile was a bailee and the owner was his guest. Furthermore, the driver testified that he did not intend to return the automobile to the owner until reaching his house. While this testimony is not vital, it strengthens the case. The driver's intention, being relevant to the issue, is 'proof of a substantive fact, and admissible in this case.' Alexander v. State, 118 Ga. 26(4), 44 S.E. 851; Nichols v. Ward, 27 Ga.App. 501(2), 108 S.E. 832; Hale v. Robertson & Co., 100 Ga. 168, 27 S.E. 937; Green, the Georgia Law of Evidence § 303; 8 Wigmore on Evidence 104, § 1965; McCormick on Evidence 568, § 269.

Furthermore, 'It is a well established principle of substantive law that circumstantial evidence has no probative value in establishing a fact where such evidence is consistent with direct and unimpeached evidence showing the non-existence of such a fact.' Allgood v. Dalton Brick & Tile Corp., 81 Ga.App. 189, 194, 58 S.E.2d 522, 526; Frazier v. Georgia R. & Bkg. Co., 108 Ga. 807, 33 S.E. 996; Myers v. Phillips, 197 Ga. 536, 542, 29 S.E.2d 700.

The trial judge did not err in granting the defendant Sutton's motion for summary judgment.

Judgment affirmed.

FELTON, C.J., BELL, P.J., and JORDAN, EBERHARDT and DEEN, JJ., concur.

FRANKUM and PANNELL, JJ., dissent.

QUILLIAN, J., not participating.

PANNELL, Judge (dissenting).

1. While the simple fact, standing alone, that one of the defendants was operating the automobile of the other defendant with such owner's consent, is not sufficient to establish liability of the defendant owner for injuries to a third party occasioned by the negligence of the driver (Frankel v. Cone, 214 Ga. 733, 107 S.E.2d 819; Hines v. Bell, 104 Ga.App. 76(4), 120 S.E.2d 892; yet, where the owner is present in the automobile an inference may properly be drawn by the jury that the owner was in control of the operation of the automobile (Trawick v. Chambliss, 42 Ga.App. 333(3), 153 S.E. 268), even though control was not at the time being actually exercised by express directions.

The majority hold that this inference only applies 'where nothing else appears' citing Yellow Cab Co. v. Nelson, 35 Ga.App. 694, 134 S.E. 822. The language was taken from obiter dictum. In that case the ownership of the cab was shown, and it was driven by a person who wore a yellow band around his cap and insignia also used by another cab company. The owner was not in the cab. We quote from that opinion, with the obiter dictum emphasized: 'But the ultimate fact to be proved is one thing, while the facts evidentiary of it may be a very different thing. Proof of the latter may, without more, establish the former, thus embracing by inference that which is beyond the mathematical limits of the evidence. Failure to recognize this principle may result in placing too great a burden on the party having the affirmative in cases of this character. See, in this connection, Civil Code, 1910, § 5743; Haas & Howell v. Godby, 33 Ga.App. 218(3), 128 S.E. 897; * * *. It is the opinion of the writer that the court would have erred in giving the charge quoted above. Automobiles are usually driven by the owners or by persons in the owner's service. Occasions when this is not true are exceptions to the general rule. Furthermore, proof that it is not true will ordinarily depend upon facts which are peculiarly within the knowledge of the...