Calhoun v. Eaves, 42317

• Decision Date: 08 November 1966
• Docket Number: No. 42317,No. 3,42317,3
• Citation: 152 S.E.2d 805,114 Ga.App. 756
• Parties: Bill B. CALHOUN v. Everett EAVES
• Court: Georgia Court of Appeals

Page 805

152 S.E.2d 805

114 Ga.App. 756

Bill B. CALHOUN v. Everett EAVES.

No. 42317.

Court of Appeals of Georgia, Division No. 3.

Nov. 8, 1966.

Rehearing Denied Dec. 7, 1966.

Certiorari Denied Jan. 31, 1967.

Syllabus by the Court

The trial judge did not err in granting a summary judgment for defendant, where, as here, in an action brought under the family purpose doctrine against a father for damages and injuries resulting from the negligent operation of a motor vehicle by his son, the facts conclusively show that the son, an emancipated minor in school away from home, had purchased the vehicle with his own funds, and had exclusive custody and control of the vehicle.

This is an appeal from a summary judgment for defendant in Fulton Superior Court on an action brought by Bill B. Calhoun against Everett Eaves under the family purpose doctrine to recover for property damages and personal injuries sustained as the result of an automobile collision in the city of Atlanta on November 4, 1962. The petition alleges that an automobile owned by defendant and operated by Everett Joel Eaves, his minor unemancipated son, collided with plaintiff's vehicle. Defendant's son allegedly resided with defendant in Louisiana, but was in Atlanta at that time attending Georgia Institute of Technology, and was operating the automobile with the permission of his father as a family purpose vehicle. Defendant in his answer denied that he was the owner of the automobile, and that the vehicle was being used for family purposes, and all other material allegations of the petition.

The evidence adduced on hearing of the motion for summary judgment discloses that Everett Joel Eaves, the younger of defendant's two sons, was 19 when he was killed on November 4, 1962, in the incident out of which this action arose. By order of the judge of the First Judicial District Court of Caddo Parish, Louisiana, dated February 17, 1961, Everett Joel Eaves was fully emancipated and relieved of all disabilities which attach to minors. Defendant, whose full name is Everett Eaves, had told his sons that he would not object to either of them owning an automobile while in college after completing one year with satisfactory grades, if the son purchased the car with his own money. Over a period of about five years before the incident he made gifts of shares of stock to his sons, and he also gave them money for college expenses. Each son paid his expenses and managed his affairs. On June 12, 1962, Everett Joel Eaves had completed one year of college at Georgia Institute of Technology with satisfactory grades. At this time he personally purchased the automobile involved in the collision from a firm in Shreveport, La., unaccompanied by his father or anyone else, and gave his personal check for $1,938.92 in full payment. He sold stock to obtain funds to pay for the car, but because of the delay in receiving proceeds borrowed $2,500 from his father. He repaid his father on June 20, 1962, the same day he received payment for the sale of the stock. The application to the State of Louisiana for title and registration of the vehicle, dated June 12, 1962, is in the name of Everett Joel Eaves and bears a signature purporting to be that of Everett Joel Eaves as owner. During the summer he drove the vehcile to Chicago where he attended the Chicago Institute of Technology, returned to Shreveport to reside with his parents, worked for defendant for a short period and earned $214.60, and then went to Atlanta to attend Georgia Institute of Technology as a sophomore. Defendant placed money in his son's bank account to pay his college expenses in Atlanta. The evidence further discloses that by endorsement, effective June 12, 1962, the automobile was listed on a liability insurance policy previously issued to defendant and his wife, which covered two other automobiles. Defendant did not request this coverage and who did is unknown. A representative of the automobile agency where the vehicle was purchased testified that it was customary to give the insurance firm the motor and serial number of a newly purchased vehicle, and that he possibly did so in this case. Defendant paid all premiums on the policy, for which he received invoices, and he may have required his son to reimburse him. After the collision defendant claimed and collected $1,000 as the insured under the policy to cover the burial expenses of his deceased son. Defendant and his wife obtained release of the vehicle from authorities in Atlanta as the legal heirs of Everett Joel Eaves, and defendant sold the vehicle to an Atlanta automobile dealer and listed the proceeds in the assets in the estate of Everett Joel Eaves.

Sam D. Hewlett, Jr., Florence H. Dendy, Roland Neeson, Atlanta, for appellant.

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

JORDAN, Judge.

The summary judgment statute provides that if the pleadings, depositions, and admissions on file, together with the affidavit, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, such judgment should be rendered forthwith, but that nothing in the statute shall be construed as denying any party the right to a trial by jury if there are any substantial issues of fact to be determined. Code Ann. § 110-1203. A primary purpose of this procedure is to allow a party to pierce the allegations of the pleadings, show the truth to the court, and receive judgment where there is no genuine issue of material fact, although an issue may be raised by the pleadings. Scales v. Peevy, 103 Ga.App. 42, 47, 118 S.E.2d 193. It...