Chancey v. Cobb, 38365

• Decision Date: 05 October 1960
• Docket Number: 2,Nos. 1,No. 38365,38365,s. 1
• Citation: 102 Ga.App. 636,117 S.E.2d 189
• Parties: Edwina CHANCEY v. Charles COBB, JR
• Court: Georgia Court of Appeals

Page 189

117 S.E.2d 189

102 Ga.App. 636

Edwina CHANCEY v. Charles COBB, JR.

No. 38365.

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

Oct. 5, 1960.

Rehearing Denied Oct. 26, 1960.

Syllabus by the Court.

A minor child of tender years riding at the invitation of the driver and owner of an automobile, with the express consent and acceptance of its mother, even though, on account of its tender years, incapable of itself giving consent or accepting the invitation, is a guest of the driver thereof within the rule rendering the driver liable to such guest only for gross negligence.

E. Way Highsmith, Anthony A. Alaimo, Brunswick, for plaintiff in error.

Gowen, Conyers, Fendig & Dickey, Chris Conyers, Reid W. Harris, Brunswick, for defendant in error.

CARLISLE, Judge.

The facts of this case, insofar as they are concerned with the question sought to be presented by the assignments of error are as follows: The defendant, Charles Cobb, Jr., invited the deceased Penelope Chancey, to accompany him and his wife to a watermelon cutting. The plaintiff, Mrs. Chancey, the sister of the defendant and the child's mother, consented and agreed for her daughter to accompany the defendant, though she herself did not go along. In returning from the watermelon cutting, the defendant's automobile collided with a passenger train at a crossing in the City of Brunswick, and the plaintiff's daughter was killed. The plaintiff brought suit against the railroad company and the defendant here named, subsequently disposing of her claim against the railroad company by accepting a settlement of $20,000, and giving the company in return a covenant not to sue. Thereafter the suit proceeded against Charles Cobb, Jr., and was tried upon the theory that Cobb owed the deceased the duty of exercising merely slight care, and that he would be liable only for gross negligence. The judge submitted the case to the jury on that theory, and they returned a verdict for the defendant. The plaintiff made a motion for a new trial on the general grounds and on one special ground, in which she complained of the failure of the court to instruct the jury, without request, in effect, that the defendant would be liable for failure to exercise ordinary care. The trial court overruled and denied that motion and the exception here is that judgment.

Counsel for the plaintiff in error concedes in his brief that no Georgia case has been found exactly deciding the issue here presented. However, he advances the reasoning that an infant of tender years is incapable of consenting to become a guest passenger in an automobile, and that since such an infant could not give consent it necessarily could not be required to withdraw consent during the carriage, and that the duty of the driver, therefore, toward such a passenger ought to be to exercise ordinary care for such passenger's safety. In support of this position counsel cites and relies chiefly upon the cases of Fuller v. Thrun, 109 Ind.App. 407, 31 N.E.2d 670; and, Kudrna v. Adamski, 188 Or. 396, 216 P.2d 262, 16 A.L.R.2d 1297.

If these cases are authority for anything contrary to what is here ruled, it is clear that they are decidedly against the weight of authority. However, in neither of these cases does the rule announced require a contrary result from that here reached. The great weight of authority in jurisdictions where this question has been decided is that the status of a minor child riding as a passenger in an automobile follows that of its parent or natural guardian, if such parent is also riding with it, and that such parent or natural guardian will be held to have accepted the invitation on behalf of the infant, unless the facts show otherwise. In the Fuller case, the facts showed that there was no acceptance of any invitation to become a guest passenger in the automobile of the defendant, but that the defendant took the injured child to ride in his automobile contrary to the express instructions of the parent. In the Kudrna case, the mother was accompanying the injured child, but the circumstances were such, and the decision was based on the fact, that she herself was not a guest passenger in the automobile but rather had some other status, since the automobile belonged to her husband and the driver thereof was driving it as the agent and servant of her husband and not as her host. See Welker v. Sorenson, 209 Or. 402, 306 P.2d 737.

In disposing of and answering the contentions of the plaintiff in error, this court can do no better than to quote from the exhaustive and well reasoned opinion of the Supreme Court of Iowa in the case of Horst v. Holtzen, 249 Iowa 958, 90 N.W.2d 41, 43. In the case, Justice Thompson speaking for the court said: 'There is a considerable volume of authority upon the question of a minor of tender years qualifying as a guest under the statutes which have been adopted generally in the various states. Some of them require in effect an invitation and an acceptance, as for example California and Nebraska. It is argued by the appellant here that being a guest, implies an invitation, express or implied, and an acceptance; and that a thirteen day old infant is incapable of accepting, and so cannot be a guest. Except for dicta found in a few cases, there are none which hold flatly that such a child may not under some circumstances be a guest. Other cases, relied upon by the defendant-appellee say that the acceptance may be by the parent or other person having legal custody and care of the infant. The cases cited by the plaintiff are, without exception, those in which a child was taken into an automobile, absent its natural guardians or any consent or approval from them, or, as in Hart v. Hogan, 173 Wash. 598, 24 P.2d 99, in which the accompanying parent was herself not a guest. There is, in fact, in the latter case an intimation that the child's status follows that of the parent. Likewise in Kudrna v. Adamski, 188 Or. 396, 216 P.2d 262, 16 A.L.R.2d 1297, from which the plaintiff quotes, the driver of the car was not its owner, but was operating it at the request of the father and mother of the injured infant because the father, who was the actual owner, was not able to make the trip. There is dictum which supports plaintiff's position; but the case has been distinguished and an opposite result reached in the later case of Welker v. Sorenson, 209 Or. 402, 306 P.2d 737, 738. The Oregon Supreme Court pointed out, in the later case, that in the Kudrna case the mother herself was not a guest, and that it had there said: 'We do not decide that a child of tender years cannot, under any circumstances, be a guest.' It held in the Welker case that when the child was riding with its mother, who was a guest, her children, in her custody, were also guests.

'The plaintiff relies largely upon two cases: Rocha v. Hulen, 6 Cal.App.2d 245, 44 P.2d 478, 483; and Fuller v. Thrun, 109 Ind.App. 407, 31 N.E.2d 670. It will be observed that neither of these cases was decided by a court of last resort. In neither case was the injured child accompanied by its natural guardian, nor was there any evidence of consent of such guardian to the acceptance of the ride. There is dictum in each case which says that an infant incapable of accepting an invitation to ride cannot be a guest, under the wording of the particular statute involved. The distinction is pointed out in the later case of Buckner v. Vetterick, 124 Cal.App.2d 417, 269 P.2d 67, 69. The California statute, Section 403, West's Ann.Vehicle Code, defines a guest as one who 'accepts a ride in any vehicle upon a highway without giving compensation for such ride.' 'accepts', it is urged, implies an invitation and an acceptance, and a small child, being incapable of consenting, cannot become a guest. The Buckner case, supra, points out that many important decisions, such as whether an operation shall be performed or other medical services rendered, are made constantly and necessarily for minors by their parents. To this might be added decisions as to what church, and what school, the child shall attend; where it shall live, in what amusements it may indulge, what journeys it may take, and a host of other important determinations. There seems no good reason why the natural guardian, usually the parent, could not accept an invitation to ride gratuitously in a motor vehicle, for the child. Buckner v. Vetterick so holds. We are pointed to no case in which the consent of the parent was actually given in which it was held that the child was not a guest. In this category is the recent case of Green v. Jones, 136 Colo. 512, 319 P.2d 1083, 1086. It is there flatly stated, it is true, that 'To achieve the status of 'guest' there must be an invitation, expressed or implied, and an acceptance, formal, informal, or by act or deed.' The case then goes on to say that the injured child, aged two years, could not accept an invitation and so could not be a guest. She had been left overnight with her grandmother, who on the next morning undertook to transport her in her automobile, and in so doing injured her. There is no showing whether the trip was with the consent of the child's parents. It is of course for the Colorado court to interpret the statutes of its own state; but so far as its opinion holds an invitation and acceptance are always necessary to create a 'guest' relationship, or that where the statute makes such a requirement a parent or other natural guardian may not accept for the child, we do not agree. The strong currents of authority and logic are both, we think, to the contrary.

'In addition to Welker v. Sorenson and Buckner v. Vetterick, both supra, there are many cases holding that a child of tender years may be a guest. Many of these cases say that no invitation, implied or express, or acceptance are necessary to create the guest status. The Arkansas Supreme Court has said: 'It will be observed that in defining a guest the statute makes no exception...