Chester v. Evans

• Decision Date: 17 January 1967
• Docket Number: No. 1,No. 42318,42318,1
• Citation: 115 Ga.App. 46,153 S.E.2d 583
• Parties: Howard CHESTER v. Roy EVANS, by Next Friend et al
• Court: Georgia Court of Appeals

Page 583

153 S.E.2d 583

115 Ga.App. 46

Howard CHESTER v. Roy EVANS, by Next Friend et al.

No. 42318.

Court of Appeals of Georgia, Division No. 1.

Jan. 17, 1967.

Syllabus by the Court

The trial judge erred in overruling the oral motion to dismiss the petition.

Greene, Neely, Buckley & DeRieux, Harry L. Greene, James A. Eichelberger, Atlanta, Wallace, Wallace & Driebe, Jonesboro, for appellant.

David H. Fink, Thomas Carter, Atlanta, for appellees.

PANNELL, Judge.

This case is before this court on an appeal from the overruling of an oral motion to dismiss a petition as to the defendant father in an action against the father and his thirteen year old son for injuries sustained by a passenger in an automobile owned by the father and operated by the son. The time of the injury was December 28, 1964. The petition alleged substantially the following: that on occasions prior to December 28, 1964, the defendant, Howard Chester, had instructed his son, Herbert Chester, in the use and operation of the said 1964 Dodge and repeatedly permitted the said Herbert Chester to sit in and play in the vehicle when it was parked, when no adults were present, and when he had reason to know that the said Herbert Chester was operating the controls of said automobile; that the defendant, Howard Chester, kept the aforesaid automobile in a garage at the rear of the family residence at No. 5146 Highway 42, Ellenwood, when said automobile was not in use by himself or other members of his family; that the aforesaid garage has no door and was not locked or otherwise secured on the evening of December 27, 1964, when the defendant, Howard Chester, placed said car in the garage for the evening; that the defendant left the keys to the said 1964 Dodge Sedan in the ashtray of the said vehicle on the evening of December 27, as was his custom and habit and knowing said custom and habit was well known to his minor son, the defendant, Herbert Chester; that on or about 1:00 a.m., in the morning of December 28, 1964, the defendant, Herbert Chester, invited the plaintiff to come with him for a ride in the aforesaid 1964 Dodge Sedan; that the defendant was thirteen (13) years of age at the aforesaid day and date, had no driver's license, was not thoroughly versed in the operation of said 1964 Dodge or any other motor vehicle, lacked adequate training, experience and mature judgment in the operation of a motor vehicle, and was an incompetent and unqualified driver by reason of inadequate training, experience and lack of mature judgment, as evidenced by facts set out hereinbefore and hereafter in this petition; that the defendant, Howard Chester, knew his son, Herbert Chester, was, on or before December 28, 1964, unqualified to operate a motor vehicle on the streets and highways of Georgia, and would not be entitled or so qualified for a period of more than two (2) years, but said Howard Chester instructed, aided and encouraged his said minor child in the operation of automobiles and trucks belonging to the said Howard Chester, allowing said minor child to operate motor vehicles on the public highways and streets of the State of Georgia, and instructed said minor child in the use and operation of cars and trucks used in the business of said Howard Chester; that the defendant, Howard Chester, knew of Herbert Chester's intense interest in operating the said automobile and that the said Herbert Chester had on many occasions best known to the defendants, begged and pleaded to be allowed to operate and/or aid in the operation of said 1964 Dodge and other vehicles belonging to the said Howard Chester; that the defendant, Howard Chester, habitually and continuously left the aforesaid 1964 Dodge and other vehicles belonging to the said Howard Chester in the garage behind the family residence with the keys therein, with knowledge that his son, Herbert Chester, knew that said keys were located in the automobile; that in spite of the facts as aforesaid and knowledge of his son's desires and propensities as aforesaid, the defendant, Howard Chester, persisted in leaving his said 1964 Dodge Sedan unattended in an unlocked garage with the keys accessible to his minor son until the evening of December 28, 1964, when his son, Herbert Chester, went to the said car, drove it, wrecked it, and thereby caused the severe and permanent injuries to the plaintiff as aforesaid; that the defendant, Howard Chester, failed to exercise ordinary care in the use and securing of his automobile as aforesaid, which negligent acts directly resulted in the aforesaid injuries to the plaintiff; that a modern, highpowered automobile such as a 1964 Dodge Sedan is a dangerous instrumentality when operated by a thirteen year old child, and the defendant, Howard Chester, was negligent in encouraging said child in the use and operation of said automobile and in failing to secure said vehicle properly after so encouraging and demonstrating its use and operation to his thirteen-year-old son, and having actual knowledge and notice of his son's intense interest and desire to operate said vehicle; that plaintiff was a house guest of the defendants at the time of the aforesaid accident, having been invited by the defendants to remain overnight at their home on the evenings of December 27 and December 28; that the negligence of the defendant, Howard Chester, consisted of the following specific acts and omissions among others: (1) Encouraging, aiding and instructing Herbert Chester in the use and operation of cars and trucks as aforesaid when said child was as a matter of law and fact unqualified to operate the aforementioned 1964 Dodge or any other car or truck on the streets and highways of the state; (2) Leaving the aforesaid 1964 Dodge sedan in an unlocked and unsecured garage accessible to his thirteen-year-old son; (3) Habitually leaving the keys to said car in the unattended car, knowing that said thirteen-year-old son knew where said keys were located; (4) Persisting in said above negligent acts when he knew of his son's intense interest in and desire to drive said motor vehicle and many previous requests to drive said car.

The alleged liability here is bottomed upon the actions of the father in teaching the child to drive the automobile and creating within the child an intense desire to drive the automobile and thereafter, as had been his custom, leaving the car in an unlocked garage with the keys in the ashtray with knowledge that the child was extremely desirous of driving the car and with knowledge that the child knew where the keys were kept. There is no allegation that the child had a propensity for disobeying the father or of satisfying his desires without permission; on the contrary, it can be fairly inferred from the allegations of the petition (Hillhouse v. C. W. Matthews Contracting Co., 112 Ga.App. 73, 74, 143 S.E.2d 686) that the child over a period of time, and after having frequent requests to drive the car refused, was obedient to the father, thus giving the father no cause to anticipate...