Cohen v. Whiteman

• Decision Date: 27 May 1947
• Docket Number: 31578.
• Citation: 43 S.E.2d 184,75 Ga.App. 286
• Parties: COHEN v. WHITEMAN et al.
• Court: Georgia Court of Appeals

43 S.E.2d 184

75 Ga.App. 286

COHEN v. WHITEMAN et al.

No. 31578.

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

May 27, 1947

Rehearing Denied June 18, 1947.

Syllabus by the Court

A father who keeps and maintains an automobile for the use comfort, pleasure and convenience of his family, including a minor son, is responsible for injuries resulting from negligence of a third person whom the son permits to drive, where the son remains in the automobile and retains control, authority and direction over it, and where the automobile is still being used in furtherance of the purposes of a family car.

FELTON, J., dissenting.

Mrs. Anne Cohen sued Frank Whiteman, individually, and J. B. Upchurch, doing business as J. B. Upchurch Transfer Company, and Virginia Surety Company as the insurer of the transfer company. The suit was for damages for the death of plaintiff's son in a collision between an automobile owned by Whiteman and in the possession of his minor son, Arnold Whiteman, and a truck of the transfer company. The plaintiff alleged that her son, Alvin Cohen, was riding as an invited guest of Arnold Whiteman in the automobile owned by his father and kept and maintained by the father as a family purpose car; that another person, Gerald Fishman, was also riding in the automobile; that the driver of the said car was guilty of gross negligence in driving at a speed in excess of 70 miles per hour and in colliding with the truck of the transfer company. Paragraph 13 of the plaintiff's original petition was as follows: 'Petitioner shows that her son, said Alvin Cohen, was not driving said automobile at any time on the date aforesaid, and while the said Arnold Whiteman started operating same towards Athens, as aforesaid, petitioner avers that at the time and place of the accident, the driver of said Buick automobile, owned by the said Frank Whiteman, for the purpose aforesaid, is unknown to petitioner but is well known to the defendant, Frank, Whiteman.' The defendant Whiteman demurred generally and specially to the petition, the grounds of the general demurrer being that no cause of action was alleged against Whiteman, and that the well-pleaded allegations of the petition showed that no person with authority from Frank Whiteman to do so was operating the automobile at the time of the collision. The special demurrer was directed to paragraph 13 of the petition and alleged that it did not show that the automobile in question was being operated by an agent or servant of the defendant at the time of the accident, and did not show that the defendant was responsible for the operation of said automobile at said time, and did not show that any agent or servant of the defendant was driving his automobile with his knowledge, permission or consent, or in the course of defendant's business, at the time of the accident.

The trial court sustained both the general and special demurrers of the defendant Whiteman but 'with the right on part of plaintiff, within 20 days from this date, to amend to meet the grounds of said demurrer, and in the absence of amendment the within suit will stand dismissed as to defendant, Frank Whiteman.' Within the time provided in the order the plaintiff amended by deleting paragraph 13 of her original petition and inserting in lieu thereof the following: 'Petitioner shows that her son, the said Alvin Cohen, was not driving said automobile at any time on the date aforesaid, and while the said Arnold Whiteman started operating the same towards Athens, Georgia, as aforesaid, petitioner avers that when they reached Monroe, Georgia, the said Arnold Whiteman having the control, authority and direction of the said automobile directed and permitted the said Gerald Fishman to take over the wheel and to continue to drive same towards Athens, Georgia. That defendant's son, the said Arnold Whiteman, remained in the automobile and although not personally operating it, had not relinquished control over it and when the said Gerald Fishman began driving said automobile, it was still being used in furtherance of the purpose as set out in the petition.' The defendant Whiteman renewed his demurrers, general and special, to the petition as a whole and to paragraph 13 thereof, on the same grounds contained in the original demurrers. The trial court sustained the renewed demurrers and dismissed the action as to the defendant Whiteman. Exceptions to that ruling have brought the case to this court.

Smith, Partridge, Field & Doremus and Herbert A. Ringel, all of Atlanta, for plaintiff in error.

Neely, Marshall & Greene and Powell, Goldstein, Frazer & Murphy, all of Atlanta, for defendants in error.

PARKER Judge.

The head of a family who keeps and maintains an automobile for the use, comfort, pleasure and convenience of the family is liable for an injury resulting from the negligence of a minor son, a member of the family, while operating the automobile with the knowledge and consent of the owner, for the comfort or pleasure of the family, and thus in pursuance of the purpose for which it was kept and maintained by the parent. This is a fair statement of the rule called variously 'family-purpose doctrine', 'family-service rule', 'family-automobile doctrine', and 'family-car rule', as recognized and applied in the leading case of Griffin v. Russell, 144 Ga. 275, 87 S.E. 10, L.R.A. 1916F, 216, Ann.Cas. 1917D, 994. The doctrine of the family car has been extended or applied to liability for damages caused by an adult son or daughter living with the parent as a member of the family, Kennedy v. Manis, 46 Ga.App. 808, 169 S.E. 319; Hubert v. Harpe, 52 Ga.App. 262, 183 S.E. 98, and to a married woman owning an automobile as her separate property, which she permitted different members of the family to use for their comfort and pleasure, although she was not the head of the family, her husband living with her and owning an automobile which was used for family pleasure and comfort, Ficklen v. Heichelheim, 49 Ga.App. 777, 176 S.E. 540, and to the liability of a mother for the negligence of her minor son, in driving her car with her consent although he departed from the route she directed, Evans v. Caldwell, 52 Ga.App. 475, 184 S.E. 440, and to an unmarried man who was the head of a family consisting of himself, a widowed mother and two sisters, one of whom was unmarried, for the negligence of the unmarried sister in operating the automobile maintained by the brother. Levy v. Rubin, 181 Ga. 187, 182 S.E. 176. The rule has been restricted so as not to apply to injuries inflicted by a brother-in-law, Rape v. Barker, 25 Ga.App. 362, 103 S.E. 171, nor to injuries caused by a son-in-law, Bryant v. Keen, 43 Ga.App. 251, 158 S.E. 445, nor by a grandson, Mitchell v. Mullen, 45 Ga.App. 285, 164 S.E. 278, nor by a nephew of the owner in the absence of testimony that he was a member of the owner's family, Samples v. Shaw, 47 Ga.App. 337, 170 S.E. 389, nor to injuries caused by a stepdaughter where she did not live with the stepfather, the owner of the car, but lived with her own father, Wolfson v. Rainey, 51 Ga.App. 493, 180 S.E. 913.

Counsel for the defendant Whiteman contend that the amendment of the plaintiff did not meet the grounds of the demurrers as originally filed, and that in the absence of exceptions the ruling on the first demurrers became the law of the case. This is but another way of saying that the petition as amended did not allege a cause of action. If it did set out a cause of action the contention of the defendant as to this point of practice or procedure is without merit. The order sustaining the original demurrers was conditional and not an absolute and final judgment. It gave the plaintiff twenty days in which to amend to meet the grounds of the demurrers, and showed on its face that it was not intended to be final until and unless the plaintiff failed to amend. The plaintiff amended within the time provided in the order, and in a manner that was sufficient to meet the demurrers, and it was not necessary or proper to except to that order. See Olds Motor Works v. Olds Oakland Co., 140 Ga. 400, 78 S.E. 902, and Peoples Loan Co. v. Allen, 198 Ga. 516, 518, 32 S.E.2d 175.

In the first instance the plaintiff alleged that she did not know who was driving the defendant's automobile at the time of the accident, but that the defendant did know. In response to the demurrers she alleged that Gerald Fishman was directed and permitted by Arnold Whiteman to take over the wheel and drive the car before the collision occurred, but that Arnold Whiteman, the defendant's son, still had 'control, authority and direction over the said automobile,' and 'remained in the automobile, and although not personally operating it had not relinquished control over it,' and 'it was still being used in furtherance of the purpose as set out in the petition,' that is, as a family purpose car. While liability under the 'family purpose doctrine' is not founded altogether on the existence of a family relationship, but is predicated also on the principles of the law of agency, or of master and servant, it is well settled that when the head of a family makes it his business to entertain or furnish pleasure to members of his family, a liability arises under the law of principal and agent and of master and servant, and the member of the family using the automobile for the purposes for which it is kept and maintained by the head of the family becomes in legal contemplation the agent or servant of the owner. It has been said that 'no hard and fast rule can be laid down to determine what is the 'business' or 'scope of employment' of a parent as applied to members of his family.' Kalil v. Spivey, 70 Ga.App. 84, 91, 27 S.E.2d 475, 479. After citing a number of cases...