Corley v. Lewless

• Decision Date: 17 June 1971
• Docket Number: Nos. 26477,26478,s. 26477
• Citation: 182 S.E.2d 766,227 Ga. 745
• Parties: Edward A. CORLEY v. Clark LEWLESS. Doris BRADY v. Clark LEWLESS.
• Court: Georgia Supreme Court

Page 766

182 S.E.2d 766

227 Ga. 745

Edward A. CORLEY v. Clark LEWLESS.

Doris BRADY v. Clark LEWLESS.

Nos. 26477, 26478.

Supreme Court of Georgia.

June 17, 1971.

Syllabus by the Court

The Act of 1966 (Ga.L.1966, p. 445; Code Ann. § 105-113) violates the due process clause of the State Constitution and the Fourteenth Amendment of the Federal Constitution.

Jay M. Sawilowsky, Benjamin E. Pierce, Jr., Augusta, for appellants.

George B. Rushing, Allgood & Childs, Thomas F. Allgood, Augusta, for appellee.

ALMAND, Chief Justice.

This appeal is from a judgment of the Superior Court of Richmond County overruling motions by codefendants for summary judgment. The suit, which was for damages, was brought by a minor, ten-year-old Clark Lewless, through his father as next friend. Named as defendants were another minor, twelve-year-old Bruce Brady, his mother, Mrs. Doris Brady, and his uncle, Edward Corley. Mrs. Brady was appointed guardian ad litem for Bruce for the purpose of defending him in the suit.

The facts are that on February 2, 1970, Bruce Brady, twelve years old, was sent by his mother to a shopping center for the purpose of getting a haircut. He and a friend, also a minor, proceeded on their bicycles to the shopping center where they found the barber shop closed. They began riding their bicycles in the shopping center parking lot near one of the shops, which was operated by Mrs. Lewless, the mother of the minor plaintiff. Mrs. Lewless testified on deposition that she was fearful one of the boys might ride into a window, so she instructed the plaintiff to tell them to stop riding in the parking lot. What was said is disputed, but Bruce and his friend exchanged words with four younger boys, including the plaintiff, then chased them from the parking lot to the back yard of one of the younger boys. A fight ensued in which stones, cans, sticks and other objects were thrown. There is a conflict as to whether the plaintiff participated in the fight or was a spectator. In any event, the plaintiff was struck in the forehead by a piece of brick or stone. Bruce Brady admitted on deposition that he threw a brick or stone but said that it was thrown at 'no one is particular.' As a result of the injury the plaintiff was hospitalized, underwent surgery, and alleges that additional surgery will be required to repair a defect in his skull. At the time of the injury Bruce Brady resided with his mother in the home of her sister and brother-in-law, Edward Corley. Mrs. Brady at the time was separated and subsequently was divorced from her husband. She had been granted custody of Bruce and received monthly child support payments from her husband. She and the Corleys testified on deposition that she was residing with them temporarily because she had no other place to go after her separation. , they agreed that she and Bruce would move elsewhere when she completed nurse's training and found employment. Mr. Corley, a construction worker, was on a job in New York at the time of the injury.

The allegations were that Bruce was under the control and supervision of his mother and also that of his uncle (Corley), 'who is the head of the household in which he resides and stands in loco parentis as to said Bruce Brady.' He alleged that his injuries were caused by 'acts of wilful and wanton negligence' on the part of Bruce, and by 'the concurring negligence of his mother and uncle * * * who failed to exercise proper supervision and control of his activities and who failed to impose the necessary restraints and disciplines in his activities so as to avoid' the injury to the plaintiff.

The petition was so drawn that it falls within the provisions of Code Ann. § 105-113 (Ga.L.1966, p. 424) which makes a parent or other person in loco parentis liable for the wilful torts of his minor children. The statute reads as follows: 'Every parent or other person in loco parentis having the custody and control over a minor child or children under the age of 17 shall be liable for the wilful and wanton acts of said minor child or children resulting in death, injury or damage to the person or property, or both, of another. This section shall be cumulative and shall not be restrictive of any remedies now available to any person, firm or corporation for injuries or damages arising out of the acts, torts or negligence of a minor child under the 'family-purpose car doctrine' or any statutes now in force and effect in the State of Georgia.' The plaintiff's petition was so drawn as to allege on an alternative common law ground, recovery by reason of negligence on the part of Bruce Brady.

The defendants filed motions for summary judgment on the following grounds: (1) that the statute violates the due process clauses of the State and Federal Constitutions and the equal protection clause of the Federal Constitution because it would authorize recovery without liability and compel payment without fault; (2) that they had not been negligent in any of the ways alleged and had not been negligent in any way whatsoever; and (3) that they could not be held responsible and liable as principals because Bruce, as agent, is immune to tort liability by virtue of his age. Mr. Corley urged the separate and additional ground that he did not stand in loco parentis as to Bruce and was not a person in loco parentis having custody and control over Bruce. The motions for summary judgment were overruled on each and every ground and the ruling was certified for direct appeal.

1. 'Under the common law, traditionally, parents were not liable in damages for the consequences of the torts of their minor children solely because of the existence of the parent-child relationship. Unless the parent participated in the minor's tort, or through negligence caused or permitted the tort to occur, courts often absolved parents from liability, unless some other relationship, such as that of principal and agent, or master and servant, existed between parent and child.' 8 A.L.R.3d 614, Parent and Child, § 1(a). The decisions of this court and of the Court of Appeals have been in accord with these common law principles. The rule enunciated in Georgia is that the liability of a parent for an injury committed by his child is governed by the ordinary principles of liability of a principal for the acts of his agent, or a master for his servant. Code § 105-108. Chastain v. Johns, 120 Ga. 977, 48 S.E. 343; Stanford v. Smith, 173 Ga. 165-168, 159 S.E. 666; Hulsey v. Hightower, 44 Ga.App. 455, 458, 161 S.E. 664. Recovery has been permitted where there was some parental negligence in furnishing or permitting a child access to an instrumentality with which the child likely would injure a third party. Davis v. Gavalas, 37 Ga.App. 242, 139 S.E. 577 (velocipede); Faith v. Massengill, 104 Ga.App. 348, 121 S.E.2d 657 (BB gun); Herrin v. Lamar, 106 Ga.App. 918 126 S.E.2d 454 (rotary lawnmower); Glean v. Smith, 116 Ga.App. 111, 156 S.E.2d 507 (pistol); McBerry v. Ivie, 116 Ga.App. 808, 159 S.E.2d 108 (shotgun). In cases of this sort the question is whether the facts of the case impose upon the parent a duty to anticipate injury to another through the child's use of the instrumentality. Sagnibene v. State, 117 Ga.App. 239, 160 S.E.2d 274; Chester v. Evans, 115 Ga.App. 46, 49, 153 S.E.2d 583. In all of the above cited cases, causes of action against the parents of minor tortfeasors are rooted in the common law and are predicated on something more than the mere parent-child relationship. These common law rules remain effective except insofar as they may be modified by Code Ann. § 105-113, Sagnibene v. State, supra. The effect of the statute, if it be constitutional, is to establish an additional or alternative ground for finding parental liability. So, even if no cause of action would lie against the parents under common law, a suit nevertheless might be brought under Code Ann. § 105-113, provided the parent or other person in loco parentis had 'custody and control' over the child, and provided further that the child's act was 'wilful and wanton.'

This court has not ruled previously on the constitutionality of Code Ann. § 105-113. Before doing so, it will be helpful to review...