Dunn v. Caylor

• Decision Date: 06 September 1962
• Docket Number: No. 21728,21728
• Citation: 218 Ga. 256,127 S.E.2d 367
• Parties: Pauline DUNN et al. v. Peggy Bates CAYLOR.
• Court: Georgia Supreme Court

Page 367

127 S.E.2d 367

218 Ga. 256

Pauline DUNN et al. v. Peggy Bates CAYLOR.

No. 21728.

Supreme Court of Georgia.

Sept. 6, 1962.

Syllabus by the Court

1. It was not error to overrule the general and special demurrers to the petition.

2. The court having erred in sustaining plaintiff's motion to strike a paragraph of the answer of one of the defendants setting forth an affirmative defense to one of the material issues, all further proceedings were nugatory.

J. Paxson Amis, Chatsworth, James Maddox, Rome, for plaintiffs in error.

McCamy, Minor & Vining, Dalton, for defendant in error.

ALMAND, Justice.

Peggy Caylor in an action against Mrs. Pauline Dunn to recover damages for injuries to her person also sought to set aside a deed from Mrs. Dunn to her two minor daughters, also defendants. The general demurrer and certain special demurrers of the defendants to the petition were overruled. Paragraph 19 of the answer of Mrs. Dunn was stricken on motion of the plaintiff. On the trial a verdict awarding damages to the plaintiff against Mrs. Dunn and a finding that the deed should be set aside was returned and a judgment was entered thereon. Subsequently the defendants' motion for a judgment notwithstanding the verdict and for a new trial were overruled. Error is assigned on all of these orders.

1. The rulings on the demurrers to the petition.

(a) The general demurrer. The petitioner alleged that the injuries to her were sustained on the night of April 11, 1958, at a time when she was a guest passenger in an automobile which the petition alleged was owned, purchased and maintained by Mrs. Pauline Dunn for the 'use, pleasure and convenience of herself and members of her household' and at a time when said automobile was being used and operated by Gene Dunn, a minor son of the said Mrs. Pauline Dunn, with the 'full knowledge, consent and permission of' the said Mrs. Dunn. The said minor son of the plaintiff in error was a member of the United States Army at the time of the accident, was home on leave from a tour of duty on the West coast and had traveled on his trip home all of the day of April 11, 1958, and all of the night of April 10-11, 1958, without sleeping. At the time of the accident the said Gene Dunn was driving the automobile with the defendant in error and two other friends as his guests toward Tennga, Murray County, Georgia, at about midnight, and was returning from a picture show which the four had seen in Cleveland, Tennessee. The general demurrer clearly raises the question as to whether Mrs. Dunn would be liable under the family purpose doctrine for the acts of her son who was home on leave from the military service. It appears from the pleadings and the record that all of the necessary requisites to the application of the family purpose doctrine are here present and that the only argument which the plaintiff in error offers to defeat the application of the doctrine is the fact that the son was in the military service, and it is thus suggested that such service has so emancipated the minor child from the control of his parent that the family purpose doctrine would not be applicable. It is our opinion that the service of the son in the military service would not defeat the application of the family purpose doctrine in the present case. Although we find no case in this jurisdiction which decides this exact issue, we do find sufficient authority to support our decision in this case. In the case of Hubert v. Harpe, 181 Ga. 168, 172, 182 S.E. 167, 169, this court in holding that it did not defeat the application of the family purpose doctrine merely because the family member, an adult son, was a non-dependent and self-sustaining, stated that the controlling test is not whether the child is adult or minor or self-supporting or dependent but rather whether the child 'was using the car for a purpose for which the parent provided it with the permission of the parent either express or implied.' This court there stated that a decision relative to the application of the family purpose doctrine is based squarely upon the relation of master and servant or principal and agent and in any case the principal inquiry is whether, under the facts, such relation exists between the parent and the child. The court stated (p. 171, 182 S.E. p. 168) that 'a father is under no legal obligation to furnish an automobile for the comfort and pleasure of his child, whether minor or adult; and if he does so, it is a voluntary act on his part. In every such case the question is whether the father has expressly or impliedly made the furnishing of an automobile for such purpose a part of his business, so that one operating the vehicle for that purpose with his consent, express or implied, may be considered as his agent or servant. A child, wheter minor or adult, may occupy the position of a servant or agent of his parent, and for his [or her] acts as such the parent may be liable under the general principles governing the relation of master and servant or of principal and agent.' See also Golden v. Medford, 189 Ga. 614, 7 S.E.2d 236.

Every case concerning the application of the family purpose doctrine must stand upon its own facts as to what the parent has voluntarily assumed as a part of the business to which he will devote himself and to which he will have his vehicle applied. The extent to which an automobile may be used for the comfort and pleasure of the family is a question to be settled by the parent and it is also a matter for the parent's determination as to whether a son home from the military service would be included among those whose comfort and pleasure would be promoted by the use of the vehicle. A parent is not relieved from liability merely because a child is an adult or self-sustaining.

It was not error to overrule the ground of the demurrer of the plaintiff in error that the petition did not set forth a cause of action against the defendant parent.

(b) The special demurrers. These grounds challenge the sufficiency of the allegations to charge the driver with gross negligence. The petition alleges that the car was being driven at a speed of fortyfive to fifty miles per hour along a public highway and was approaching a concrete bridge in said highway; that at a point approximately three hundred yards from said bridge the highway curves to the driver's left; that the operator of the automobile, after leaving said curve and while approaching the bridge referred to,...