Durden v. Maddox

• Decision Date: 25 February 1946
• Docket Number: 31136.
• Citation: 37 S.E.2d 219,73 Ga.App. 491
• Parties: DURDEN et ux. v. MADDOX.
• Court: Georgia Court of Appeals

37 S.E.2d 219

73 Ga.App. 491

DURDEN et ux. v. MADDOX.

No. 31136.

Court of Appeals of Georgia, Division No. 2.

February 25, 1946

Syllabus by the Court.

In an action against a husband and wife to recover damages for the negligence of the wife in the operation of an automobile the evidence failed to show, as alleged, that the automobile was furnished by the husband as a 'family-purpose' car, and the verdict against the husband was unauthorized.

Mrs A. J. Maddox sued Mr. and Mrs. R. C. Durden for damages allegedly arising by reason of the negligence of Mrs. Durden while operating an automobile belonging to her husband. The petition alleged that the automobile was owned, maintained and furnished by R. C. Durden for the pleasure, convenience and use of the members of his family and that Mrs. Durden was using it at the time of the accident within the scope of the purpose and use for which it was maintained and furnished. The jury found for the plaintiff against both defendants, who except to the overruling of their motion for a new trial.

O. C. Hancock and Clifford R. Wheeless, both of Atlanta, for plaintiffs in error.

Francis G. Jones Jr., of Atlanta, for defendant in error.

FELTON Judge.

The only question for decision, raised by the general and special grounds, is whether the evidence authorized a verdict against Mr. R. C. Durden on the 'family-purpose' theory. A careful study of the evidence will disclose that there was no evidence that Mr. Durden furnished the car for family purposes, or that it was used by Mrs. Durden in his business, or in any way as his agent or at his command. The only theory on which it is contended that the husband was liable is the family-purpose doctrine, so it is unnecessary to discuss other theories. The evidence showed that Mr. Durden owned the automobile; that on the day of the injuries he was out of Atlanta, where he lives; that he left the key to his automobile in his desk drawer; that Mrs. Durden drove the car to town that day to go shopping; that she had never used the car before that day and had not used it since. Mrs. Durden testified: 'As to whether or not my husband trusted me to drive the car, I don't know, but I had never driven this car before, because this car was for his use and he used it in his business. I hadn't used it for shopping until this day. After the accident happened, I didn't use the car any more. To my knowledge that car had never been used for family purposes. We had only been married a little over two months. Mr. Durden has never told me I couldn't use the car. I never did ask him. I do not go shopping in it frequently.'

There is no presumption of law that a man with a family furnishes an automobile to his family for pleasure and convenience merely because he owns one. Otherwise the family purpose doctrine would have had a different evolution. The doctrine as applied in Georgia is that where one furnishes an automobile to members of his family for pleasure or convenience, etc., he is liable for injuries inflicted by the machine while it is being negligently operated by a member of the family for a purpose for which it was furnished, on the theory that the furnishing and using of the car for such purposes is the business of the husband and the one operating it is the agent or servant of the owner in the course of his business. Griffin v. Russell, 144 Ga. 275, 87 S.E 10, L.R.A.1916F, 216, Ann.Cas.1917D, 994; Hubert et al. v. Harpe, 181 Ga. 168, 182 S.E. 167; Levy et al. v. Rubin, 181 Ga. 187, 182 S.E. 176; Evans et al. v. Caldwell, 84 Ga. 203, 190 S.E. 582; Golden v....