Durrett v. Farrar, s. 48223-48226

CourtUnited States Court of Appeals (Georgia)
Citation130 Ga.App. 298,203 S.E.2d 265
Docket NumberNos. 1,2,3,Nos. 48223-48226,s. 48223-48226,s. 1
PartiesDebra S. DURRETT v. Polly FARRAR (two cases). Polly FARRAR v. Debra S. DURRETT. Polly FARRAR v. Frank FULLER et al
Decision Date29 October 1973

Dunaway, Shelfer, Haas & Newberry, L. Robert Lake, Atlanta, for Debra S. Durrett.

William R. Parker, Atlanta, for Polly Farrar.

Gambrell, Russell, Killorin, Wade & Forbes, Edward W. Killorin, Richard L. Stumm, Atlanta, for Frank Fuller.

Syllabus Opinion by the Court

CLARK, Judge.

This opinion covers four appeals arising out of a trial of a wrongful death action against three defendants. Mrs. Polly Farrar sued for the death of her 21-year-old son who was killed while riding as a passenger in a Volkswagen being driven at a high speed by another young man, William Bruce Dangler, when the speeding car crashed into a tree. The driver also died at the scene. Title to the automobile was placed in D. C. Durrett at the time it was purchased for Debra S. Durrett, his 20-year-old daughter, this being due to her The three defendants were Durrett, who was sued under the family purpose doctrine, the daughter, against whom liability was claimed both on the basis of agency and of negligent entrustment, and the administrator of the deceased driver for alleged negligence in operating the death vehicle.

We will refer to these parties in their respective postures, thusly: plaintiff passenger, defendant father, defendant daughter, and defendant driver. A three-day trial ended in a verdict being directed for the defendant father and the jury finding in favor of both of the other defendants. Plaintiff filed a motion for new trial which was subsequently amended. The trial judge first granted a new trial on the general grounds as to the defendant daughter alone. Thereafter, upon motion he vacated this discretionary ruling and entered a new order. In this he again granted a new trial as to the defendant daughter alone but in doing so specified he did so on the basis of three special grounds involving alleged errors in his charge to the jury which dealt solely with the defendant daughter. All other grounds of the new trial motion were overruled.

The tragic deaths of the two young men were the climax of a Fourth-of-July week-end party at the Atlanta Yellow Umbrella apartments hosted by three young women. Defendant daughter Debra together with plaintiff passenger and defendant driver were among the many guests, all of whom participated in drinking alcoholic beverages. A disputed fact was knowledge by the plaintiff passenger and by defendant daughter of the number of libations imbibed by defendant driver and the effect upon his ability to drive. Testimony of a service station attendant from his observation of the two young men while they were en route to their ill-fated destiny was sufficient to create a jury question as to whether they were under the influence of intoxicants shortly before they met their death.

Also in dispute was whether defendant driver had defendant daughter's permission to use the Volkswagen for a mission on her behalf to obtain hamburgers. Her testimony was to the contrary and that her car keys had been taken from a window sill against her wishes and without her knowledge. The jury's verdict indicated these arbiters of fact accepted her version.

Another disputed fact was a contention that defendant driver had panicked while being chased by an unmarked police vehicle which plaintiff argued prevented application of assumption of risk since he did not have the possibility to extricate himself which would have been the situation during a previous stop at the service station.

1. Plaintiff enumerated as error the court's direction of a verdict for defendant father. Plaintiff argues that defendant daughter's alleged action in dispatching defendant driver for hamburgers placed the car under her control and therefore within the family purpose doctrine.

In Finnochio v. Lunsford, 129 Ga.App. 694, 201 S.E.2d 1, we said: "In order to qualify as a provider under the family purpose doctrine one must be the principal mover, one who intends to provide for another or others the particular thing, the automobile, and takes steps on his own responsibility to see the consummation of the transaction, and contributes substantially of his own means toward that end without expectation of reimbursement or compensation.' Smith v. Simpson, 260 N.C. 601, 611, 133 S.E.2d 474, 482 . . . It is important to remember however that ownership will not in and of itself create liability. (Citations.) 'To allow any recovery 'based upon mere ownership' would deprive the defendant of property without due process of law, would authorize a recovery without liability, and would compel payment without fault.' Frankel v. Cone, 214 Ga. 733, 736, 107 S.E.2d 819; Koutras v. Lazarus, 122 Ga.App. 870, 872, 179 S.E.2d 106, 108.'

'The principal factor in such cases is authority and control of the vehicle, and this is not necessarily determined by title to the vehicle or payment for the expenses of operation. Baker v. Shockey, 93 Ga.App. 595, 596, 92 S.E.2d 314 . . . Even if it were conceded that defendant was the owner of the vehicle, the case would not turn on this point, as it would not disprove the uncontradicted evidence showing that the son as an emancipated minor had the right to and did excercise exclusive authority and control over the vehicle.' Calhoun v. Eaves, 114 Ga.App. 756, 760, 761, 152 S.E.2d 805, 808. 'Where, as here, the driver is only a borrower and the transaction is only a bailment, there is no liability under the doctrine of respondeat superior. (Cits.) The fact that the son had a right to use the car as he pleased for his own purposes is not sufficient to make his father, the defendant owner, liable where the son lent the car to another under circumstances where, had the defendant himself lent the car to such other he would not be liable. Nor can we find where the allegation that the father entrusted the automobile with his son 'to promote his said son's pleasure and to enhance his prestige' strengthens the case, granting that it might enhance the son's prestige to lend his automobile to his fellow students. It is not the motive of the defendant in making the automobile available, but the use to which it is put which determines liability . . . At the time of the collision, the automobile was being operated by Kent, a borrower, solely for his own purposes.' Johnson v. Brant, 93 Ga.App. 44, 47, 90 S.E.2d 587, 589.

Consequently, a mere showing that the vehicle was registered in the father's name and utilized by a family member is alone not sufficient to establish this to be a family purpose car. Defendant daughter testified she had exclusive use of the car and that the sole reason title was in her father's name and not hers was simply because she was not old enough (T 48). She further testified to a specific restriction her father had placed upon its use: 'I could only take it at certain times and certain places. And I wasn't, nobody was supposed to drive it except me.' (T. 48). There being no contradiction of this evidence, the nature of the restriction brought the case within the ruling of Pritchett v. Williams, 115 Ga.App. 8, 153 S.E.2d 639: 'When there are no particular facts sufficient to show that the owner of a family purpose automobile authorized a family member to delegate his authority to drive the automobile, the owner is not liable for injuries arising out of the operation of the automobile by another person at the request of and for the convenience and comfort of the family member but outside his presence and control.' As there was not sufficient proof to bring the event within the family purpose doctrine and as defendant daughter testified she alone was permitted to drive the car and since she was not present in the car at the time of the incident, the court properly directed a verdict for defendant father.

2. In case No. 48226, there is a cross appeal in which defendant daughter enumerates as error the court's denial of defendant daughter's motions for directed verdict based upon there being no credible evidence of any agency or entrustment relationship, no evidence of negligence, and that if she had been negligent the guest passenger's later contributory negligence exonerated her. As factual issues existed on these phases, it was proper to deny this motion and submit these matters to jury determination. Code Ann. § 81A-150.

3. Another assignment of error attacks the manner in which the court vacated its original grant of a new trial as to defendant daughter alone one general grounds and substituted a new order specifying the special grounds dealing with alleged errors in the jury charge.

'The first grant of a new trial shall not be disturbed by the appellate court if said new trial is granted in the discretion of the judge on general grounds, unless the plaintiff in error shall show that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the trial court . . .' Code Ann. § 6-1608. Clearly, since the grant of a new trial on general grounds was within the court's discretion, the timely vacating of such grant was also within the court's discretion. Therefore, in the absence of any showing of abuse of the trial court's discretion or lack of jurisdiction, and where, as here, there was some evidence to support the verdict, this court will not review the order timely taken which vacated the discretionary grant of a new trial on general grounds. See Dunn v. Gilbert, 217 Ga. 358, 122 S.E.2d 93.

4. It is obvious that the trial judge withdrew his original order for the purpose of specifying the particular grounds which motivated his decision. With his issuance of the requisite immediate review certificate he entrusted to the appellate court the duty to pass upon the...

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