Evans v. Caldwell

• Decision Date: 31 January 1936
• Docket Number: No. 24606.,24606.
• Citation: 52 Ga.App. 475,184 S.E. 440
• Parties: EVANS et al. v. CALDWELL.
• Court: Georgia Court of Appeals

52 Ga.App. 475

184 S.E. 440

EVANS et al.

v.CALDWELL.

No. 24606.

Court of Appeals of Georgia, Division No. 1.

Jan. 31, 1936.

Syllabus by the Court.

1. The court did not err in overruling the general demurrer.

The evidence authorized the verdict.

2. "A master is responsible for the tortious acts of his servant, done in his business and within the scope of his employment, although "he does not authorize or know of the particular act, or even if he disapproves or forbids." This is so because the test of the master's responsibility for the acts of his servant is, not whether such act was done in accordance with the instruction of the master to the servant, but whether it was done in the prosecution and in the scope of the master's business.

3. A son living with his mother as a member of the family, having general authority to drive the family car for pleasure and convenience, is acting within the scope of his authority in so doing, though on a particular night his mother tells him that he may go to a picture show, but to return home immediately after the show, and after the show he starts to a dance in an adjoining community instead of returning home, as he was told to do; and his mother, the owner of the family car, is liable for his negligence in running the car.

4. Allowing the son to receive the proceeds of his own labor amounts to emancipation. However, this may be only temporary by the father's expressed or implied consent to the son's receiving the proceeds of his own labor, which may be revocable at any time for a particular employment, in which event it does not follow that the minor has been manumitted by the father for the whole period of his minority.

5. A request to charge merely a named principle, proposition, or theory of the case or law is not sufficient and is too indefinite to be considered.

6. The verdict was not so grossly excessive as to show bias or prejudice of the jury.

GUERRY, J., dissenting.

Error from Superior Court, Whitfield County; M. C. Tarver, pro hac Judge.

Suit by W. C. Caldwell against Mrs. Eugene Evans and another. Judgment for plaintiff, defendants' motion for a new trial was overruled, and defendants bring error.

Affirmed.

W. M. Sapp, of Dalton, and Neely, Marshall & Greene, of Atlanta, for plaintiffs in error.

R. Carter Pittman and Mann & Mann, all of Dalton, for defendant in error.

MacINTYRE, Judge.

This action was brought by a father against a mother and minor son, who lived at home with her. The plaintiff alleged that his son, then about 18 years of age, was injured by the gross negligence of the minor defendant in operating an automobile furnished by his mother to be used about the family business, pleasure, and convenience, and which was being used by him for such purposes, with the knowledge and consent of the mother, at the time the plaintiff's son was injured. The plaintiff claimed damages for diminution of his son's earning capacity during minority, and for medical expenses incurred as the result of the injury. The defendants demurred, and to the overruling of the demurrer they excepted pendente lite. They filed answers denying liability. The trial resulted in a verdict for the plaintiff for $2,000. The defendants' motion for new trial was overruled, and they excepted, assigning error also on the ruling excepted to pendente lite.

1. That the petition set up a cause of action against the minor defendant for gross negligence was adjudicated in the action brought by the plaintiff's son against the same defendant. The judgments overruling the demurrer to the petition and denying a new trial in that case were affirmed by this court. Evans v. Caldwell, 45 Ga.App. 193, 163 S.E. 920. It was heldthat the evidence supported a verdict in favor of the plaintiff, and that such evidence did not show that the plaintiff was injured because of his failure to exercise due care for his own safety in continuing to ride in the automobile driven by the defendant, after discovering that the defendant might be drinking intoxicating liquor and was operating the car at an unlawful rate of speed.

In the instant case Mrs. Evans, mother of W. R. Evans, who was a member of the family and residing therewith and who was operating the car at the time of the wreck, testified: "I own the automobile that was in the wreck. I maintain that automobile for the pleasure and comfort of the family. * * * He left home with it with my knowledge and consent. * * * I let him have the car on that evening in order that he might go to the picture show, with the understanding that he would come home immediately." The testimony further showed that the son, after the picture-show, started to a near-by community to a dance, and on the way the car was wrecked.

The judge charged the jury as follows: "I charge you that under the evidence in this case, in so far as it is without material contradiction, it appears that the automobile in question was purchased by the defendant, Mrs. Eugene Evans, for the comfort, pleasure, and convenience of herself and her family, and that the co-defendant, W. R. Evans, was a member of that family, and that upon the occasion under investigation he had secured possession of the automobile from his mother and codefendant for the carrying out of one of the purposes for which the automobile had been purchased by her, and although he might not have returned the automobile at the time he had promised to do, I charge you that, as a matter of law, the evidence shows without material contradiction that he was, at the time of the occurrence of the alleged damage to the plaintiff's son, Mack Caldwell, operating the car as agent of the codefendant, Mrs. Eugene Evans, and the defendant, Mrs. Eugene Evans, would be liable in this case if the defendant, W. R. Evans, is liable."

2. The so-called "family-purpose doctrine, " relative to an automobile furnished for the comfort and pleasure ("business") of the family, prevails in this state. "While the wife was not obliged to furnish the use of an automobile to the children or her family from her separate property, but having voluntarily done so, and having permitted its use as a part of her parental duties, she was liable where the injury occurred by reason of the operation of such automobile by a member of the family in a negligent manner, where such use was for the family pleasure and comfort." Ficklen v. Heichelheim, 49 Ga. App. 777, 176 S.E. 540, 541. A mother, the owner, is liable for the minor son's negligent operation of an automobile maintained for the comfort and pleasure of the family, where the minor son resided with the family and drove the automobile for his own pleasure with the expressed or implied permission of the mother. Hubert v. Harpe, 181 Ga. 168, 182 S.E. 167.

"To make the owner of an automobile liable for his driver's negligence, it must be established that the latter was acting within the scope of his employment. In other words, the owner of a motor vehicle is liable for the acts of his chauffeur when the latter is acting within the scope of his master's business. Conversely, the owner is not liable for the conduct of the servant when the latter is not acting within the scope of his employment. While it is, of course, true that the master rarely commands the servant to be negligent, or employs him with the expectation that he will commit a negligent or wilful tort, if the acts under consideration are done in the prosecution of the master's business, liability will ordinarily attach to the master. But if the tort of the servant is entirely disconnected from the service or business of the master, the latter is not responsible, although it may occur during the general term of the servant's employment. However, so long as the servant is acting within the scope of his employment, the owner is liable, though the negligent act was not necessary to the performance of his duties, or though it was not expressly authorized or known to the employer, or was contrary to his instructions. It is not enough, in order to establish liability, to show that the master has an interest in what is being done. It must also be made to appear that the servant whose act is in question has authority from the master to perform the class of service to which the act belongs. If the act is within the class, the master is bound, although the servant is forbidden to perform the particular act. If not within the class, the master is not bound." 7-8 Huddy's Cyclopedia of Automobile Law (9th Ed.), p. 233, § 91.

In Philadelphia & Reading R. Co. v. Derby, 14 How. (55 U.S.) 468, 14 L.Ed. 502, it was said: "The fact that the engineer having the control of the colliding locomotive, was forbidden to run on that track at the time, and had acted in disobedience of such orders, was no defence to the action. A master is liable for the tortious acts of his servant, when done in the course of his employment, although they may be done in disobedience of the master's orders." "The rule of 'respondeat superior, ' or that the master shall be civilly liable for the tortious acts of his servant, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent, or deceitful. If it be done in the course of his employment, the master is liable; and it makes no difference that the master did not authorize, or even know of the servant's act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant's employment. See Story on Agency, § 452; Smith on Master and Servant, 152. There may be found, in some of the numerous cases reported on this subject, dicta which, when served from the context, might seem to countenance the doctrine that the master is not liable if the act of his servant was in disobedience of his orders. But a more careful examination will show that they depended on the question whether the servant, at the time he did the act complained of, was acting in the course of his...