Finnocchio v. Lunsford

• Citation: 129 Ga.App. 694,201 S.E.2d 1
• Decision Date: 06 September 1973
• Docket Number: Nos. 48252,48253,No. 2,s. 48252,2
• Parties: Frank J. FINNOCCHIO et al. v. Evelyn S. G. LUNSFORD. Frank J. FINNOCCHIO et al. v. Leon LUNSFORD
• Court: United States Court of Appeals (Georgia)

Page 1

201 S.E.2d 1

129 Ga.App. 694

Frank J. FINNOCCHIO et al. v. Evelyn S. G. LUNSFORD.

Frank J. FINNOCCHIO et al. v. Leon LUNSFORD.

Nos. 48252, 48253.

Court of Appeals of Georgia, Division No. 2.

Sept. 6, 1973.

Rehearing Denied Sept. 20, 1973.

Charles H. Hyatt, Robert J. NeSmith, M. M. Armistead, Decatur, for appellants.

Hurt, Hill & Ruchardson, James C. Hill, W. Seaborn Jones, Hopkins & Gresham, H. Lowell Hopkins, Robert E. Whitley, Atlanta, for appellees.

Syllabus Opinion by the Court

HALL, Presiding Judge.

Frank J. Finnocchio and Michael J. Finnocchio, father and son, appeal from the denial of their new trial motions and their motions for judgment notwithstanding the verdict, following verdicts rendered against them in DeKalb Superior Court in favor of Evelyn Lunsford and Leon Lunsford, husband and wife, who sued to recover for personal injuries suffered by Mrs. Lunsford in a 1963 auto collision with Michael Finnocchio and for consequent medical expenses and loss of consortium suffered by Leon Lunsford. Blue Top & Veterans Cab Co., Inc., in whose vehicle Mrs. Lunsford was riding at the time of the collision, was also a defendant in the trial court.

.the issues presented are whether the Finnocchios, appellants, have standing to challenge the trial court's direction of a verdict for Blue Top and Veterans Cab Co., Inc., and whether a jury question was presented on whether under the facts here the family purpose doctrine applied to render Frank J. Finnocchio liable jointly for damages arising from the collision in which Michael J. Finnocchio was a driver.

1. A codefendant in a tort action growing out of a 1963 automobile collision has no standing to appeal the grant of another codefendant's motion for a directed verdict. Southeastern Erection Co. v. Flagler Co., 108 Ga.App. 831, 134 S.E.2d 822. The 1966 and 1972 amendments to Code Ann. § 105-2012 are inapplicable for the reason that the injury occurred in 1963. F. H. Ross & Co. v. White, 224 Ga. 324, 161 S.E.2d 857; Lewis Card & Co. v. Liberty Mutual Ins. Co., 127 Ga.App. 441, 193 S.E.2d 856.

2. Prior to the family purpose doctrine, the head of a family could not be held liable for the negligence of some other member of the family driving the car. The doctrine created a fictitious agency to establish liability. Griffin v. Russell, 144 Ga. 275, 87 S.E. 10.

The rules applicable to the family purpose doctrine are as follows: 'To come within the application of the doctrine, the defendant must own the automobile, or at least have some recognized property interest in it or supply it, and he must have made it available for family use, rather than for use in his business. The driver must be a member of the defendant's immediate household, as distinguished from a more distant or collateral relative such as a brother-in-law. The fact that the driver is an adult son usually is held, however, not to prevent the agency relation where he is still a member of the household. The car must be found to have been driven at the time with the permission or acquiescence of the defendant, although his consent may be inferred from a failure to protest at frequent violations of his orders not to use the car.' Prosser, 'Law of Torts' (2d Ed.) p. 370, § 66.

It is important to remember however that ownership will not in and of itself create liability. Raley v. Hatcher, 61 Ga.App. 846, 848, 7 S.E.2d 777; Hexter v. Burgess, 52 Ga.App. 819, 184 S.E. 769; Baker v. Shockey,93 Ga.App. 595, 92 S.E.2d 314; Calhoun v. Eaves, 114 Ga.App. 756, 760, 152 S.E.2d 805; 6 Blashfield Automobile Law and Practice, § 255.26. "To allow any recovery' based upon mere ownership of an automobile '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. To hold the head of a family liable under the family purpose doctrine, he must have provided the automobile for the pleasure, comfort or convenience of some member of his family. Ferguson v. Gurley, 218 Ga. 276, 127 S.E.2d 462.

' 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. In Sledge v. Law, 113 Ga.App. 746, 149 S.E.2d 758, this court held that although the son had title, he was an unemancipated minor, lived at the home of the father, the father made him a gift of part of the purchase price, supplied the money for the operating expenses and insurance and therefore had provided him with the car. In Calhoun v. Eaves, 114 Ga.App. 756, 152 S.E.2d 805, supra,...