Griffin v. Russell

• Decision Date: 12 November 1915
• Docket Number: (No. 69.)
• Citation: 144 Ga. 275,87 S.E. 10
• Parties: GRIFFIN. v. RUSSELL.
• Court: Georgia Supreme Court

87 S.E. 10

144 Ga. 275

GRIFFIN.

v.RUSSELL.

(No. 69.)

Supreme Court of Georgia.

Nov. 12, 1915.

(Syllabus by the Court.)

Error from Superior Court, Crisp County; W. F. George, Judge.

Action by G. E. Griffin against Mrs. A. E. Russell. A demurrer was sustained to the petition, and plaintiff brings error. Reversed and remanded.

G. E. Griffin filed a suit against Mrs. A. E. Russell, to recover damages, alleging, among other things, as follows: The defendant is the owner of an automobile, which she allows her minor son to run and operate. On a day named the defendant's son was the chauffeur in charge of the car, operating it for the defendant, the owner thereof, and running it on the public road with the knowledge and consent of the owner. While the plaintiff was traveling in his buggy along the public road, the defendant's minor son, who was her agent, driving the car, negligently caused it to run against the buggy, injuring the plaintiff, the buggy, and the harness. The damage done to the buggy was $75, and that done to the harness was $15. The plaintiff's expenses for physician and surgeon and medicine, $—. He has been permanently injured, and lays his damages at $2,500. The defendant was negligent in the following respects: In allowing her minor son to operate the car on the public road; in allowing him to operate and run the car at a high and dangerous rate of speed; in allowing him, her agent and chauffeur in charge of the car, to operate it on a public highway at such a rate of speed as was obviously dangerous to the plaintiff and other travelers on the public road; in allowing him, while operating the car by and with her consent, to run it at such a rate of speed and in such a manner as was obviously dangerous to the plaintiff and other travelers, and in utter disregard of their rights; in allowing him, her agent and chauffeur in charge of and operating the car by and with her consent, willfully and wantonly, in utter disregard of the plaintiff's rights, to run the car against the plaintiff's buggy at such a rate of speed as was obviously dangerous. The defendant demurred generally and specially to the petition. A number of the grounds of the demurrer merely alleged that each of certain paragraphs in the petition, specifying them by number, did not set out a cause of action. Certain paragraphs were demurred to on the ground that it was not stated what were the duties of the plaintiff's minor son as her agent, or what duties he was performing for her at the time of the alleged negligent injury. The paragraph containing the allegation as to the expenses for physician and surgeon and medicine in the sum of $—was demurred to because it did not allege the amount paid as doctor's bills, and to whom paid; and the paragraph alleging the damage to the buggy and harness was demurred to because it did not specify or itemize the damage alleged to have been done to them. The plaintiff amended his petition by adding two paragraphs. The first was as follows:

"Defendant kept said automobile for the comfort and pleasure of her family, including Jim Russell, a member of said family. He was driving said automobile at the time of the injury herein complained of, and was driving the same for the comfort of himself and friends, who were riding with him, by and with the consent of the owner of said car, the defendant."

The second was as follows:

"The defendant kept said automobile for the purpose of hire, and the said Jim Russell, who was in charge of said car at the time of the injury herein complained of, was acting as chauffeur and driver of said car, and did act as chauffeur and driver of said car by and withthe consent and knowledge of defendant herein when said car was hired for the purpose of carrying passengers, and said Jim Russell was ai all times in charge of said car by and with the consent of said defendant."

Another allegation in the proposed amendment was not allowed. The presiding judge sustained the demurrer, passing the following order:

"The within demurrer having been submitted to the court for determination, and the plaintiff having disclaimed any purpose of alleging specific knowledge and consent by the defendant of the injury complained of, the demurrer is sustained upon each and every ground thereof, and the petition stricken."

The plaintiff excepted.

J. T. Hill, of Cordele, for plaintiff in error.

F. G. Boatright, of Cordele, for defendant in error.

LUMPKIN, J. (after stating the facts as above). 1. In passing upon a demurrer to a petition, the petition and demurrer are to be considered, not oral admissions. Hicks v. Beacham, 131 Ga. 89, 02 S. E. 45.

It may be taken as settled law in this state that a father is not liable for the tort of a minor child, with which he was in no way connected, which he did not ratify, and from which he did not derive any benefit, merely because of the relation of parent and child. Chastain v. Johns, 120 Ga. 977, 48 S. E. 343, 06 L. R. A. 958. And this accords with the rulings of other courts on the subject. A child, however, may occupy the position of a servant or agent of his parent, and for his acts as such the parent may be liable under the general principles governing the relation of master and servant, or principal and agent. The contested question in cases like the one under consideration usually is whether or not the facts show such a relation and liability arising to the parent therefrom. Some conflict in decisions has arisen from a difference in construing or applying the commonly used expression that the master is liable for the negligence of his servant "acting in the scope of his employment, " and in regard to "his master's business, " or like expressions. Courts have not always agreed as to what is within "the scope of his employment, " or what was an act in regard to the master's "business;" indeed, what was comprehended in the term "business." An agent or servant is frequently employed by contract or express agreement; but this is not necessary to establish the relation. It may arise by implication as well as expressly. Thus it is declared in Civil-Code 1910, § 3569, that:

"The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him, or subsequently ratifies the acts of another in his behalf."

The formality required in creating ad agency to do certain acts is not involved. The word "business" is commonly employed in connection with an occupation for liveli hood or profit, but it is not limited to such pursuits. When Jesus said "Wist ye not that I must be about my Father's business?" he had no reference to matters involving pecuniary rewards.

In Lashbrook v. Patten, 1 Duv. (Ky.) 316, a minor son, while driving his two sisters to a picnic in his father's carriage, drawn by his father's horses, and with his father's approbation, all of the children being members of his father's family, through negligence ran against the carriage of another, causing damage. The Court of Appeals said:

"The son must be regarded as in the father's employment, discharging a duty usually performed by a slave, and therefore must, for the purposes of this suit, be regarded as his father's servant. The doctrine that masters are responsible for the injuries arising from the carelessness of their servants whilst in the master's employment and the discharge of their duties has been so long recognized and acted on that we scarcely deem it necessary to elaborate the reasons or recite authorities."

In Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351, it was held that where a father purchased an automobile for the use of his family for pleasure, and allowed his minor son to operate it for the family, he was liable for the negligence of such son while operating it for his own pleasure with the permission of the father. On that occasion the boy had asked and obtained consent of his father to take some of his young friends to ride in the automobile. In the opinion Johnson, J., said:

"The evidence discloses that the machine was devoted to the use of the family, of which Ernest was a member. It was a pleasure vehicle, and, when used for the pleasure of one of the minor children of the owner, how can it be said that it was not being used on business of the owner? It is the practice of parents to provide their children healthful and innocent amusements and recreations and, certainly, it is as much the business of parentage to supervise and control the pleasures of their children as it is to give them nurture and education. Had Ernest been taking his mother for a pleasure ride instead of taking some of his young friends, no one would contend that he was not on his father's business; or, had he been using the car on an errand of his own, such as slopping for himself, or going to school, he would have been on his father's business, since it was the duty of his father to support and educate him. The rule that a father is not liable for the torts of his minor child applies only to cases where the tort is committed without the consent of the parent and without the scope of any duty he owes his child. We conclude that in running the car with the consent of his father and within the scope of family uses, Ernest was the agent and servant of his father."

In Stowe v. Morris, 147 Ky. 386, 144 S. W. 52, 39 L. R. A. (N. S.) 224, a motor car was kept by a man for the comfort and pleasure of his family, including a minor son and daughter as members of it They had the right to use it as often as and when they liked. On the occasion in question the son took the car at his own volition, and at his suggestion carried his sister and three other ladies for a ride. While he was driving the machine, he carelessly ran down and injureda boy on a bicycle. The father was held to be liable, on the ground that, the machine having been provided for the comfort and pleasure of the family, and the son having been given the right to use it, he was to be treated as...