Harris v. Smith, 43884

• Decision Date: 03 February 1969
• Docket Number: 2,3,No. 43884,Nos. 1,43884,s. 1
• Citation: 167 S.E.2d 198,119 Ga.App. 306
• Parties: B. F. HARRIS et al. v. Jerry SMITH et al
• Court: Georgia Court of Appeals

Page 198

167 S.E.2d 198

119 Ga.App. 306

B. F. HARRIS et al. v. Jerry SMITH et al.

No. 43884.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Feb. 3, 1969.

Rehearing Denied March 6, 1969.

Certiorari Denied April 24, 1969.

Syllabus by the Court

Where circumstantial evidence authorizes an inference that the parents had actual knowledge that their son was an incompetent driver, testimony of these interested parties contradicting the circumstantial evidence does not erase an issue of fact as to their knowledge to the point of demanding a summary judgment conforming to the testimony of the interested parties.

The plaintiff brought an action for damages against the driver of an automobile and its owners, the driver's father and mother, for personal injuries received when the plaintiff was a guest passenger in the automobile. The plaintiff's father was the plaintiff in another suit against the same defendants for damages arising from his daughter's injuries. The trial court granted motions for summary judgment in favor of the father and mother defendants, determining that these defendants had sworn that they had no knowledge that their son was an habitually reckless driver and the plaintiff had failed to carry the burden to overcome this testimony by evidence of circumstances sufficient to present an issue that these defendants had actual knowledge of their son's habitual recklessness. (No issue of agency of the son was presented.) The plaintiffs appeal from this judgment.

Payne, Barlow & Green, William O. Green, Jr., Austell, for appellant.

Long, Weinberg & Ansley, Ben L. Weinberg, Jr., Charles E. Walker, Atlanta, for appellee.

HALL, Judge.

Knowledge of the driver's incompetency is an essential element of the rule which holds an owner liable for furnishing his automobile to an incompetent driver and such knowledge must be actual rather than constructive. Hines v. Bell, 104 Ga.App. 76(3b), 120 S.E.2d 892; Roebuck v. Payne, 109 Ga.App. 525, 136 S.E.2d 399; Lee v. Swann, 111 Ga.App. 88, 140 S.E.2d 562; Saunders v. Vikers, 116 Ga.App. 733, 158 S.E.2d 324.

On the issue of the defendant's knowledge of the driver's incompetency the following showing was made by the plaintiff in opposition to the defendants' motion for summary judgment: The defendants' son was born in 1941. His mother testified that she knew of a wreck he had in 1955 (when he would have been age 14) and in the mother's opinion it was not her son's fault. The son left home in 1963 when he married. During the 22 months from November 1960 to September 1962 the son (when he was 19 to 21 years of age) had 11 traffic offenses, as shown by the records of the Municipal Court and the Traffic Court of the City of Atlanta. For these offenses he received various sentences of 4, 6, or 8 months, suspended upon payment of fines, and suspensions of his driver's license. The fines assessed totaled over $700. Four of these penalties are shown to be for speeding, another for 'red light,' one for 'an accident,' six for driving with license revoked. The same records show that in 1965 before the incident on October 23 giving rise to this suit, the son had two violations for which he was fined, for 'stop sign' and 'improper backing, accident.'

Answering questions as to whether she had had trouble with her son and whether he had even been arrested before, the mother testified, 'Well, maybe for a little minor-yeah he had been arrested before because he had worked on a car here and drove it down there into Johnson Road and because he didn't have the muffler on it, why, they arrested him there.' Again, in answer to a question whether she had ever heard of her son getting any traffic tickets, the mother testified, 'I told you that he got some for fixing cars and not having mufflers and things on.' Thereafter she testified that she didn't know of any more than one. A letter to the defendants from their liability insurer on December 20, 1965, states: 'As you are aware, your son was excluded from the * * * policy on January 11, 1962, and has been excluded on each renewal thereafter. The insurance company did not wish to provide coverage because of his previous driving record.' The defendants admitted receipt of this letter, but denied that their son's driving record was the reason for his exclusion from coverage and denied knowledge of his driving record.

We hold there was sufficient circumstantial evidence to authorize a jury to draw the inference that the defendants had actual knowledge that their son was an incompetent driver. The defendants denied on deposition that they had any knowledge of their son's driving propensities. Does their testimony destroy as a matter of law the above circumstantial evidence and prevent the jury from determining whether or not their testimony is true or false? The answer is found in the recent Supreme Court case of McCurry v. Bailey, 224 Ga. 318, 162 S.E.2d 9, a summary judgment case involving a similar issue on the credibility of a defendant's sworn testimony. In considering the positive sworn testimony of the defendant in that case and the circumstantial evidence, the Supreme Court held: "Circumstantial evidence from which the existence of a fact might be inferred, but which did not demand a finding for the plaintiff to that effect, will not support a verdict, when by positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence, relied on by the plaintiff it was affirmatively shown that no such fact existed.' * * * The very 'guts' of the question is on the one hand unquestionably the inert body of the defendant in the driver's position, and on the other the defendant who is interested in the outcome testifying that the deceased was driving. Was he telling the truth? Circumstances say no. Does this contradiction yield to determination as a matter of law, or rather does it call for a jury verdict of men who are acquainted with the facts of life? We unhesitatingly hold that such a conflict is beyond the reach of mere judicial decision and can be resolved only in the American way-by the verdict of twelve jurors. The only human resolution of such conflicts can, under our jurisprudence, be made by a jury who alone can impeach, who alone can judge credibility, and who alone can decide issues of fact. They might in their wisdom growing out of human experience lawfully say the physical fact as to the position of the defendant's body under the steering wheel outweighs his contrary testimony as an interested party, or contrariwise. Judges are not under our Constitution invested with authority to usurp this power which is reserved by law to the jury.' See also Young v. Reese, 119 Ga.App. 179(2), 166 S.E.2d 420.

Under the McCurry ruling, it cannot be said as a matter of law that the sworn testimony of the defendant parents is, in the words of our Supreme Court, 'perfectly consistent with the circumstantial evidence.' Therefore, it is for the jury rather than the trial court to judge the credibility of the defendants' statements that they had no actual knowledge of their son's previous reckless driving record.

The trial court erred in granting the defendants' motion for summary judgment.

Judgment reversed.

BELL, P.J., JORDAN, P.J., and PANNELL and DEEN, JJ., concur.

FELTON, C.J., EBERHARDT, QUILLIAN and WHITMAN, JJ., dissent.

QUILLIAN, Judge (dissenting).

The question here involved is whether the trial judge correctly granted the defendants' motion for summary judgment because the evidence conclusively showed that the defendants had no actual knowledge of any past reckless driving on the part of Jerry Smith or any knowledge of past conduct sufficient to support an action against him based on the theory of negligent entrustment.

In the instant case the plaintiff introduced records showing that Jerry Smith had been convicted eleven times for various offenses while he was living with his parents up to 1963. However, both parents positively denied that they had any knowledge of Jerry Smith's propensity for reckless driving. There was no direct evidence showing that the defendants knew, other than as to one transaction, of Jerry Smith's driving record or were informed, prior to the collision here involved, as to why he was not insured under the policy.

In this regard, according to the testimony of Mr. Wilcox, the insurance agent, the policy itself merely stated: "It is agreed that such insurance as is afforded by the policy for bodily injury liability, for property damage liability, for automobile medical payments...