Hubert v. Harpe

• Decision Date: 28 September 1935
• Docket Number: 10523.
• Citation: 182 S.E. 167,181 Ga. 168
• Parties: HUBERT et al. v. HARPE. [a1]
• Court: Georgia Supreme Court

182 S.E. 167

181 Ga. 168

HUBERT et al. v. HARPE. ^[a1]

No. 10523.

Supreme Court of Georgia

September 28, 1935

Rehearing Denied Oct. 3, 1935.

Syllabus by the Court.

Where a father keeps and maintains an automobile to be used for the comfort and pleasure of his family, including his wife and minor children, and where he permits a nondependent self-supporting adult son to reside in his home without charge, whom he also as a matter of custom voluntarily permits to use and drive the automobile for the comfort and pleasure of the son upon the same footing as the father's wife and minor children, the father can be held liable for a personal injury to a third person proximately caused by the negligent operation of the automobile by such son, where at the time of the injury the son was driving the vehicle for his own recreation and pleasure by the express or implied permission of the father.

Certified Question from Court of Appeals.

Suit between Z. T. Hubert and C. E. Harpe. To review the judgment the first-named party brings error to the Court of Appeals which certifies a question.

Question answered.

GILBERT and ATKINSON, JJ., dissenting.

Branch & Howard and Bond Almand, all of Atlanta, for plaintiff in error.

J. O Ewing and H. A. Allen, both of Atlanta, for defendant in error.

BELL Justice.

The Court of Appeals (in case No. 23642) certified the following question: "Where a father keeps and maintains an automobile to be used for the comfort and pleasure of his family, including his wife and minor children, and where he permits a nondependent, self-supporting adult son to reside in his home without charge, whom he also as a matter of custom voluntarily permits to use and drive the automobile for the comfort and pleasure of the son upon the same footing as the father's wife and minor children, can the father be held liable for a personal injury to a third person proximately caused by the negligent operation of the automobile by such a son, where, at the time of the injury, the son was driving the vehicle for his own recreation and pleasure by the express or implied permission of the father? See, in this connection, Griffin v. Russell, 144 Ga. 275, 87 S.E. 10, 11, L.R.A. 1916F, 216, Ann.Cas. 1917D, 994; Stanford v. Smith, 173 Ga. 165, 159 S.E. 666; Bryant v. Keen, 43 Ga.App. 251, 158 S.E. 445; Kennedy v. Manis, 46 Ga.App. 808, 169 S.E. 319." This question is answered in the affirmative.

In Griffin v. Russell, supra, the petition alleged the following: A woman owned an automobile, and had a minor son. She allowed her son to run and operate the car. On a day named the minor son was the chauffeur in charge of the car, operating it for his mother, the owner, and running it on the public road with the knowledge and consent of his mother. The boy, "who was the agent of the said [owner] as hereinbefore alleged, driving said car," negligently caused it to collide with a buggy in which the plaintiff was riding, causing injury to him and to the buggy and harness. The injury was caused by the carelessness and negligence and by acts and omissions to act on the part of the mother and on the part of the son, "her agent and chauffeur in charge of said car." By amendment the plaintiff added the following: "Defendant kept said automobile for the comfort and pleasure of her family, including Jim Russell [the son], a member of said family. He was driving said automobile at the time of the injury herein complained of, and was driving same for the comfort and pleasure of himself and friends, who were riding with him, by and with the consent of the owner of said car, the defendant." It was held that the petition stated a cause of action. In the opinion delivered by Mr. Justice Lumpkin it was said: "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, 66 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. * * * 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. * * * If [the mother] kept the automobile to be used for the comfort and pleasure of her family, including her minor son as a member thereof, such use was her business or affair. * * * If she had placed a third person in charge of the car as a chauffeur to drive it for the purpose for which it was kept, he would have been her agent or servant, and she would be liable for the negligent manner in which he drove the car. If, instead of doing this, she allowed her minor son to act as her chauffeur or agent for the purpose of driving the car, she would likewise be liable for his negligence in so doing. If a father or mother, owning an automobile, and keeping it to be used for the comfort and pleasure of the family, should authorize a son to drive it for the comfort or pleasure of the family, this would make the owner liable for the negligence of the son operating the machine for such purpose. How many of the family must be riding in the machine in order to make it a family use? If the boy should carry his sister for a ride, this would evidently be such use. Suppose that the sister should determine not to go, and he should go alone, would the use cease to be a family use? Certainly not all of the family have to be riding in the machine, to make it a family use. If two are sufficient for that purpose, why not one? But it may be said that here the boy was using it for the comfort and pleasure of himself and friends, who were riding with him, even though by and with the consent of the owner of the car. If it would be a family use for the boy to ride alone, it is difficult to perceive how taking his friends with him would make it less so, especially if with the consent of the owner. Suppose that the boy should start to ride with his sister, and at the last moment she should determine not to go, and that the owner should consent for him to substitute a friend or friends of his own in lieu of his sister, would this change the whole status and relieve the owner of liability, where liability would have existed before? In this case it was alleged that on the occasion when the injury took place the boy was the chauffeur or agent of the owner, in charge of the car, operating it for the owner. It seems unquestionable that the demurrer should not have been sustained."

As shown in other parts of that decision, the court examined numerous outside authorities, including several cases in which a contrary view had been taken. The two lines of authority were carefully considered, and a deliberate choice was made between them. The decision in that case, though not concurred in by all the justices, was rendered nearly twenty years ago, during which period the Legislature has taken no action modifying the rule stated; and the decision has been followed by the Court of Appeals in a number of cases. Quite recently this court denied petitions for certiorari to review the decisions in Ficklen v. Heichelheim, 49 Ga.App 777, 176 S.E. 540, and Ficklen v. Watkins, 49 Ga.App. 779, 176 S.E. 541, Id., 49 Ga.App. 779, 176 S.E. 542, in each of which a mother was sued for the negligent operation of her automobile by her minor son, and in which the Court of Appeals applied the principle enunciated in Griffin v. Russell, supra. In all the circumstances, the principle of stare decisis should be given some weight, and the more especially since the decision under consideration is well supported by authority. Some courts have refused altogether to permit recovery in such case, while others, after first holding in favor of liability, have receded from their former position and announced a contrary doctrine. Cf. Hays v. Hogan, 273 Mo. 1, 200 S.W. 286, L.R.A. 1918C, 715, Ann.Cas. 1918E, 1127; Stumpf v. Montgomery, 101 Okl. 257, 226 P. 65, 32 A.L.R. 1490. This court adheres to its former decision. As will have been observed, the decision was based squarely upon the relation of master and servant or principal and agent, and in the present case the principal inquiry is whether, under the facts stated, such relation existed between the defendant father and his nondependent, self-supporting adult son, who was driving the automobile at the time of the injury. A father is under no legal obligation to furnish an automobile for the comfort and pleasure of his child, whether minor or adult; and if he does so, it is a voluntary act on his part. In every such case the question is whether the father has expressly or impliedly made the furnishing of an automobile for such purpose a part of his business, so that one operating the vehicle for that purpose with his consent, express or implied, may be considered as his agent or servant. A child, whether minor or adult, 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 of principal and agent. Even in jurisdictions where the doctrine of liability is recognized, it would seem that no definitely fixed rule has been applied, but that every case must stand upon its own facts as to...