Maddox v. Queen

• Decision Date: 04 September 1979
• Docket Number: No. 57154,57154
• Parties: MADDOX v. QUEEN.
• Court: Georgia Court of Appeals

Page 918

257 S.E.2d 918

150 Ga.App. 408

MADDOX v. QUEEN.

No. 57154.

Court of Appeals of Georgia.

Argued Jan. 16, 1979.

Decided June 22, 1979.

Certiorari Denied Sept. 4, 1979.

Harrison & Roper, Gary D. Stokes, D. Landrum Harrison, Augusta, for appellant.

Richard P. Schultz, Atlanta, for appellee.

BIRDSONG, Judge.

Appellant brings this appeal from a jury verdict for the defendant-appellee. Appellant, a four-year-old child, brought this suit b/n/f, her father. The child and her mother who were separated from the father were living with the appellee Queen, the mother's father and child's grandfather. Queen, on September 29, 1975, started his riding lawnmower for the purpose of cutting the grass. As the grandfather drove the mower into the yard, the child's mother said she would cut the grass while the grandfather ate a meal. After the grandfather had eaten, he returned to the yard to finish the mowing. His daughter stopped the mower's forward motion but with the mower still running. As she stepped off the mower to relinquish the operation to her father, it suddenly moved forward. The grandfather stepped to the side, out of the way of the mower, but his four-year-old grandchild was standing immediately behind him. The lawnmower ran into her and in the process, severely mangled her right foot. Neither the mother nor the grandfather knew the child was in the yard.

In the pre-trial order, the principal issues of fact to be submitted to the jury were stated to be whether the mother was negligent in the operation of the lawnmower, whether the mother was the agent of the defendant grandfather, whether or not any of the negligence of the mother, if any, could be imputed to the grandfather and whether the child's father could bring this cause of action. The jury returned a verdict for the appellee-defendant. The appellant brings this appeal enumerating numerous errors. Held :

The resolution of the threshold issue of whether an unemancipated minor child can sue her grandfather for a negligent tort is dispositive of this case.

Prosser, Law of Torts 496, 497 (3d Ed.), § 72 has the following comment about the Family Purpose Doctrine. "There is obviously an element of unblushing fiction in this manufactured agency; and it has quite often been recognized, without apology, that the doctrine is an instrument of policy, a transparent device intended to place the liability upon the party most easily held responsible."

In the instant case, the injured child lived in the home of her grandfather because, according to the testimony of the grandfather, the natural father had deserted his wife and child. Under such facts, the jury could conclude that the grandfather was in loco parentis to the granddaughter. See generally Howard v. Randolph, 134 Ga. 691, 68 S.E. 586. The grandfather was certainly the head of the household having provided a home for his wife, his daughter, and his grandchild.

To allow the plaintiff to sue under the facts of this case would violate the public policy of this state. As was held generally in Chastain v. Chastain, 50 Ga.App. 241, 177 S.E. 828 and Bulloch v. Bulloch, 45 Ga.App. 1, 163 S.E. 708: To allow an unemancipated child to sue a parent (or head of the household) would be against the public policy of this state. As we read the facts of this case, there is no evidence showing a wilful or malicious wrong or tort committed by a parent. In fact, it is difficult to glean from the evidence, any familial negligence leading to the injuries. In these circumstances, to allow an unemancipated child to sue the head of the household acting in loco parentis would also be against public policy. No case has been brought to our attention which holds that the head of the household may be sued by another member of the household.

We are aware of the holding in the case of Stapleton v. Stapleton, 85 Ga.App. 728, 70 S.E.2d 156. The facts in the Stapleton case are distinguishable. In that case, a father sued on behalf of his five-year-old daughter, the Employer of her mother who furnished to the mother an automobile. The child was in the automobile being driven by her mother on the employer's business when injured. No such analogous factual situation exists in the case sub judice.

The mother in the instant case was cutting the grass not only for her father's benefit, but for the benefit of herself and her daughter who resided in the home of her father. If the mother was in the process of transacting business affairs, i. e., cutting grass, it was for her own benefit and her daughter's benefit as well as for her father's benefit.

To allow a father, who is separated from his wife and child to file a suit against the grandfather who provides a home for the child and her mother based upon the fiction that the child cannot sue the mother but can sue the grandfather based upon imputed negligence from the mother to the grandfather is repugnant to the public policy of this state. Furthermore, we do not believe it to be expedient or proper to expand further the family car doctrine. While we are aware that the family car doctrine was extended to a boat by the Legislature, Code Ann. § 105-108.1 (b), we will not judicially extend the doctrine to riding lawnmowers.

Appellant moved for a directed verdict on the question of agency on the grounds that there was no question of fact to be submitted to the jury. Additionally, appellant enumerates as error various portions of the charge to the jury dealing with the matter of agency, respondeat superior, negligence, direct and imputable, accident, contributory negligence, proximate cause, and similar doctrines of law. In view of the holding of this court that a suit of the sort here under consideration violates the public policy of this state, these enumerations have all been rendered moot. The decision of the jury being for the defendant for whatever reason is correct.

Judgment affirmed.

UNDERWOOD, J., concurs.

DEEN, C. J., concurs specially.

McMURRAY, P. J., and BANKE, J., concur in the judgment only.

QUILLIAN, P. J., and SMITH, and CARLEY, JJ., dissent.

SHULMAN, J., not participating.

DEEN, Chief Judge, concurring specially.

A wife may not sue her husband on a direct cause of action personal to herself, Heyman v. Heyman, 19 Ga.App. 634, 92 S.E. 25; neither can she bring a derivative cause of action for the death of their five-year-old unemancipated child, Chastain v. Chastain, 50 Ga.App. 241, 177 S.E. 828. An unemancipated child under the control and maintenance of the father (Code §§ 74-104, 74-105, as amended, and head of the household or family, Code § 53-501) does not have a cause of action against the father because it would be repugnant to public policy. Bulloch v. Bulloch, 45 Ga.App. 1, 163 S.E. 708. Nor can the unemancipated child sue either parent of the marriage, mother or father. Eschen v. Roney, 127 Ga.App. 719, 194 S.E.2d 589 relying on Shell v. Watts, 125 Ga.App. 542, 188 S.E.2d 269. The latter was reversed on other grounds in Shell v. Watts, 229 Ga. 474, 192 S.E.2d 265. This parental immunity, however, is forfeited if a wilful tort is committed on the unemancipated child. Wright v. Wright, 85 Ga.App. 721, 70 S.E.2d 152. Likewise an unemancipated child may through the father sue the mother's employer even though the child's mother was the negligent driver of the employer's vehicle. Stapleton v. Stapleton, 85 Ga.App. 728, 70 S.E.2d 156.

An emancipated child may sue a parent for a personal tort founded on negligence (Farrar v. Farrar, 41 Ga.App. 120, 152 S.E. 278), but emancipated children may not sue their father in a wrongful death action seeking recovery for the mother's death because the action would have been derivative from the mother who had she lived could not have sued her husband for the injury sustained. Harrell v. Gardner, 115 Ga.App. 171, 154 S.E.2d 265, this writer dissenting. Emancipated children likewise may not sue their stepfather who had shot and killed the children's mother and himself, based on similar derivative rationale of Gardner, supra, although this writer, author of the majority opinion, agrees with the first paragraph of the dissent in this 5-4 decision wherein Judge, now Justice, Jordan said: "If this court's decision in Harrell v. Gardner, . . . cited in the majority opinion, requires the result reached here then in my opinion it should be re-examined." Horton v. Brown, 117 Ga.App. 47, 53, 159 S.E.2d 489, 493.

"As one cannot do indirectly what the law does not allow to be done directly, a third-party action cannot be maintained by a defendant when sued by a minor son as against his mother on account of negligent acts of another child imputed to her by means of the operation of a family purpose vehicle." Eschen v. Roney, 127 Ga.App. 719, 194 S.E.2d 589, supra, this writer dissenting. In his majority opinion and while "On Motion for Rehearing" one of Georgia's great judges, Judge Sol Clark, focused on three points: (1) Adherence to stare decisis, (2) immunity for protection of the doctrine of intra-familial harmony, unity and tranquility, and (3) non-indulgence of "judicial legislation." I thought my answer, at the time, to his first point was adequate citing Ellison v. Ga. RR. & Banking Co., 87 Ga. 691, 696, 13 S.E. 809, 810, Humthlett v. Reeves, 211 Ga. 210, 215, 85 S.E.2d 25, 30, and under Hall v. Hopper, 234 Ga. 625, 632, 216 S.E.2d 839, I believe that ". . . stability must give way to justice . . ." might now be added. As to Judge Clark's third point that Georgia courts should not or do not indulge in judicial legislation or sociological jurisprudence, I concur wholeheartedly. Oxford Professor Ronald Dworkin is today's leading exponent stressing that judicial decisions in hard cases must be based on legal "principles" within the ethical considerations existing at the time of adoption of the guarantees protecting our rights in the Constitution based on higher or immutable law. H. L. A. Hart, on the contrary, urges...