Marques v. Ross, 39105
| Decision Date | 15 November 1961 |
| Docket Number | No. 39105,No. 2,39105,2 |
| Citation | 123 S.E.2d 412,105 Ga.App. 133 |
| Parties | Belle E. MARQUES v. H. C. ROSS et al |
| Court | Georgia Court of Appeals |
The court did not err in sustaining the motion for summary judgment.
The plaintiff, Belle E. Marques, filed a suit for damages against Herbert Curtis Ross, Sr. and Herbert Curtis Ross, Jr. The material allegations of plaintiff's petition for an understanding of the questions ruled upon herein are substantially as follows: That she was a guest passenger of Herbert Ross, Jr. in an automobile owned by Herbert Ross, Sr.; that she was injured in a wreck caused by the negligent operation of the automobile by Herbert Ross, Jr.; that Herbert Ross, Jr. was a member of the family of Herbert Ross, Sr., and he (Ross, Jr.) was driving and operating the automobile with the knowledge and consent of Herbert Ross, Sr.; that the automobile was owned and maintained by Herbert Ross, Sr. for the comfort, pleasure and convenience of his family, including his son (Ross, Jr.); and that Herbert Ross, Sr. was liable for the negligent acts of his son in the operation of the automobile.
Herbert Ross, Sr. filed a motion for summary judgment in his behalf. The evidence before the court on the hearing of the motion for summary judgment consisted of the depositions of the two defendants.
Herbert Ross, Jr. testified substantially as follows: That he had moved to the home of his parents in June, 1958, after separating from and instituting divorce proceedings against his wife; that his two minor children resided with him at his parents' home; that he had owned and operated an automobile of his own since 1947 or 1948; that on the date in question, November 28, 1958, he had a date with the plaintiff to take her to see a sporting event in Atlanta; that the fuel pump on his car was broken and his father suggested that he use his (the father's) car, and he did so; that as he was driving to Atlanta the right wheels of the automobile slipped off the pavement onto the wet and soft shoulder of the road, and in his attempt to bring the car back onto the pavement it skidded and turned over. Additional facts testified to by this defendant will be discussed in the body of this opinion.
Herbert Ross, Sr. testified substantially as follows: That he owned the automobile which his son was driving at the time of the wreck; that he owned and operated the car for his own purposes; that no one else operated the car except at his direction; that on occasions when he was driving and his son was riding with him, he would ask his son to drive when he, the father, was tired; that he did not give his son a key to the vehicle; that he did leave an extra key with his wife, but this was not for the purpose of allowing any other person to operate the automobile either for her pleasure or their own, but merely for the purpose of the safekeeping of an extra key; that on the date in question he, the father, knew his son's automobile was in 'bad shape,' and he said to his son, 'If your car is in bad shape, don't take a chance with your car, use mine'; that Herbert Ross, Jr. and his children were living in his (Ross, Sr.'s) house and that the son paid various amounts, usually $20 every two seeks, for room and board; that his son had never had a wreck with his (the father's) car, and he had no knowledge that his son (Ross, Jr.) had ever had a wreck in his own car; that he bought the car for himself, and he made it plain that he would not allow anybody to drive the car except himself; that his son (Ross, Jr.) was not a reckless driver; that he had not refused to allow him to drive because he was a reckless driver, and that he (Ross, Sr.) used the automobile to go to and from work.
The court granted a summary judgment in favor of the defendant, Herbert Ross, Sr. This case was first appealed to the Supreme Court, but was transferred to this court upon a ruling that a constitutional question was not properly raised. Marques v. Ross, 217 Ga. 153, 121 S.E.2d 305.
On oral argument before this court counsel for both parties agreed that the sole question to be determined by this court is whether the trial court erred in granting the motion for summary judgment.
G. Seals Aiken, Atlanta, for plaintiff in error.
Powell, Goldstein, Frazer & Murphy, Robt. R. Harlin, J. Winston Huff, Atlanta, for defendant in error.
The plaintiff contends that there is an issue of fact for the jury's determination upon two theories, namely, (1) whether Herbert Ross, Jr. was a member of the family of Herbert Ross, Sr. and was using the automobile of Herbert Ross, Sr. as a family purpose automobile at the time the wreck in question occurred, and (2) whether Herbert Ross, Sr. allowed his son to drive his (the father's) automobile when he, the father, knew his son was an incompetent driver. The evidence before the court on a motion for summary judgment does not support these contentions.
The evidence shows Herbert Ross, Jr. to be an adult who was residing at the home of his father. Herbert Ross, Jr. lived with his parents, he had his own room and paid board. He had driven his father's automobile on occasions, but it was only by express permission of his father.
Herbert Ross, Jr. testified that he had driven his father's car 'maybe a half dozen times' on special occasions between 1954 and the time when he gave his testimony. At the direction of his father he would drive the automobile with his mother as a passenger. His mother did not drive an automobile. Between June, 1958 (when Herbert Ross, Jr. moved into his father's home) and November 28, 1958 (the date of the wreck), he had driven his father's automobile only twice on personal errands. This included the occasion when the wreck occurred.
Both Herbert Ross, Sr. and Herbert Ross, Jr. testified that the only reason he, Herbert Ross, Jr., drove the automobile of Herbert Ross, Sr. on the date in question was because the automobile of Herbert Ross, Jr. had a defective fuel system. Herbert Ross, Sr. offered his son the use of his car and he accepted the offer. On this occasion the son had a date with the plaintiff, and the sole purpose for which he used his father's car was to transport himself and the plaintiff to a sporting event in Atlanta.
The leading cases in this State on the so-called family purpose doctrine are: Griffin v. Russell, 144 Ga. 275, 87 S.E. 10, L.R.A.1916F, 216, and Hubert v. Harpe, 181 Ga. 168, 182 S.E. 167. There is no useful purpose in discussing the fundamental principles supporting this doctrine. However, in Robinson v. Hartley, 98 Ga.App. 765, 766, 106 S.E.2d 861, 862, it was held: 'In order for the 'family-car' doctrine to be applicable, it must appear that the father, or head of the household, furnished and maintained the automobile for the pleasure, comfort and convenience of his family, so as to bring the operation of the automobile by a member of the family within the scope of the father's or household head's 'business'.' The court held, in the Hartley case, that although a nephew can be a member of the family, the facts in that case show the automobile was not furnished for the pleasure or convenience of the family.
The fact that a driver of an automobile, who is a son living in the home of his father, is an adult does not necessarily exclude from the family purpose doctrine his negligent acts while driving a family purpose car. Hubert v....
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...the evidence would be insufficient to show Smith's actual knowledge of Jones' excessive use of intoxicants. Marques v. Ross, 105 Ga.App. 133, 138, 123 S.E.2d 412; R. J. Reynolds Tobacco Co. v. Newby, 9 Cir., 145 F.2d Jones' prior testimony stands, however, and the jurors were entitled to co......
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Danforth v. Bulman, A05A1570.
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