Mason v. Powell, 35780
| Decision Date | 13 July 1955 |
| Docket Number | No. 2,No. 35780,35780,2 |
| Citation | 92 Ga.App. 496,88 S.E.2d 734 |
| Parties | Mrs. Columbia MASON et al. v. M. C. POWELL, Next Friend, etc |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The petition here, which alleges in substance that one of the defendants, a mother, kept an automobile for the use, comfort, pleasure and convenience of the family; that pursuant thereto she turned the automobile over to her son who in turn, without the actual knowledge of the mother, permitted an incompetent driver to operate it unaccompanied by any member of the mother's family, and that such incompetent driver injured the plaintiff through negligent operation of the automobile, fails to state a cause of action against the mother as such owner of the automobile.
2. The allegations of the petition that the driver of the automobile in which the plaintiff was injured had been driving it for several days and that the defendant mother 'either knew or should have known' that her son to whom she had delivered the car for family-purposes was permitting the driver to use it, amounts only to constructive knowledge of the part of the defendant mother and is insufficient to show that she had actual knowledge of this use of the automobile and that she thereby ratified the act of her son in turning the automobile over to an incompetent driver.
3. The allegations of the petition to the effect that the son of the defendant mother used alcohol to excess and that she 'knew or should have known' that he was intoxicated and would probably remain in that condition when she turned the car over to him shows no causal connection, when construed with the petition as a whole, between this condition and the injuries of the plaintiff.
4. The allegations of the petition are sufficient to state a cause of action against the defendant son for turning the automobile over to a person known to him to be a reckless and incompetent driver who was actually and legally incompetent to operate an automobile.
Edwana Powell, a minor, by her father M. C. Powell as next friend, filed an action for damages in the Superior Court of Toombs County against Jack Mason and Mrs. Columbia Mason. The petition alleged, after amendment, in substance that the defendant Mrs. Mason is the owner of a 1952 Buick automobile which is owned and maintained by her for the pleasure, comfort and convenience of her family including her son, the defendant Jack Mason, a member of her household; that said automobile was furnished to Jack Mason for the purpose for which it was maintained under the family-purpose doctrine; that Jack Maosn had given one Patricia Pelham permission to drive the car, knowing that she was a young child without a driver's permit and incapable and incompetent of operating said motor vehicle; that on March 21, 1954 Patricia Pelham was operating the vehicle on a dirt road at the excessive rate of speed of 70 miles per hour, lost control of the vehicle, and it turned over several times; that at such time the plaintiff was a passenger on the back seat of said car, and that she was severely injured in named particulars by the impact. Paragraph 6 is as follows: It is also alleged that Patricia Pelham was driving the automobile at the time of the collision for the purpose for which it was furnished, that is, for the pleasure, comfort and convenience of the other defendant, Jack Mason.
The defendants each filed general demurrers to the petition which were overruled, and this judgment is assigned as error.
T. Ross, Sharpe, Sharpe & Layne, Lyons, for plaintiff in error.
Nat O. Carter, Wm. T. Darby, Vidalia, for defendant in error.
1. 'The head of a family who keeps and maintains an automobile for the use, comfort, pleasure and convenience of the family is liable for an injury resulting from the negligence of a minor son, a member of the family, while operating the automobile with the knowledge and consent of the owner, for the comfort or pleasure of the family, and thus in pursuance of the purpose for which it was kept and maintained by the parent.' Cohen v. Whiteman, 75 Ga.App. 286, 288, 43 S.E.2d 184, 186. The same rule applies to a wife or mother who is the owner of an automobile which she keeps as a family-purpose car. Goldstein v. Johnson, 64 Ga.App. 31, 12 S.E.2d 92. The family-purpose doctrine does not make the mere fact of family relationship standing alone the 'be-all and the end-all here' but is itself also grounded upon the principles of law of principal and agent, and master and servant. Griffin v. Russell, 144 Ga. 275, 87 S.E. 10, L.R.A.19...
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