Miles v. Harrison, 24029
| Citation | 223 Ga. 352,155 S.E.2d 6 |
| Decision Date | 18 May 1967 |
| Docket Number | No. 24029,24029 |
| Parties | , 25 A.L.R.3d 1310 Thomas E. MILES v. Brennin HARRISON, by Next Friend, et al. |
| Court | Supreme Court of Georgia |
Syllabus by the Court
Where the alleged injury resulted from the incompetent use of a power mower by a 6 year old child of one of the defendants-a joint owner of the mower with the appellant, on the father's premises, and the petition fails to plainly charge that the appellant expressly authorized such use, no cause of action is alleged against him.
A writ of certiorari was granted to review the Court of Appeals in its decision in Miles v. Harrison, 115 Ga.App. 143, 154 S.E.2d 377, wherein a full report of the case is given. The lower court overruled general demurrers of one of two alleged tortfeasors who are joint owners of a riding rotary lawnmower which use by the son of the defendant other than the appellant on his father's premises caused the injury to the plaintiff. As alleged in the petition the mower was purchased for their respective use on their premises, yet the opinion and judgment of the Court of Appeals in affirming the lower court, in effect, in effect, holds the co-owner of the property responsible for all the acts of the other's agent while he has exclusive possession and when the mower was not under the appellant's con trol. Error is cited on the resulting opinion and judgment of that court.
Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Atlanta, for appellant.
R. M. Reed, Berl T. Tate, Marietta, D. B. Howe, Buchanan, Perren & Lane, Dallas, for appellees.
The judgment under review was one on demurrer to the petition, hence the rule requiring a construction against the pleader is applicable. Bailey v. Freeman, 140 Ga. 71, 78 S.E. 423; Lee v. City of Atlanta, 197 Ga. 518, 520, 29 S.E.2d 774; Dumas v. Burleigh, 209 Ga. 241, 243, 71 S.E.2d 545; Hames v. City of Marietta, 212 Ga. 331, 92 S.E.2d 534. That rule requires consideration of what is not alleged or vaguely alleged as well as what is alleged. And, when thus construed, the essentials are evasively or indirectly stated in the form of a general conclusion, courts must hold that since an explicit allegation is not made, it is because it was not true and sustain the demurrer. County Board of Education of Wilcox County v. Board of Commissioners, 201 Ga. 815, 819, 41 S.E.2d 398; Hoffman v. Chester, 204 Ga. 296, 307, 49 S.E.2d 760; Chalverus v. Wilson Manufacturing Co., 212 Ga. 612, 94 S.E.2d 736. This petition contains the general allegation that the mower 'was being used on the premises of Bernard Phillips at the time of the accident complained of with the knowledge and permission of the defendant, Thomas E. Miles.' It is significant that this allegation does not say the defendant Miles expressly authorized this child to use it. The quoted allegation might easily mean that Phillips, the other joint owner, had it in his possession for such use at the time with the knowledge and permission of Miles, the other joint owner. The very next paragraph of the...
To continue reading
Request your trial
-
Slaughter v. Slaughter
...S.E.2d 654, aff'd 214 Ga. 187, 104 S.E.2d 83; Hines v. Bell, 104 Ga.App. 76, 85, 120 S.E.2d 892, or from joint ownership, Miles v. Harrison, 223 Ga. 352, 155 S.E.2d 6, or from cotenancy, Smith v. Inman, 32 Ga.App. 24, 122 S.E. 632. It must appear that the injury resulted from a breach of so......
-
Stovall & Co. v. Tate
...by our law as inherently or per se dangerous. Miles v. Harrison, 115 Ga.App. 143, 146, 154 S.E.2d 377, reversed on other grounds 223 Ga. 352, 155 S.E.2d 6. A rotary power motor is potentially dangerous but is not unique in this sense. As was observed in Jamieson v. Woodward & Lothrop, 101 U......
-
Hill v. Morrison
...is liable for the ensuing consequences. Miles v. Harrison, 115 Ga.App. 143, 154 S.E.2d 377 (1967) (reversed on other grounds, 223 Ga. 352, 155 S.E.2d 6 (1967)). Although the defendants recognized the danger and cautioned their child against it, whether or not mere words were sufficient to r......
-
Koutras v. Lazarus
...law nor equity can place any responsibility upon Miles for what Phillips did and which he was helpless to prevent.' Miles v. Harrison, 223 Ga. 352, 354, 155 S.E.2d 6, 7. To the best of our knowledge the Georgia law on this subject is identical to that of all other jurisdictions which follow......