Miles v. Harrison

• Decision Date: 20 January 1967
• Docket Number: No. 42439,No. 3,42439,3
• Citation: 115 Ga.App. 143,154 S.E.2d 377
• Parties: Thomas E. MILES v. Brennin HARRISON, by Next Friend et al
• Court: Georgia Court of Appeals

Page 377

154 S.E.2d 377

115 Ga.App. 143

Thomas E. MILES v. Brennin HARRISON, by Next Friend et al.

No. 42439.

Court of Appeals of Georgia, Division No. 3.

Jan. 20, 1967.

Rehearing Denied Feb. 3, 1967.

Certiorari Granted March 23, 1967.

Judgment Reversed May 18, 1967. See 155 S.E.2d 6.

Syllabus by the Court

1. The allegations of the petition are sufficient to show a cause of action against the owner of a riding rotary lawn mower for the consequences of his act in knowingly permitting the son of the other owner, age 6, to operate the mower without adult supervision under conditions likely to produce injuries to a third person, as shown in this case by the operation in an area where rocks had washed or been thrown from the owner's driveway onto the property of the child's father, and were known to be present on the lawn, one of which the mower blades struck and propelled into the eye of another child, causing loss of sight.

2. Negligence may be alleged to show the injurious conduct of a child, age 6, in support of an action against another who bears responsibility on account of the conduct of the child, even though the child cannot be charged with contributory negligence to defeat or diminish recovery in an action in his behalf, or with negligence to support an action directed against him.

3. In an action against the owner of a riding rotary lawn mower, based on injuries caused while it was being used by a child, age 6, allegations to the effect that the mower was being used with the knowledge and permission of the owner are proper and essential.

4. Allegations showing that the owner of a rotary riding lawn mower was negligent in failing to anticipate that a child, age 6, might operate the mower in an area where rocks were present on adjoining property, and that the owner was negligent in permitting rocks to be deposited there from his driveway, raised issues for jury determination of actionable negligence.

5. The trial judge did not err in overruling general and special demurrers, including motions to strike parts of the petition, of the owner of the mower who was not the parent of the child operator.

Brennin Harrison, a minor acting by and through Louise Harrison, his mother, as next friend, brought this action in Cobb Superior Court against Thomas E. Miles and Bernard Phillips, to recover damages for the loss of his right eye. The petition shows that on March 18, 1963, defendant Miles had invited his sister, Louise Harrison, to visit his home. Upon arrival she parked her automobile in the driveway at the Miles home. Mark Phillips, age 6, the son of defendant Bernard Phillips, was operating a Jacobsen riding rotary lawn mower toward the Harrison vehicle parked on the adjacent driveway about six feet from the boundary, in an attempt to scare Brennin Harrison, age 8, who was trying to re-enter his mother's automobile. A number of rocks had been washed or thrown from the Miles' driveway onto the Phillips' property, and the rotary blades of the mower struck and threw one of these rocks, causing it to hit and injury plaintiff's right eye, which had to be removed and replaced by an artificial eye. Thomas E. Miles and Bernard Phillips are the joint owners of the mower, and it was being used without adult supervision by Mark Phillips, with the knowledge and permission of the owners. Specific acts of negligence against Miles are alleged, inter alia, in failing to prohibit the use of the mower by Mark Phillips because of his age and lack of experience, in permitting the use of a dangerous instrumentality by Mark Phillips without requiring close supervision, in failing to anticipate the negligence of Mark Phillips in operating the mower in the area where rocks were present on the Phillips' property, and in permitting rocks from his driveway to be washed or otherwise deposited on the Phillips' property, knowing the likelihood of injury by operation of the lawn mower in the area. Further acts of negligence are alleged in respect to Bernard Phillips, under the doctrine of respondeat superior as to his son, and in furnishing and allowing his son to operate the mower without adult supervision, and in failing to anticipate that his son would operate the mower in the area where rocks were present.

The case comes to this court on the appeal of Miles to the overruling of his general and special demurrers, including motions to strike parts of the petition.

Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., K. W. Gilchrist, Atlanta, for appellant.

R. M. Reed, Marietta, D. B. Howe, Buchanan, Perren & Lane, Dallas, Berl T. Tate, Marietta, for appellee.

JORDAN, Judge.

1. 'A person who intrusts another with a dangerous instrument or article, under such circumstances that he has reason to know that it is likely to product injury, is liable for the natural consequences of his act.' 65 C.J.S. Negligence § 69, p. 949. Succinctly stated, the petition in this case against defendant Miles is predicated on the theory that Miles is liable for the consequences of his act in knowingly permitting the use of his rotary lawn mower by another under foreseeable conditions whereby the mower while so being used was a dangerous instrumentality likely to produce injuries. This court has held that a petition against the owner of a truck for personal injuries sustained by its negligent operation is good against a general demurrer, where the owner knowingly permitted its operation by an inexperienced, reckless, and incompetent driver, age about 13, having reason to foresee that such a driver would operate the vehicle in a manner dangerous and menacing to persons using the streets. NuGrape Bottling Co. v. Knott, 47 Ga.App. 539, 171 S.E. 151. To the same effect, see Burks v. Green, 85 Ga.App. 327, 329, 69 S.E.2d 686, and cases cited therein. Actual and not constructive knowledge is essential. Hines v. Bell, 104 Ga.App. 76, 82, 120 S.E.2d 892. The Burks case, supra, at pp. 330, 331, 69 S.E. 686, recognized that although an automobile is not per se a dangerous instrumentality (Fielder v. Davison, 139 Ga. 509, 77 S.E. 618), it could become one in the hands of an incompetent operator, and that liability of the owner arises because of his negligence in permitting the use under such conditions, and, as was also true in the NuGrape case, supra, not by application of the doctrine of respondeat superior to the relationship of the owner and operator. See 60 C.J.S. Motor Vehicles § 431, p. 1057. For application of these principles we see no distinction between an automobile and a 'Jacobsen riding rotary lawn mower' described in the petition in the present case. Either may be a dangerous instrumentality when used by an incompetent operator, and the owner becomes liable for the consequences of his negligent act in knowingly permitting the use by such an operator. This situation distinguishes itself from that in John Deere Plow Co. v. Johnson, 98 Ga.App. 36, 105 S.E.2d 33, involving deficiencies in pleading a cause of action when an unknown child or children started an unattended tractor. The case of Graham v. Cleveland, 58 Ga.App. 810, 200 S.E. 184, cited and relied upon by defendant Miles as authority to reverse the ruling on general demurrer, for want of agency between the operator of the vehicle, a parking lot employee, and the owner, and lack of knowledge that the driver was incompetent, is inapplicable to the present case, except to the extent that the opinion (p. 815, 200 S.E. 184) recognizes owner liability for the operation of an automobile outside the doctrine of respondeat superior when with actual knowledge the owner permits operation by an operator, incompetent by reason of age, want of experience, physical or mental condition, or recklessness. As against general demurrer the allegations of the petition in the case sub judice are sufficient to show that Miles, as one of the owners of the Jacobsen riding rotary lawn mower, is liable for the consequences of his act in knowingly permitting the son, age 6, of the other owner, at least presumptively incompetent by reason of his age, to operate the mower under conditions likely to produce injury, that is, without adult supervision and with knowledge of conditions whereby the mower might propel rocks and cause injuries.

In reaching this result we have also considered the case of Herrin v. Lamar, 106 Ga.App. 91, 126 S.E.2d 454, an action on behalf of a minor against the parents of another minor for injuries caused when the minor plaintiff was run over and injured by a riding rotary lawn mower being operated by defendant's minor daughter, age 10, in the presence of and under instructions of the defendant wife. In that case this court determined that the allegations of negligence in permitting such a child of tender years to use the mower, knowing of the presence of the other child, and in furnishing such a mower to the daughter and permitting her to use in under the circumstances shown, where the daughter clearly failed to exercise ordinary care, supported a cause of action against the parents good against a general demurrer, under...