Myrick v. Alexander

• Decision Date: 05 January 1960
• Docket Number: No. 37978,2,Nos. 1,37978,s. 1
• Citation: 101 Ga.App. 1,112 S.E.2d 697
• Parties: P. E. MYRICK v. E. D. ALEXANDER, Jr., Next Friend
• Court: Georgia Court of Appeals

Page 697

112 S.E.2d 697

101 Ga.App. 1

P. E. MYRICK v. E. D. ALEXANDER, Jr., Next Friend.

No. 37978.

Court of Appeals of Georgia, Division Nos. 1, 2.

Jan. 5, 1960.

Syllabus by the Court

The petition set forth a cause of action against the defendant and was not subject to the special demurrer argued in this court.

Earl D. Alexander, Jr., as next friend and father of Earl D. Alexander, III, a minor, sued P. E. Myrick, P. E. Myrick, Jr., and Willard Kirkland to recover for injuries allegedly sustained when an automobile driven by Kirkland under the authority of Myrick, Jr., the son of P. E. Myrick, and owned by P. E. Myrick as a family purpose vehicle, collided with an automobile in which Earl D. Alexander, III was a guest. By amendment the plaintiff struck Myrick, Jr. and Kirkland as parties defendant leaving Myrick as the sole defendant. The demurrers to the petition as well as a motion to strike P. E. Myrick as a party defendant were overruled and it is to such judgments that the defendant P. E. Myrick now excepts.

Bouhan, Lawrence, Williams, Levy & McAlpin, Lewis, Wylly & Javetz, Savannah, for plaintiff in error.

Grayson & Grayson, Spence M. Grayson, Savannah, for defendant in error.

NICHOLS, Judge.

1. The petition alleged that the automobile being driven by Kirkland was owned by P. E. Myrick, was maintained as a family purpose vehicle and was in the custody and control of P. E. Myrick, Jr., who while having said control permitted said automobile to be driven and operated by Kirkland while he Myrick, Jr. was riding in it.

No contention is made by the defendant that the allegations as to how the collision occurred were insufficient to set forth a cause of action, and the only contention made is that Myrick, Jr. could not delegate his authority to drive his father's automobile to Kirkland so as to bind him, Myrick, for the negligent operation of his automobile by Kirkland.

Many cases have been written involving the rule variously called the 'family-purpose doctrine,' 'family-service rule,' 'family-automobile doctrine,' or 'family-car rule,' and a very complete statement of the rule or doctrine as well as specific examples of its applicability and nonapplicability may be found in Cohen v. Whiteman, 75 Ga.App. 286, 288, 43 S.E.2d 184, 185, which case is literally on all fours with the case under consideration. In that case an automobile owned by Frank Whiteman as a 'family-purpose automobile' was so being used by his son, Alvin Whiteman, to make a trip from Atlanta to Athens, Georgia, and while so being used Alvin Whiteman, the owner's son, permitted a third person to operate or chauffeur the automobile and such third person was actually operating or driving the automobile at the time of the collision wherein the plaintiff's son was killed. The defendant's son, at the time of the collision, was in the automobile retaining control, authority and direction over it although he was not himself acting as the operator or chauffeur, and the court held: 'A father who keeps and maintains an automobile for the use, comfort, pleasure and convenience of his family, including a minor son, is responsible for injuries resulting from negligence of a third person whom the son permits to drive, where the son remains in the automobile and retains control, authority and direction over it, and where the automobile is still being used in furtherance of the purposes of a family car.' Cohen v. Whiteman, 75 Ga.App. 286, 43 S.E.2d 184, supra.

In the case sub judice the defendant Myrick owned a 'family-purpose' automobile which was being so used by his son, Myrick, Jr., and who had on the occasion out of which the injuries arose permitted Kirkland, a third party to operate or chauffeur the automobile while he (Myrick, Jr.), was in the automobile retaining control, authority and direction over it, as was Alvin Whiteman in the Cohen case, supra. Accordingly, the present case is controlled by such case and the judgment of the trial court overruling the defendant's general demurrer and motion to strike him as a party defendant was not error for any reason assigned.

The cases relied upon by the defendant to support his contention that he is not liable where one other than a member of his family is operating the automobile are cases where the member of the family has permitted a third person to use the automobile for the pleasure and convenience of the third person, where for instance the automobile was loaned to the third person and no member of the owner's family was receiving any benefit and it was held that a mere bailment existed (see Mason v. Powell, 92 Ga.App. 496, 88 S.E.2d 734), or where the automobile was not maintained as a 'family-purpose' automobile and authority was given by a member of the owner's family to a third party to use the automobile when no one had ever driven the automobile without the express permission of the owner and it was held that the 'family-purpose doctrine' did not apply Samples v. Shaw, 47 Ga.App. 337, 170 S.E. 389.

2. The defendant contends that the trial court erred in overruling the following demurrer to the petition: 'Defendants demur specially to the allegations of paragraph 4 of said petition with reference to Willard Kirkland having driven said automobile with the permission of P. E. Myrick, Jr. earlier in the evening to Wilmington Island at a reckless and excessive rate of speed of 120 miles per hour on the ground that said allegation is inapplicable in that the collision did not occur on the trip to Wilmington Island, and defendants move...