Phillips v. Dixon

• Decision Date: 12 February 1976
• Docket Number: No. 30246,30246
• Citation: 223 S.E.2d 678,236 Ga. 271
• Parties: Henry PHILLIPS et al. v. Deborah DIXON.
• Court: Georgia Supreme Court

Page 678

223 S.E.2d 678

236 Ga. 271

Henry PHILLIPS et al. v. Deborah DIXON.

No. 30246.

Supreme Court of Georgia.

Feb. 12, 1976.

John A. Dickerson, Toccoa, for appellants.

Whelchel, Dunlap & Gignilliat, George L. Simpson, II, Gainesville, for appellee.

HILL, Justice.

Certiorari was granted in this case to decide whether the owner of a family purpose vehicle is liable for the negligent acts of a third person driving the vehicle while accompanied by a member of the owner's family even though the owner had instructed the family member not to allow others to operate the vehicle.

Henry Phillips was the owner of a family purpose automobile which was in a collision in which Deborah Dixon, the plaintiff, was injured. The evidence, by affidavits, is uncontradicted that Phillips had given permission to his son to use the car with explicit instructions not to allow anyone else to drive. At the time of the collision the car was being used for a family purpose and the son was in the car, but a third person was driving, contrary to the owner's instructions. The plaintiff brought suit for damages against the owner and the son. The trial court granted summary judgment for the owner. On appeal, the Court of Appeals reinstated the suit as against the owner, Dixon v. Phillips, 135 Ga.App. 161, 217 S.E.2d 331 (1975), and we granted certiorari.

In Georgia, when an automobile is maintained by the owner for the use and convenience of his family, such owner is liable for the negligence of a member of the family having authority to drive the car while it is being used for a family purpose. Griffin v. Russell, 144 Ga. 275, 87 S.E. 10 (1915); Cohen v. Whiteman, 75 Ga.App. 286, 288, 43 S.E.2d 184 (1947). Although a parent generally is not liable for the torts of a child, the family car doctrine, which arose from the principles of agency, constitutes an exception to this rule. Griffin v. Russell, supra. The policy behind the origin of the doctrine was the ever increasing number of automobile collisions and the frequency with which the negligent driver was found to be judgment proof. In the case of a family at least, this factor was minimized by finding liability as to the owner of the car who allowed family members to use the car for family pleasures. The recovery of the injured plaintiff then did not depend on the financial position of the family member who happened to be driving. Mechem, Outlines of the Law of Agency (4th ed. 1952); 6 Blashfield Automobile Law and Practice § 255.21.

In the case before us, however, the driver was not authorized by the owner to drive the car; the driver's authorization came from the son. The defendant contends that the Georgia law of agency, from which the family car doctrine arose, provides that an agent may not delegate his authority to another unless he has been specifically empowered to do so. Code Ann. § 4-103. In Carter v. Bishop, 209 Ga. 919(2), 76 S.E.2d 784 (1953), the court held that an employer was not liable for the negligence of a third party driving his vehicle if the employer entrusted his employee with the vehicle and instructed him not to permit anyone else to drive, even though the employee was riding in the vehicle and it was being operated by the third party for the benefit of the owner. See also Cowart v. Jordan, 75 Ga.App. 855, 44 S.E.2d 804 (1947). The defendant argues that the rules of agency are applicable in family car cases (i.e., that the family car doctrine is coextensive with the doctrine of respondeat superior), and that under Code Ann. § 4-103, Carter v. Bishop, supra, and other agency decisions, the owner is not liable in the case at bar.

Plaintiff argues that, although it is true that many of the cases involving the family car doctrine, including the Court of Appeals opinion in this case, state that the doctrine is but an extension of the law of principal and agent to the family, in reality the doctrine has become a body of law of its own separate from that of agency. Plaintiff contends that after maturing, the family car doctrine has developed along lines of its own.

Thus, we are required to examine the limits of liability created by the family car doctrine and compare those limits with the limits of liability created by the doctrine of respondeat superior. In Evans v. Caldwell, 184 Ga. 203, 190 S.E. 582 (1937), the parent was held liable for the negligence of her son in driving the family car to a second location after the parent had expressly limited the place the son could go, and the son had disobeyed those instructions. Thus, disobedience of the parent's instructions does not necessarily negate application of the family car doctrine. See also Battle v. Kilcrease, 54 Ga.App. 808(6), 189 S.E. 573 (1936).

In Golden v. Medford, 189 Ga. 614, 7 S.E.2d 236 (1940), in answer to a certified question this court held that where the wife owned a family purpose car and permitted her husband to ride in and direct the operation of the car, and without the owner's knowledge or express consent he permitted a third person to drive the car under his direction, supervision and control, the owner was liable for damages caused by the negligence of the driver. This court assumed, however, that the husband had general authority to direct others in operating the car but did not have express consent to let this particular person drive the car.

In Cohen v. Whiteman, 75 Ga.App. 286, 43 S.E.2d 184 (1947), the father had permitted his son to drive the family purpose car, the son had permitted a third person to drive, the collision occurred while the son was in the car, but it was not show that the father had authorized the third person to drive. The court held that: '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.' Thus, a father is liable under the family car doctrine for the negligence of a third person driving the vehicle even though the father did not authorize the third person to drive, whereas an employer would not be liable under those same circumstances. Code Ann. § 4-103, supra.

Myrick v. Alexander, 101 Ga.App. 1, 112 S.E.2d 697 (1960), and Myrick v. Sievers, 104 Ga.App. 95, 121 S.E.2d 185 (1961), both are on 'all fours' with Cohen, supra, and reached the same result. In the Alexander case, Chief Judge Felton (later Justice Felton) dissented, citing the decision of this court in Carter v. Bishop, supra, and saying (101 Ga.App. 6, 112 S.E.2d 701): 'I feel very strongly that protection should be given to the public in circumstances identical or similar to those in this case, but since the liability of the furnisher of a family-purpose automobile is based solely on the law of agency, I do not think it is in the province of the courts to provide the desired protection so long as the protection given is bottomed on the law of agency.'

Although Code § 4-103 provides that an agent may not delegate his authority to another, unless specially empowered to do so, the foregoing cases hold that a family member may delegate his authority to drive a family car to another even though not specially empowered to do so, and the owner will be held liable. Thus it appears that the family car doctrine, although it originated from the law of agency, does not always follow the confines of the law of agency.

The defendant argues that to hold the owner liable under the family car doctrine where a third person is driving contrary to the owner's instructions is to reinstate Ga.L.1955, pp. 454, 455, Code Ann. § 68-301, which was declared unconstitutional in Frankel v. Cone, 214 Ga. 733, 107 S.E.2d 819 (1959). That Act provided: 'Every owner of a motor vehicle operated upon the...