Roebuck v. Payne

• Decision Date: 02 April 1964
• Docket Number: No. 3,No. 40441,40441,3
• Citation: 136 S.E.2d 399,109 Ga.App. 525
• Parties: Darrell ROEBUCK et al. v. Lecil J. PAYNE
• Court: Georgia Court of Appeals

Page 399

136 S.E.2d 399

109 Ga.App. 525

Darrell ROEBUCK et al. v. Lecil J. PAYNE.

No. 40441.

Court of Appeals of Georgia, Division No. 3.

April 2, 1964.

Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Atlanta, for plaintiff in error.

Merritt & Pruitt, Glyndon C. Pruitt, Buford, for defendant in error.

Syllabus Opinion by the Court

PANNELL, Judge.

1. 'Where an infant is a party defendant in a civil action it is ordinarily necessary to the validity of the judgment that the court appoint a guardian ad litem to protect his interests. An estoppel in pais to urge the defense, however, may arise where, as here, the fact of infancy is unknown to the court or the opposing parties, no facts are shown which would reasonably cause them to question the defendant's age, and the defendant, with knowledge of his rights and of the ignorance of the court and the parties to the case, appears, pleads, and actively participates in the trial as the leading witness for the defense, being at all times represented by counsel. Silence will constitute deception where there is a duty to speak. Such a duty arises where the machinery of the law would otherwise be subverted to a purpose not intended, that of giving one side two chances for a verdict in his favor where the other side has only one.' Smith v. Lamb, 103 Ga.App. 157, 118 S.E.2d 924. While waivers or estoppels are not ordinarily imputable against infants, the instant case shows an estoppel in pais based on fraud and deceit by the infant who has reached an age of discretion when fraud can be imputed against him. Brown v. Anderson, 186 Ga. 220(1), 197 S.E. 761. The rule would not be altered by the fact that the minor had, in the presence of the attorney for plaintiff, testified as to his age (although incorrectly) which testimony showed he was a minor at the time of service, but of age at the time of taking the testimony which was several months before the trial, and particularly so where the attorney for the defendants discovered they were minors during the trial and before the verdict. The trial judge did not err in overruling the motion to set aside the verdict which was made on the grounds that the defendants were minors at the time of service and the time of trial.

2. 'Knowledge of the driver's incompetency is an essential element of the rule which holds an owner liable for furnishing his automobile to an incompetent driver. See Holt v. Eastern Motor Co., 65 Ga.App. 502, 508, 15 S.E.2d 895; Graham v. Cleveland, 58 Ga.App. 810, 200 S.E. 184;' Marques v. Ross, 105 Ga.App. 133, 139, 123 S.E.2d 412, 417; NuGrape Bottling Co v. Knott, 47 Ga.App. 539(1), 171 S.E. 151; and such knowledge must be actual rather than constructive, Graham v. Cleveland, 58 Ga.App. 810, 200 S.E. 184; Hines et al. v. Bell, 104 Ga.App. 76(3-b), 120 S.E.2d 892, disapproving language to the contrary in Holt v. Eastern Motor Co., 65 Ga.App. 502, 508, 15 S.E.2d 895.

'Constructive notice does not possess in its own essential nature the character assigned to it by law. From the exigent presumptive inferences which the law permits to be deduced from circumstantial evidence, and for reasons of public policy, the law sometimes imputes constructive knowledge of a fact or condition. But that is, after all, a knowledge or notice established in the mind of the law, in consequence of the way in which the law interprets the evidentiary facts upon which the presumption of knowledge depends, and is a creation of the law in its act of construing facts, conduct, circumstances, or instruments. Constructive notice of a fact, for that reason, is not the equivalent of actual knowledge,' so as to show negligence on the part of an owner of an automobile upon its being driven with consent of the owner by an incompetent driver, merely because the owner, by the exercise of reasonable care and diligence, could have ascertained the fact of the incompetency of the driver. Wiley v. Rome Ins. Co., 12 Ga.App. 186(2), 76 S.E. 1067. Under such circumstances, Code § 37-116 which provides, 'Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact, due to negligence, shall be equivalent to knowledge, in fixing the rights of parties,' and the cases thereunder holding that 'negligent ignorance' is equivalent to knowledge (Marietta Trust & Banking Co. et al. v. Faw, 31 Ga.App. 507 508(3a), 121 S.E. 244; and Schmidt v. Block, 76 Ga. 823) have no application.

3. '[W]hile it may be difficult to prove the existence of actual knowledge on the part of one who denies it (because in such case direct evidence is not attainable, unless he admits it), nevertheless even actual knowledge can be demonstrated by the proof of circumstances which will admit of no other reasonable conclusion than that the party who asserts his ignorance of a given fact actually knew it, and that his denial is untrue.' Wiley v. Rome Ins. Co., 12 Ga.App. 186, 190, 76 S.E. 1067, 1069; National Life & Accident Ins. Co. v. Fischel, 62 Ga.App. 645, 646(1), 9 S.E. 192.

(a) While general reputation or notoriety of a proven fact may be admissible in evidence, to be considered by the jury, with other evidence, on the question of notice of such fact, such 'reputation or notoriety in the community is not itself notice.' Bush & Hattaway et al. v. McCarty Co., 127 Ga. 308, 313(5), 56 S.E. 430; Askew v. Silman, 95 Ga. 678(4), 22 S.E. 573.

(b) That a person had been warned for speeding, being itself insufficient to prove such person was an incompetent and habitually reckless driver (Marques v. Ross, 105 Ga.App. 133, 139, 123 S.E.2d 412; see also, East Tenn., Va. & Ga. Ry. Co. v. Kane, 92 Ga. 187, 188(4), 18 S.E. 18, 22 L.R.A. 315), knowledge of such facts would not be actual knowledge that such person is an incompetent and habitually reckless driver.

(c) Proof of statements made in the hearing of a party or under circumstances where he could have heard, may authorize an inference that he did hear such statements (Dodys v. State, 73 Ga.App. 483(3), 37 S.E.2d 173; Jackson v. Moultrie Prod Credit Associate, 76...