Stapleton v. Stapleton, 33822

• Decision Date: 07 March 1952
• Docket Number: No. 2,No. 33822,33822,2
• Citation: 85 Ga.App. 728,70 S.E.2d 156
• Parties: STAPLETON v. STAPLETON
• Court: Georgia Court of Appeals

Page 156

70 S.E.2d 156

85 Ga.App. 728

STAPLETON v. STAPLETON.

No. 33822.

Court of Appeals of Georgia, Division No. 2.

March 7, 1952.

Rehearing Denied March 20, 1952.

Syllabus by the Court.

An employer is liable to an unemancipated minor child of his employee for an injury received by such child due to or caused by the employee's negligence while acting in the service of the defendant, in the operation of an automobile belonging to him even though such infant could not maintain an action against her parent for the tortious act.

Sam Stapleton, the father of Carol Stapleton, an infant, age five years, as her next friend, brought suit in Glascock Superior Court against Maurice Stapleton, to recover damages for certain personal injuries sustained by the child. The petition showed substantially these facts: On January 4, 1950, the defendant was the owner of a 1940 Chevrolet automobile, which he had placed in the possession of Mrs. Marie Stapleton, who was then and there acting as his servant and agent in the transaction of certain business affairs for him. On said day, while operating this car and while acting as the servant and agent of the defendant, said Mrs. Marie Stapleton had in this car with her Carol Stapleton, and driving this car out of the driveway, she drove the same in a careless and negligent manner, in that she was driving the car at too high a rate of speed in reverse, and she cut the car sharply without notice to Carol Stapleton, throwing Carol out of the car and onto the ground, and drove the right front wheel of the car upon the body of the child, thereby injuring her. Such injuries were the direct result of the negligent operation of the car by Mrs. Marie Stapleton, while acting 'as the agent and servant of the said Maurice Stapleton' in the particulars set forth.

By amendment the plaintiff alleged that her injuries were the direct result of the negligent operation of the defendant's automobile by Mrs. Marie Stapleton, the mother of the plaintiff, while said Mrs. Stapleton was acting as the servant and agent of Maurice Stapleton, the defendant.

The defendant demurred generally to the petition, as amended, and moved to strike the same on the ground that no cause of action was stated against him, in that the injury to the plaintiff was the result of the negligence of her mother, and under the public policy of this State no action could be maintained by her against her mother, and, therefore, none could be maintained against this defendant.

The court overruled the defendant's demurrer and motion to strike, and to this judgment the defendant excepts.

Fulcher & Fulcher, Augusta, for plaintiff in error.

Harris, Chance & McCracken, Augusta, for defendant in error.

GARDNER, Judge.

This is a suit brought by a five year old infant, through her father as next friend, against the employer of her mother, alleging that the defendant furnished to the mother as his employee an automobile; that the plaintiff was placed by her mother in the defendant's automobile at a time when the mother was acting as the defendant's agent or servant in the use and operation of this car; and that the mother negligently operated the car and thereby caused the plaintiff to be injured. It is true that an unemancipated child, injured by reason of the negligent operation of an automobile by a parent of the child, cannot in this State recover damages from the negligent parent for such injury. Bulloch v. Bulloch, 45 Ga.App. 1, 163 S.E. 708; Chastain v. Chastain, 50 Ga.App. 240, 241, 177 S.E. 828. Such an action would be against the public policy of this State which is to keep the families intact, and this policy frowns upon proceedings which tend to disrupt the family tranquility. However, in Wright v. Wright, 85 Ga.App. ----, 70 S.E.2d 152, this court has ruled that an unemancipated infant may recover damages of a parent for injuries sustained because of a wilful or malicious tort committed by the parent. The present case does not involve a wilful or malicious wrong or tort committed by the mother upon the plaintiff, her child, but is a case of simple negligence on the part of the mother, resulting in injury to her child. Neither does this case involve a situation where an emancipated child brings an action against the parent to recover for personal injuries caused by the negligence of the parent in the operation of an automobile. See Fowlkes v. Ray-O-Vac Co., 52 Ga.App. 338, 183 S.E. 210.

From the above authorities, the infant plaintiff, under the allegations of the petition, could maintain no action against her mother for the injuries which she sustained as a result of the mother's negligence in driving this automobile. However, the present action is not one brought against the negligent parent, but is an action against the employer of the parent, and the allegation is that the child was injured by the negligent operation of said car by the parent-employee, while acting as the agent or servant of the defendant in operating said automobile. 'Every person shall be liable for torts committed by his * * * servant, by his command or in the prosecution and within the scope of his business, whether the same shall be by negligence or voluntary.' Code, § 105-108. It is under this statute that the present suit is brought. The plaintiff seeks to hold the defendant, the employer or master, liable under the doctrine of respondeat superior. 'If the owner of an automobile is sued for damages on account of an injury caused by it while driven by his chauffeur (servant), the rules of law touching master and servant and the liability of the former for the act of the latter are to be applied.' Fielder v. Davison, 139 Ga. 509, 77 S.E. 618, 619. There is no question here of a tort by the servant, where the same had been previously directed by the employer or subsequently ratified by him. 'For injuries caused by the negligence of an employe not directed or ratified by the employer, the employe is liable because he committed the act which caused the injury, while the employer is liable, not as if the act was done by himself, but because of the doctrine of respondeat superior,...