Stewart v. Stephens

• Decision Date: 20 March 1969
• Docket Number: No. 25065,25065
• Citation: 225 Ga. 185,166 S.E.2d 890
• Parties: Mrs. Winston STEWART v. H. A. STEPHENS.
• Court: Georgia Supreme Court

Page 890

166 S.E.2d 890

225 Ga. 185

Mrs. Winston STEWART v. H. A. STEPHENS.

No. 25065.

Supreme Court of Georgia.

March 20, 1969.

Syllabus by the Court

1. The family-purpose doctrine as applied by this court to automobiles is applicable as well to boats.

2. The Game and Fish Commission exceeded the authority delegated to it by

the General Assembly in adopting the rule that the owner of a watercraft shall be liable for any injury or damage occasioned by the negligent operation of such watercraft, or the failure to observe ordinary care, and it was, as the Court of Appeals held, error to charge this provision.

Joseph E. Cheeley, Buford, Charles H. Hyatt, Decatur, William G. Grant, Atlanta, for appellant.

Nall, Miller, Cadenhead & Dennis, Dennis J. Webb, Atlanta, for appellee.

MOBLEY, Justice.

1. This case is before this court on grant of the writ of certiorari to the Court of Appeals. Stephens v. Stewart, 118 Ga.App. 811, 165 S.E.2d 572.

The plaintiff brought this action for damages for the death of her sixteen-year-old son, who was killed while swimming in the waters of Lake Sidney Lanier, when run into and cut to death by a boat owned by the defendant and operated by his thirteen-year-old daughter. The evidence was that the boat was owned by the father, the defendant, and was kept by him for the comfort, pleasure, and convenience of his family; and that his daughter was operating the boat, accompanied by a companion, for the pleasure and convenience of herself and her companion, by and with the consent of her father.

The Court of Appeals recognized that the family-purpose doctrine, under its decisions and the decisions of this court, is applicable to automobiles, but held that it would not apply to boats. With the latter ruling we disagree.

This court, in Griffin v. Russell, 144 Ga. 275, 87 S.E. 10, L.R.A.1916F, 216; Ann.Cas.1917D, 994; Hubert v. Harpe, 181 Ga. 168, 182 S.E. 167; Levy v. Rubin, 181 Ga. 187, 182 S.E. 176; Evans v. Caldwell, 184 Ga. 203, 190 S.E. 582 (not unanimous decisions); and Golden v. Medford, 189 Ga. 614, 7 S.E.2d 236; Dunn v. Caylor, 218 Ga. 256, 127 S.E.2d 367; and Ferguson v. Gurley, 218 Ga. 276, 127 S.E.2d 462 (full-bench decisions on the question of application of the family purpose doctrine), has held that the doctrine is applicable to automobiles.

The theory of the doctrine, as held by this court and courts of other jurisdictions, is well expressed in Hubert v. Harpe, 181 Ga. 168, 172, 182 S.E. 167, 168 supra, quoted approvingly in Dunn v. Caylor, 218 Ga. 256, 258, 127 S.E.2d 367, supra, as follows: 'A father is under no legal obligation to furnish an automobile for the comfort and pleasure of his child, whether minor or adult; and if he does so, it is a voluntary act on his part. In every such case the question is whether the father has expressly or impliedly made the furnishing of an automobile for such purpose a part of his business, so that one operating the vehicle for the purpose with his consent, express or implied, may be considered as his agent or servant. A child, whether minor or adult, may occupy the position of a servant or agent of his parent, and for his (or her) acts as such the parent may be liable under the general principles governing the relation of master and servant or of principal and agent.' This court, in Evans v. Caldwell, 184 Ga. 203, 204, 190 S.E. 582, supra, makes the observation that: 'The application of the law of master and servant or of principal and agent to the 'family-car doctrine' is not without difficulty. However, the courts of this State are committed to that doctrine.' The court was divided in the Evans case; however, the full-bench decisions in Dunn v. Caylor, 218 Ga. 256, 127 S.E.2d 367, supra, and Ferguson v. Gurley, 218 Ga. 276, 127 S.E.2d 462, supra, apply that rule.

While in each of the cases cited an automobile was the vehicle which the owner provided for the pleasure and convenience of his family, the rule would apply equally as well where the vehicle provided was a boat. This is not an extension of the family purpose doctrine to boats, but is simply the application of the rule of master and servant, or principal and agent, to boats as well as to automobiles. It would be illogical to hold otherwise, for the controlling test is not whether the child is operating an automobile or a boat, but whether she is using the car or boat for a purpose for which the parent provided it, with the permission of the parent, express or implied. See Dunn v. Caylor, 218 Ga. 256, 258, 127 S.E.2d 367, supra, and cases cited.

The evidence clearly establishes that the father provided this boat for the convenience and pleasure of himself and his family and that his daughter was operating the boat on this occasion with his permission for her and her friend's pleasure and convenience.

The Court of Appeals erred in holding that the family-purpose doctrine does not apply in cases...