Stroud v. Willingham
| Decision Date | 27 April 1972 |
| Docket Number | No. 46768,No. 2,46768,2 |
| Citation | 190 S.E.2d 143,126 Ga.App. 156 |
| Parties | Melinda STROUD v. William R. WILLINGHAM |
| Court | Georgia Court of Appeals |
Syllabus by the Court
Where an infant by next friend brings an action against a defendant seeking to recover for alleged injuries received as the result of the alleged negligent operation of an automobile by the defendant, the defendant may set up as a defense to the action that the negligence of the father of the child was the sole proximate cause of the injuries received; and such defense does not impinge upon the rule in Code § 105-205, that the negligence of a parent is not imputable to the child, for such defense necessarily excludes the defendant's negligence, if any, as a proximate cause contributing to the injuries.
Burt, Burt & Rentz, D. D. Rentz, Van Cheney, Albany, for appellant.
Landau, Davis & Farkas, Edmund A. Landau, Jr., Albany, for appellee.
Melinda Stroud, by next friend, brought an action against William R. Willingham seeking to recover damages for injuries sustained when 'defendant negligently drove a 1963 Chevrolet automobile into and over plaintiff.' The defendant's answer, as amended, alleged as a fourth and fifth defense the following: (Emphasis supplied) and (Emphasis supplied.) The plaintiff moved to strike 'the paragraph designated as the fourth defense, and the paragraph designated as fifth defense upon the grounds that said fourth defense and said fifth defense fail to set forth a defense in law to the plaintiff's complaint.' The court overruled the motion and plaintiff, with a proper certificate for review, appealed to this court.
It has been many times held that where the sole proximate cause of an injury to the plaintiff is the negligence of someone other than the defendant, there can be no recovery against the defendant, although the defendant may have been guilty of negligence. See Barnes v. Holcomb, 35 Ga.App. 713(1), 134 S.E. 628. Appellant contends, however, that since the negligence of the father in the present case is not imputable to the child plaintiff, this defense is not available to the defendant, relying upon Code section 105-205 and the cases from which the Code section was codified. East Tenn., Va. & Ga. Rwy Co. v. Markens, 88 Ga. 60, 62, 13 S.E. 855 and Atlanta & Charlotte Air-Line Rwy Co. v. Gravitt, 93 Ga. 369, 20 S.E. 550, and particularly the latter, on page 378, 20 S.E. on page 558 where it was said: : In an older case, ferguson v. Columbus & Rome Rwy., 77 Ga. 102(2, 3) the Supreme Court held:
A reading of the Gravitt case discloses that the purpose of the rule adopted in this case (Section 105-205) was not designed to make one liable to an infant who would not otherwise be so liable under the ordinary rules of law, but was merely to rid the infant of the burden of being charged with the negligence of the parent as if such negligence were its own. And, therefore, the negligence of the parent, not imputable to the child, cannot be used as a bar or defense to the defendant's causative negligence. However, where the negligence of the parent is the sole proximate cause of the injury to the child, the child cannot recover from the defendant. This rule of sole proximate cause on the part of another by its own terms presupposes no causative negligence on the part of the defendant; therefore, no negligence is imputed to the child to be used to bar or to defend against defendant's causative negligence. The Markens case, 88 Ga. 60, 62, 13 S.E. 855, one of the cases from which Section 105-205 was codified, held: 'In the case of a female passenger in a public hack, a charge to the jury as follows was correct: 'I do charge you that the negligence of the driver, if he was negligent, is not imputable in law to her. A person who hires a public hack and gives the driver directions as to the place where he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for his acts of negligence, or prevented from recovering against the railroad company for injuries suffered from a collision of its train with the hack, if the same was caused by the concurring...
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