Tolbert v. Murrell

• Decision Date: 31 October 1984
• Docket Number: No. 41164,41164
• Citation: 253 Ga. 566,322 S.E.2d 487
• Parties: TOLBERT et al. v. MURRELL et al.
• Court: Georgia Supreme Court

Page 487

322 S.E.2d 487

253 Ga. 566

TOLBERT et al. v. MURRELL et al.

No. 41164.

Supreme Court of Georgia.

Oct. 31, 1984.

Rehearing Denied Nov. 27, 1984.

Joe L. Anderson, Austell, for Tammy F. Tolbert et al.

David F. Root, Dennis, Corry, Webb, Carlock & Williams, Bertram D. Waln, Hamilton, Waln & Carmichael, Atlanta, for Ann J. Murrell.

HILL, Chief Justice.

This case raises three issues: (1) the constitutionality of a part of our wrongful death act; (2) the validity of substituted service of process upon a person in military service on duty outside the state; and (3) the scope of the family purpose doctrine. We will consider the constitutional issue last.

While crossing the street on December 5, 1980, Adolphus Tolbert was struck and killed by an automobile driven by 17 year old Todd Murrell. The vehicle was registered to and insured by Todd's mother, Ann Murrell. The deceased's widow, Joann Tolbert, received no-fault survivor's benefits from Ann Murrell's insurance carrier. In addition, the widow signed a release of all claims arising from her husband's death for which she received $1,500.

Subsequently, Tammy and Tony Tolbert, children of the deceased by a previous marriage, brought suit for wrongful death against Todd and Ann Murrell, contending that Ann Murrell was liable under the family purpose doctrine. Their stepmother, Joann Tolbert, was joined as an involuntary plaintiff.

The superior court dismissed the action against Todd Murrell finding that Todd had not been properly served. Ann Murrell then moved for summary judgment, pointing out that OCGA § 51-4-2 provides that the cause of action for wrongful death of a husband and father rests in the widow, if there be one, not in the children; i.e., the law does not allow children to sue for the wrongful death of their father if he was survived by his wife. Ms. Murrell also argued that the family purpose doctrine is not applicable here. Plaintiffs urged that OCGA § 51-4-2, supra, denies them the equal protection of law guaranteed by our state and federal constitutions. The superior court granted the motion for summary judgment and the plaintiffs appeal.

1. Todd Murrell was dismissed from this action because the trial court found that he had not been properly served. The facts show that at the time of the accident Todd Murrell was a senior in high school living at home with his mother. Thereafter he left school and enlisted in the Navy and was stationed at several places outside Georgia. There is evidence that the son was at home with his mother on a 30-day leave in November, 1982, and that it was his practice to return there whenever he was given leave from the Navy. The son was assigned to the USS Ranger out of San Francisco when his mother was served with the complaints against both of them at her home on November 30, 1982.

OCGA § 9-11-4(d)(7) requires that the complaint and summons be served on "the defendant personally, or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process." (Emphasis supplied.) ¹ The emphasized language is known as "substituted" or "notorious" service. Weltner, Process and Service, §§ 7-1, 9-1 (1982). The plaintiffs rely on it to support service, while Todd Murrell argues such service was insufficient because he no longer lived at his mother's home when the suit was served. In his accompanying affidavit, he stated only that he has not resided at his mother's home since enlisting in the Navy in May, 1981, that since that time he has resided outside the State of Georgia, and that his mother's home is not his dwelling or usual place of abode. His mother filed a similar affidavit. We view statements as to place of residence as conclusions of fact and law.

The issue then is whether or not service of process upon a serviceman's mother at her home while the son, who formerly lived there, is serving an enlistment in the military outside the state satisfies the statutory requirement of "leaving copies thereof at his dwelling house or usual place of abode."

In 2 Moore's Federal Practice, Par. 4.11 at p. 4-122, we find the following: "Where a party maintains a residence with a member of his family, but travels about or lives at various other places, the permanent residence may, on the facts, be his usual place of abode. This leads to a consideration of the situation where the party is in military service. Here a distinction is often made between one temporarily in service, with the intention of returning home after discharge, and one who is a career serviceman, particularly where the serviceman has set up a private home where he is stationed. Thus, in the first situation service by leaving process at defendant's family home is valid, although defendant is in military service and is stationed elsewhere, provided his whereabouts are known so that he could reasonably be expected to receive actual notice. In the second situation, service at defendant's former home, or by leaving process with defendant's parents, has been held invalid."

Wright and Miller, 4 Federal Practice and Procedure, § 1096 at p. 366 (1969), states the applicable rule as follows: "The validity of service attempted on a serviceman at his residence immediately before entering the armed forces also has been found to turn on whether he intends to return to the place where service was made or has established a new residence where he is stationed with the military."

The defendant's evidence is silent as to whether he has established a new residence (private home) where he is stationed and is silent as to whether he intends to return to his mother's home upon discharge. The facts necessary to sustain the dismissal have not been adequately presented in this record, and the trial court thus erred in granting Todd Murrell's motion to dismiss for insufficiency of service of process.

2. The plaintiffs enumerate error on the granting of summary judgment to the mother, Ann Murrell. Plaintiffs contend that the car driven by Todd Murrell was a family purpose car. (It is not clear that the trial court based its decision on this ground; we deal with it because it was urged below and on appeal.)

The principles underlying the family purpose car doctrine are set out in Phillips v. Dixon, 236 Ga. 271, 272, 223 S.E.2d 678 (1976), where the rule is stated as follows: "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." See OCGA § 51-2-2. The defendant mother claims these principles are not applicable here because she is not the "owner" of the car.

For purposes of the family purpose car doctrine an "owner" has been described as one who owns an auto, controls its use, has some property interest in it, or supplies it. Prosser, The Law of Torts § 73 (4th ed. 1971); Murch v. Brown, 166 Ga.App. 538, 304 S.E.2d 750 (1983). See also OCGA § 40-1-1(34).

There is evidence in the record to show that the mother purchased the car with a check drawn on her account and retained title in her name. The car is also insured as belonging to her on a policy covering two cars. She says, however, that the money to pay for the car in question was deposited to her checking account from her son's savings account as a means of facilitating payment, and that he also reimbursed her for his pro rata share of the insurance premiums. She also says she has never driven or ridden in this car, does not exercise any control over his use of the car, and contributes no money to its upkeep or for gas or oil. She did say, however, that she had deprived her son of the use of car at least once as an incentive to do better in school.

Under this evidence, if summary judgment was granted on the basis that the car was not being used as a family purpose vehicle, the trial court erred in doing so. Murch v. Brown, supra; Potts v. Seifert, 133 Ga.App. 675, 212 S.E.2d 88 (1975); Watson v. Brown, 126 Ga.App. 69, 189 S.E.2d 903 (1972). Compare Calhoun v. Eaves, 114 Ga.App. 756, 152 S.E.2d 805 (1966).

3. The main issue to be determined in this case is the constitutionality of OCGA § 51-4-2(a). That section, which is applicable to these plaintiffs, provides in pertinent part as follows: "(a) The widow or, if there is no widow, a child or children, either minor or sui juris, may recover for the homicide of the husband or father the full value of the life of the decedent, as shown by the evidence. ²

"(c) The widow may release the alleged wrongdoer without the concurrence of the child or children or any representative thereof and without any order of court, provided that she shall hold the consideration for such relief [sic] subject to subsection (d) of this Code section.

"(d) The widow shall hold any amount recovered under subsection (a) of this Code section subject to the law of descents, as if it were personal property descending from the decedent to her and to his children."

OCGA § 51-4-3, which is applicable where the mother is killed, provides in pertinent part as follows: "(a) The husband and the legitimate and illegitimate child or children may recover for the homicide of the wife or mother. They shall have the right to recover the full value of the life of the decedent, as shown by the evidence.

"(b)(1) The husband and legitimate and illegitimate child or children who are alive at the time the action is brought shall bring an action jointly and not separately, with the right of survivorship if any of the parties die pending the action.

"(2) If any one or more of the husband and legitimate and illegitimate child or children desire to bring an action under subsection (a) of this Code section, he or they may...