Trotter v. Ashbaugh

• Decision Date: 16 October 1980
• Docket Number: No. 60492,60492
• Parties: TROTTER v. ASHBAUGH.
• Court: Georgia Court of Appeals

Page 127

274 S.E.2d 127

156 Ga.App. 130

TROTTER v. ASHBAUGH.

No. 60492.

Court of Appeals of Georgia.

Argued Sept. 4, 1980.

Decided Oct. 16, 1980.

Fletcher Thompson, Atlanta, for appellant.

Edward L. Savell, Atlanta, for appellee.

McMURRAY, Presiding Judge.

This case involves another appeal in this personal injury action. See in this connection Ashbaugh v. Trotter, 237 Ga. 46, 226 S.E.2d 736, reversing Trotter v. Ashbaugh, 137 Ga.App. 378, 224 S.E.2d 42, Id., 139 Ga.App. 690, 229 S.E.2d 507, and affirming the judgment of the trial court in its pretrial order that "a child plaintiff six years old can be guilty of contributory negligence." See Code § 105-204 (Due care in child).

The Supreme Court in the above review of the decision of the Court of Appeals criticized Red Top Cab Co. v. Cochran, 100 Ga.App. 707, 112 S.E.2d 229, holding it was not controlling precedent in Ashbaugh v. Trotter, 237 Ga. 46, 226 S.E.2d 736, supra, as to whether or not a 6 year old child is capable of contributory negligence in that the plain language of Code § 105-204 should have been applied.

The case sub judice involves "an infant plaintiff age 6 years and 3 months." However, it is noted here that the Supreme Court did not consider its earlier decision of Crawford v. Sou. R. Co., 106 Ga. 870 (2), 877-878, 33 S.E. 826, wherein it held that as a matter of law "a child only four and a half years old is incapable of being guilty of contributory negligence," the court deciding same "as (a) matter of law." Consequently, a child "age 6 years and 3 months" requires determination as to its capacity, mental and physical, for exercising due care "in the actual circumstances of the occasion and situation under investigation" (the incident in question). See Code § 105-204. As the age of the child in the Red Top Cab Co. v. Cochran case was only 6 years, it possibly could be construed that a child under 6 years of age should be considered incapable of contributory negligence as a matter of law. See Riggs v. Watson, 77 Ga.App. 62, 63 (10), 68-70, 47 S.E.2d 900 (involving a child under six years of age), quoting approvingly from 107 ALR 107 and 2 Blashfield, Vol. 2, § 1521 (1951 ed. Vol. 2A, Ch. 39, P 1521, Cy., Automobile Law & Practice), in which both works stated it is almost universally agreed that a child of tender years of age 6 or less "does not have sufficient intelligence to be chargeable with negligence so as to defeat recovery for injuries caused by a collision with an automobile." See also Crawford v. Sou. R. Co., 106 Ga. 870, 33 S.E. 826, supra (involving a four-and-one-half-year-old child); Jones v. Jones, 119 Ga.App. 788 (1), 168 S.E.2d 883 (involving a two-year-old child); Christian v. Smith, 78 Ga.App. 603, 606, 51 S.E.2d 857 (a child under six years of age). These cases were not overruled, considered or discussed in Ashbaugh v. Trotter, 237 Ga. 46, 226 S.E.2d 736, supra.

On May 17, 1973, the right foot of Jeffrey Adam Trotter, the minor child, age 6 years, 3 months, of Joyce Wallace Trotter Ashbaugh, wife of John Ashbaugh, and son of Charles Cecil Trotter, her divorced husband, was severed in the use of a grass mowing machine known as a bush hog, attached to a tractor that was being operated by John Ashbaugh. John Ashbaugh is the stepfather of the minor child, Jeffrey Adam Trotter. The mother, Joyce Wallace Trotter Ashbaugh, failed to institute any action in behalf of her son with reference to the incident in which her husband, John Ashbaugh, was operating a tractor with "bush hog" attached which severed the right foot of her minor child.

On January 15, 1974, Charles Cecil Trotter, as next friend of Jeffrey Adam Trotter, brought this action in tort against the defendant John Ashbaugh, alleging negligence in the operation of the bush hog in such a manner that it cut off the right foot of Jeffrey, seeking damages for pain and suffering and other personal injury in the amount of $250,000. The defendant answered, denying the claim, admitting only jurisdiction and the facts set out above with reference to the incident, alleging also a defense of "pure accident" and plaintiff's injury was "directly and proximately caused by his own act unmixed with any negligence on the part of the defendant."

After discovery, a motion for summary judgment was filed on August 21, 1979, based upon the recent cases of Maddox v. Queen, 150 Ga.App. 408, 257 S.E.2d 918 and Jones v. Swett, 244 Ga. 715, 261 S.E.2d 610, that it would be against the public policy of Georgia for this action to be maintained. Hence, defendant contends there is no genuine issue of material fact involved and he is entitled to summary judgment in his favor. On April 10, 1980, after consideration of the pleadings, affidavits and depositions on file, the motion was granted. Plaintiff appeals. Held :

1. Where a person assumes the relation of a parent to a child not of kin, whom he is under no obligation to support, and faithfully discharges the duties of that relation by receiving such child into his family and educating and supporting him as if he had been his own child, even though there is no express agreement to pay wages to the child, an action cannot be maintained against said person pursuing the duties of a foster parent as to services rendered by the child while a minor where there is no express agreement to pay wages. Howard v. Randolph, 134 Ga. 691 (1, 2), 692-694, 68 S.E. 586.

Numerous other cases also uphold the preservation of family tranquility as being paramount and prevent an unemancipated child from suing a parent or person standing in loco parentis. See Chastain v. Chastain, 50 Ga.App. 241, 177 S.E. 828; Bulloch v. Bulloch, 45 Ga.App. 1, 163 S.E. 708; Wright v. Wright, 85 Ga.App. 721 (2), 724, 70 S.E.2d 152; Eschen v. Roney, 127 Ga.App. 719, 720-721, 194 S.E.2d 589; Harrell v. Gardner, 115 Ga.App. 171, 174-175, 154 S.E.2d 265; Horton v. Brown, 117 Ga.App. 47, 159 S.E.2d 489.

2. Upon remarriage, if a mother with minor children from a previous marriage shares their custody and control with their stepfather, the stepfather is loco parentis to the children even though they have not been adopted by him. See Lee v. Green, ...