Grahl v. McMath , 59 Ga. App. 247 ( 1938 )

ON MOTION ROE REHEARING.

Counsel for the defendant Dorsey contends that the decision in Hubert v. Harpe, supra, is not a precedent and is not controlling authority in this case for the reason that it was there held that a father who kept and maintained a car for the pleasure and convenience of his family was liable for the negligent operation of such car by a non-dependent, self-supporting, adult son, who resided in his home without charge, when, as a matter of custom, he voluntarily permitted such son to use the car, while in the present case it merely appears that the son was visiting in the father’s home for the Christmas holidays and was not residing there. We can not see that it is material whether the adult, non-dependent, self-supporting son lives twelve months in the home or is merely living there while on a visit to his father. We feel that we are bound by the Hubert case. In Griffin v. Russell, 144 Ga. 275 (supra), it was held: “If a father or mother, owning an automobile, and keeping it to be used for the comfort and pleasure of the family, should authorize a son to drive it for the comfort or pleasure of the family, this would make the owner liable for the negligence of the son operating the machine for such purpose.” The use of the car for the comfort and pleasure of the family made such use “her business or affair within the meaning of the rule of law discussed above.” Griffin v. Russell, supra. It will be noted that Justice Evans did not concur in this principle, and that under the facts in that case a minor son was operating the car. In Bryant v. Keen, 43 Ga. App. 251 (158 S. E. 445), the family-car doctrine was restricted so as to exclude a son-in-law from its operation. In Kennedy v. Manis, 46 Ga. App. 808 (169 S. E. 319), this doctrine was held to include an adult daughter living with the parents as a member of the family. While the Hubert case, supra, although rendered by a divided court, stands unreversed, this court is bound thereby. We think that an unmarried son on a visit to his family becomes a member thereof. If this car was furnished him by his father, as a family car, for the comfort and pleasure of the family, this son was the father’s agent and as such the father became responsible for his acts. If the father did not so furnish the car no liability would exist. Rehearing denied.