Maddox v. Queen , 150 Ga. App. 408 ( 1979 )

Birdsong, Judge.

Appellant brings this appeal from a jury verdict for the defendant-appellee. Appellant, a four-year-old child, brought this suit b/n/f, her father. The child and her mother who were separated from the father were living with the appellee Queen, the mother’s father and child’s grandfather. Queen, on September 29, 1975, started his riding lawnmower for the purpose of cutting the grass. As the grandfather drove the mower into the yard, the child’s mother said she would cut the grass while the grandfather ate a meal. After the grandfather had eaten, he returned to the yard to finish the mowing. His daughter stopped the mower’s forward motion but with the mower still running. As she stepped off the mower to relinquish the operation to her father, it suddenly moved forward. The grandfather stepped to the side, out of the way of the mower, but his four-year-old grandchild was standing immediately behind him. The* lawnmower ran into her and in the process, severly mangled her right foot. Neither the mother nor the grandfather knew the child was in the yard.

In the pre-trial order, the principle issues of fact to be submitted to the jury were stated to be whether the mother was negligent in the operation of the lawnmower, whether the mother was the agent of the defendant grandfather, whether or not any of the negligence of the mother, if any, could be imputed to the grandfather and whether the child’s father could bring this cause of action. The jury returned a verdict for the appellee-defendant. The appellant brings this appeal enumerating numerous errors. Held:

The resolution of the threshold issue of whether an unemancipated minor child can sue her grandfather for a negligent tort is dispositive of this case.

Prosser, Law of Torts 496, 497 (3d Ed.), § 72 has the following comment about the Family Purpose Doctrine. "There is obviously an element of unblushing fiction in this manufactured agency; and it has quite often been recognized, without apology, that the doctrine is an instrument of policy, a transparent device intended to place the liability upon the party most easily held responsible.”

In the instant case, the injured child lived in the home of her grandfather because, according to the testimony of the grandfather, the natural father had deserted his wife and child. Under such facts, the jury could conclude that the grandfather was in loco parentis to the granddaughter. See generally Howard v. Randolph, 134 Ga. 691 (68 SE 586). The grandfather was certainly the head of the household having provided a home for his wife, his daughter, and his grandchild.

To allow the plaintiff to sue under the facts of this case would violate the public policy of this state. As was held generally in Chastain v. Chastain, 50 Ga. App. 241 (177 SE 828) and Bulloch v. Bulloch, 45 Ga. App. 1 (163 SE 708): To allow an unemancipated child to sue a parent (or head of the household) would be against the public policy of this state. As we read the facts of this case, there is no evidence showing a wilful or malicious wrong or tort committed by a parent. In fact, it is difficult to glean from the evidence, any familial negligence leading to the injuries. In these circumstances to allow an unemancipated child to sue the head of the household acting in loco parentis would also be against public policy. No case has been brought to our attention which holds that the head of the household may be sued by another member of the household.

We are aware of the holding in the case of Stapleton v. Stapleton, 85 Ga. App. 728 (70 SE2d 156). The facts in the Stapleton case are distinguishable. In that case, a father sued on behalf of his five-year-old daughter, the employer of her mother who furnished to the mother an automobile. The child was in the automobile being driven by her mother on the employer’s business when injured. No such analogous factual situation exists in the case sub judice.

The mother in the instant case was cutting the grass not only for her father’s benefit, but for the benefit of herself and her daughter who resided in the home of her father. If the mother was in the process of transácting business affairs, i.e., cutting grass, it was for her own benefit and her daughter’s benefit as well as for. her father’s benefit.

To allow a father, who is separated from his wife and child to file a suit against the grandfather who provides a home for the child and her mother based upon the fiction that the child cannot sue the mother but can sue the grandfather based upon imputed negligence from the mother to the grandfather is repugnant to the public policy of this state. Furthermore, we do not believe it to be expedient or proper to expand further the family car doctrine. While we are aware that the family car doctrine was extended to a boat by the legislature, Code Ann. § 105-108.1 (b), we will not judicially extend the doctrine to riding lawnmowers.

Argued January 16, 1979 Decided June 22, 1979 Harrison & Roper, Gary D. Stokes, D. Landrum Harrison, for appellant. Richard P. Schultz, for appellee.

Appellant moved for a directed verdict on the question of agency on the grounds that there was no question of fact to be submitted to the jury. Additionally, appellant enumerates as error various portions of the charge to the jury dealing with the matter of agency, respondeat superior, negligence, direct and imputable, accident, contributory negligence, proximate cause, and similar doctrines of law. In view of the holding of this court that a suit of the sort here under consideration violates the public policy of this state, these enumerations have all been rendered moot. The decision of the jury being for the defendant for whatever reason is correct.

Judgment affirmed.

Underwood, J., concurs. Deen, C. J., concurs specially. McMurray, P. J., and Banke, J., concur in the judgment only. Quillian, P. J., Smith and Corley, JJ., dissent. Shulman, J., not participating.