Cohen v. Whiteman

A father who keeps and maintains an automobile for the use, comfort, pleasure and convenience of his family, including a minor son, is responsible for injuries resulting from negligence of a third person whom the son permits to drive, where the son remains in the automobile and retains control, authority and direction over it, and where the automobile is still being used in furtherance of the purposes of a family car.

DECIDED MAY 27, 1947. REHEARING DENIED JUNE 18, 1947. Mrs. Anne Cohen sued Frank Whiteman, individually, and J. B. Upchurch, doing business as J. B. Upchurch Transfer Company, and Virginia Surety Company as the insurer of the transfer company. The suit was for damages for the death of plaintiff's son in a collision between an automobile owned by Whiteman and in the possession of his minor son, Arnold Whiteman, and a truck of the transfer company. The plaintiff alleged that her son, Alvin Cohen, was riding as an invited guest of Arnold Whiteman in the automobile owned by his father and kept and maintained by the father as a family purpose car; that another person, Gerald Fishman, was also riding in the automobile; that the driver of the said car was guilty of gross negligence in driving at a speed in excess of 70 miles per hour and in colliding with the truck of the transfer company. Paragraph 13 of the plaintiff's original petition was as follows: "Petitioner shows that her son, said Alvin Cohen, was not driving said automobile at any time on the date aforesaid, and while the said Arnold Whiteman started operating same towards Athens, as aforesaid, petitioner avers that at the time and place of the accident, the driver of said Buick automobile, owned by the said Frank Whiteman, for the purpose aforesaid, is unknown to petitioner but is well known to the defendant, Frank Whiteman." The defendant Whiteman demurred generally and specially to the petition, the grounds of the general demurrer being that no cause of action was alleged against Whiteman, and that the well-pleaded allegations of the petition showed that no person with authority from Frank Whiteman to do so was operating the automobile at the time of the collision. The special demurrer was directed to paragraph 13 of the petition and alleged that it did not show that the automobile in question was being operated by an agent or servant of the defendant at the time of the accident, and did not show that the defendant was responsible for the operation of said automobile at said time, and did not show that any agent or servant of the defendant was driving his automobile with his knowledge, permission or consent, or in the course of defendant's business, at the time of the accident.

The trial court sustained both the general and special demurrers of the defendant Whiteman but "with the right on part of plaintiff, within 20 days from this date, to amend to meet the grounds of said demurrer, and in the absence of amendment the within suit will stand dismissed as to defendant, Frank Whiteman." Within the time provided in the order the plaintiff amended by deleting paragraph 13 of her original petition and inserting in lieu thereof the following: "Petitioner shows that her son, the said Alvin Cohen, was not driving said automobile at any time on the date aforesaid, and while the said Arnold Whiteman started operating the same towards Athens, Georgia, as aforesaid, petitioner avers that when they reached Monroe, Georgia, the said Arnold Whiteman having the control, authority and direction of the said automobile directed and permitted the said Gerald Fishman to take over the wheel and to continue to drive same towards Athens, Georgia. That defendant's son, the said Arnold Whiteman, remained in the automobile and although not personally operating it, had not relinquished control over it and when the said Gerald Fishman began driving said automobile, it was still being used in furtherance of the purpose as set out in the petition." The defendant Whiteman renewed his demurrers, general and special, to the petition as a whole and to paragraph 13 thereof, on the same grounds contained in the original demurrers. The trial court sustained the renewed demurrers and dismissed the action as to the defendant Whiteman. Exceptions to that ruling have brought the case to this court. The head of a family who keeps and maintains an automobile for the use, comfort, pleasure and convenience of the family is liable for an injury resulting from the negligence of a minor son, a member of the family, while operating the automobile with the knowledge and consent of the owner, for the comfort or pleasure of the family, and thus in pursuance of the purpose for which it was kept and maintained by the parent. This is a fair statement of the rule called variously "family-purpose doctrine," "family-service rule," "family-automobile doctrine,"and "family-car rule," as recognized and applied in the leading case of Griffin v. Russell, 144 Ga. 275 (87 S.E. 10, L.R.A. 1916 F, 216, Ann. Cas. 1917 D, 994). The doctrine of the family car has been extended or applied to liability for damages caused by an adult son or daughter living with the parent as a member of the family (Kennedy v. Manis, 46 Ga. App. 808,169 S.E. 319, Hubert v. Harpe, 52 Ga. App. 262, 183 S.E. 98); and to a married woman owning an automobile as her separate property, which she permitted different members of the family to use for their comfort and pleasure, although she was not the head of the family, her husband living with her and owning an automobile which was used for family pleasure and comfort (Ficklen v.Heichelheim, 49 Ga. App. 777, 176 S.E. 540), and to the liability of a mother for the negligence of her minor son, in driving her car with her consent although he departed from the route she directed (Evans v. Caldwell, 52 Ga. App. 475, 184 S.E. 440), and to an unmarried man who was the head of a family consisting of himself, a widowed mother and two sisters, one of whom was unmarried, for the negligence of the unmarried sister in operating the automobile maintained by the brother. Levy v. Rubin,181 Ga. 187 (182 S.E. 176). The rule has been restricted so as not to apply to injuries inflicted by a brother-in-law (Rape v.Barker, 25 Ga. App. 362, 103 S.E. 171), nor to injuries caused by a son-in-law (Bryant v. Keene, 43 Ga. App. 251,158 S.E. 445), nor by a grandson (Mitchell v. Mullen,45 Ga. App. 285, 164 S.E. 278), nor by a nephew of the owner in the absence of testimony that he was a member of the owner's family (Samples v. Shaw, 47 Ga. App. 337, 170 S.E. 389), nor to injuries caused by a stepdaughter where she did not live with the stepfather, the owner of the car, but lived with her own father (Wolfson v. Rainey, 51 Ga. App. 493, 180 S.E. 913).

Counsel for the defendant Whiteman contend that the amendment of the plaintiff did not meet the grounds of the demurrers as originally filed, and that in the absence of exceptions the ruling on the first demurrers became the law of the case. This is but another way of saying that the petition as amended did not allege a cause of action. If it did set out a cause of action the contention of the defendant as to this point of practice or procedure is without merit. The order sustaining the original demurrers was conditional and not an absolute and final judgment. It gave the plaintiff twenty days in which to amend to meet the grounds of the demurrers, and showed on its face that it was not intended to be final until and unless the plaintiff failed to amend. The plaintiff amended within the time provided in the order, and in a manner that was sufficient to meet the demurrers, and it was not necessary or proper to except to that order. SeeOlds Motor Works v. Olds Oakland Co., 140 Ga. 400 (78 S.E. 902), and Peoples Loan Co. v. Allen, 198 Ga. 516, 518 (32 S.E.2d, 175).

In the first instance the plaintiff alleged that she did not know who was driving the defendant's automobile at the time of the accident, but that the defendant did know. In response to the demurrers she alleged that Gerald Fishman was directed and permitted by Arnold Whiteman to take over the wheel and drive the car before the collision occurred, but that Arnold Whiteman, the defendant's son, still had "control, authority and direction over the said automobile," and "remained in the automobile, and although not personally operating it had not relinquished control over it," and "it was still being used in furtherance of the purpose as set out in the petition," that is, as a family-purpose car. While liability under the "family-purpose doctrine" is not founded altogether on the existence of a family relationship, but is predicated also on the principles of the law of agency, or of master and servant, it is well settled that when the head of a family makes it his business to entertain or furnish pleasure to members of his family, a liability arises under the law of principal and agent and of master and servant, and the member of the family using the automobile for the purposes for which it is kept and maintained by the head of the family becomes in legal contemplation the agent or servant of the owner. It has been said that "no hard and fast rule can be laid down to determine what is the ``business' or ``scope of employment' of a parent as applied to members of his family." Kalil v. Spivey, 70 Ga. App. 84, 91 (27 S.E.2d 475). After citing a number of cases applying the family-car doctrine, in Wolfson v. Rainey, 51 Ga. App. 493 (supra), this court said: "The rule announced by these decisions seems to be that when an automobile, kept by a father for the comfort and pleasure of his family, is being used for that purpose, it is being used within the scope of the business of the father."

In this case it appears from the allegations of the petition that the automobile involved in the wreck in which the plaintiff's son was killed was clearly a family-purpose car, that it was being used by the son of the owner for his pleasure and comfort in making a trip from Atlanta to Athens, Georgia, with two of his friends whom he had invited to accompany him. Although the son permitted one of the friends riding with him to drive the car, the son retained control, authority and direction over the automobile, and he remained in the automobile which was still in his possession, custody and control, and it was still being used when the collision with the truck occurred in furtherance of the purposes and objects contemplated in its use as a family car. It seems to us that these allegations were sufficient as against the demurrers interposed by the defendant. The temporary driving of the automobile by one of the son's invited guests, under the circumstances set forth in the petition, did not destroy its character as a family-purpose car, and the negligence of the temporary driver was, in contemplation of law, the negligence of the son for which the father as the owner of the car would be liable.

The exact point involved does not seem to have been passed on by the courts of this State. The case nearest in point isGolden v. Medford, 189 Ga. 614 (7 S.E.2d 236), 62 Ga. App. 229 (8 S.E.2d 531). In that case it appears that a husband was riding in and directing the operation of a family-purpose car owned by his wife, which she kept for the comfort, pleasure and convenience of the members of her family, including her husband, and that the husband, without the knowledge or express consent of the wife, she not being present, procured an adult person, not a member of her family, to drive the car under the direction, control and supervision of the husband. The question was whether the wife, under the family-purpose doctrine, was liable in damages for personal injuries to a third person caused by the negligence of the driver. In answering a certified question from this court the Supreme Court construed the question to mean that the husband had general authority from the wife not only to ride in, but to direct the operation of the car by others for his own pleasure, and under that construction held that the wife would be liable. This court has held that the use by a son of a family-purpose automobile, in violation of instructions of the father, does not necessarily render the act that of the son alone, and not an act as a servant of the father. Battle v. Kilcrease, 54 Ga. App. 808 (189 S.E. 573).

The courts of other States seem to have passed upon the question involved in this case. The wife of the owner of a family-purpose car permitted a person riding with her in the car on a shopping trip to drive the car, and the owner was held liable for the negligent operation of the car by such third person. Goss v. Williams, 196 N.C. 213 (145 S.E. 169). Where a mother had allowed her son the use of an automobile to take a friend and two girls riding she would be responsible for injuries resulting from negligence of the friend whom the son had permitted to drive while he rode in the back seat. Thixton v. Palmer, 210 Ky. 838 (276 S.W. 971, 44 A.L.R. 1379). Where a father kept an automobile for the pleasure of his family, including a daughter 19 years of age, and on the occasion of the accident the daughter was joined by a party of young people and permitted a cousin to drive the car, the father was held liable for the negligence of the driver. The court said: "The daughter remained in the car and, although not personally operating it, had not relinquished control over it, nor turned it over to another to use for his own purposes. It was still being used in furtherance of the purpose for which she had taken it out." Kayser v. Van Nest, 125 Minn. 277 (146 N.W. 1091, 51 L.R.A. (N.S.) 970). (This case is cited and discussed in Griffin v. Russell, cited supra.) Where a son who was driving a family purpose car requested and directed a third person to operate the same in his presence, the owner was held to be liable for the negligence of the operator. Eagon v. Woolard, 122 W. Va. 565 (11 S.E.2d 257, 134 A.L.R. 970). Justice Cardozo, while a member of the Court of Appeals of New York, in a case analogous to the case at bar, had this to say: "Only a narrow construction [of the statute involved] would permit us now to say that an owner placing a car in the care of members of his family to be used for their pleasure or for the family business would escape liability if wife or son or daughter should give over the wheel to the management of a friend. The ruling has been more liberal whenever the question has come up." Grant v. Knepper, 245 N.Y. 158 (156 N.E. 650, 54 A.L.R. 845).

The defendant relies largely upon the case of Schumer v.Register, 12 Ga. App. 743 (78 S.E. 731), his counsel stating in their brief that they used the language of the decision in that case in preparing their demurrers in this case. It is true that the case relied on seems to sustain the contentions of the defendant, but it was decided in 1913, more than two years before the Supreme Court, for the first time, stated clearly the family-car doctrine in the leading case of Griffin v.Russell, 144 Ga. 275 (supra), which was decided in 1915. And, in Griffin v. Russell, the Supreme Court referred toSchumer v. Register and analyzed the cases cited therein and on which that decision was based, and then in effect overruled it by saying: "We can not concur with our brethren of the Court of Appeals in the view which they seem to have taken of the decisions cited." It seems therefore that the Schumer case is not controlling authority on the question involved in the case at bar.

We think the petition of the plaintiff as amended stated a cause of action and that the court erred in sustaining the demurrers.

This case was considered by the court as a whole under the provisions of the act approved March 8, 1945 (Ga. L., 1945, p. 232).

Judgment reversed. Sutton, C. J., MacIntyre, P. J., Gardnerand Townsend, JJ., concur. Felton, J., dissents.