Summary
noting that while it is essential that the vehicle be furnished by the head of the family for a family purpose, “[t]he vehicle may be furnished ... for the use of less than all members of the family”
Summary of this case from Starr v. HillOpinion
42317.
ARGUED SEPTEMBER 7, 1966.
DECIDED NOVEMBER 8, 1966. REHEARING DENIED DECEMBER 7, 1966.
Action for damages. Fulton Superior Court. Before Judge Moore.
Sam D. Hewlett, Jr., Florence Hewlett Dendy, Roland Neeson, for appellant.
Lokey Bowden, Glenn Frick, for appellee.
The trial judge did not err in granting a summary judgment for defendant, where, as here, in an action brought under the family-purpose doctrine against a father for damages and injuries resulting from the negligent operation of a motor vehicle by his son, the facts conclusively show that the son, an emancipated minor in school away from home, had purchased the vehicle with his own funds, and had exclusive custody and control of the vehicle.
ARGUED SEPTEMBER 7, 1966 — DECIDED NOVEMBER 8, 1966 — REHEARING DENIED DECEMBER 7, 1966 — CERT. APPLIED FOR.
This is an appeal from a summary judgment for defendant in Fulton Superior Court on an action brought by Bill B. Calhoun against Everett Eaves under the family-purpose doctrine to recover for property damages and personal injuries sustained as the result of an automobile collision in the City of Atlanta on November 4, 1962. The petition alleges that an automobile owned by defendant and operated by Everett Joel Eaves, his minor unemancipated son, collided with plaintiff's vehicle. Defendant's son allegedly resided with defendant in Louisiana, but was in Atlanta at that time attending Georgia Institute of Technology, and was operating the automobile with the permission of his father as a family-purpose vehicle. Defendant in his answer denied that he was the owner of the automobile, and that the vehicle was being used for family purposes, and all other material allegations of the petition.
The evidence adduced on hearing of the motion for summary judgment discloses that Everett Joel Eaves, the younger of defendant's two sons, was 19 when he was killed on November 4, 1962, in the incident out of which this action arose. By order of the judge of the First Judicial District Court of Caddo Parish, Louisiana, dated February 17, 1961, Everett Joel Eaves was fully emancipated and relieved of all disabilities which attach to minors. Defendant, whose full name is Everett Eaves, had told his sons that he would not object to either of them owning an automobile while in college after completing one year with satisfactory grades, if the son purchased the car with his own money. Over a period of about five years before the incident he made gifts of shares of stock to his sons, and he also gave them money for college expenses. Each son paid his expenses and managed his affairs. On June 12, 1962, Everett Joel Eaves had completed one year of college at Georgia Institute of Technology with satisfactory grades. At this time he personally purchased the automobile involved in the collision from a firm in Shreveport, La., unaccompanied by his father or anyone else, and gave his personal check for $1,938.92 in full payment. He sold stock to obtain funds to pay for the car, but because of the delay in receiving proceeds borrowed $2,500 from his father. He repaid his father on June 20, 1962, the same day he received payment for the sale of the stock. The application to the State of Louisiana for title and registration of the vehicle, dated June 12, 1962, is in the name of Everett Joel Eaves and bears a signature purporting to be that of Everett Joel Eaves as owner. During the summer he drove the vehicle to Chicago where he attended the Chicago Institute of Technology, returned to Shreveport to reside with his parents, worked for defendant for a short period and earned $214.60, and then went to Atlanta to attend Georgia Institute of Technology as a sophomore. Defendant placed money in his son's bank account to pay his college expenses in Atlanta. The evidence further discloses that by endorsement, effective June 12, 1962, the automobile was listed on a liability insurance policy previously issued to defendant and his wife, which covered two other automobiles. Defendant did not request this coverage and who did is unknown. A representative of the automobile agency where the vehicle was purchased testified that it was customary to give the insurance firm the motor and serial number of a newly purchased vehicle, and that he possibly did so in this case. Defendant paid all premiums on the policy, for which he received invoices, and he may have required his son to reimburse him. After the collision defendant claimed and collected $1,000 as the insured under the policy to cover the burial expenses of his deceased son. Defendant and his wife obtained release of the vehicle from authorities in Atlanta as the legal heirs of Everett Joel Eaves, and defendant sold the vehicle to an Atlanta automobile dealer and listed the proceeds in the assets in the estate of Everett Joel Eaves.
The summary judgment statute provides that if the pleadings, depositions, and admissions on file, together with the affidavit, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, such judgment should be rendered forthwith, but that nothing in the statute shall be construed as denying any party the right to a trial by jury if there are any substantial issues of fact to be determined. Code Ann. § 110-1203. A primary purpose of this procedure is to allow a party to pierce the allegations of the pleadings, show the truth to the court, and receive judgment where there is no genuine issue of material fact, although an issue may be raised by the pleadings. Scales v. Peevy, 103 Ga. App. 42, 47 ( 118 S.E.2d 193). It logically follows that if defendant, as movant for summary judgment, produces evidence conclusively establishing a fact or facts which negate one or more essential elements of plaintiff's action, it is useless to present the case to a jury, and the movant is entitled to a summary judgment as a matter of law. See Allen v. Safeco Ins. Co., 108 Ga. App. 278, 279 ( 132 S.E.2d 859).
Plaintiff in this case bases his action on the family-purpose doctrine as recognized in this state. "A father is under no legal obligation to furnish an automobile for the comfort and pleasure of his child, whether minor or adult; and if he does so, it is a voluntary act on his part. In every such case the question is whether the father has expressly or impliedly made the furnishing of an automobile for such purpose a part of his business, so that one operating the vehicle for that purpose with his consent, express or implied, may be considered as his agent or servant. A child, whether minor or adult, may occupy the position of a servant or agent of his parent, and for his acts as such the parent may be liable under the general principles governing the relation of master and servant or of principal and agent." Hubert v. Harpe, 181 Ga. 168, 171 ( 182 S.E. 167). It is essential that the automobile be furnished by the head of the family for a family purpose. Durden v. Maddox, 73 Ga. App. 491 ( 37 S.E.2d 219); Mitchell v. Mullen, 45 Ga. App. 285, 286 ( 164 S.E. 278). See also Shelton v. Doster, 99 Ga. App. 863 ( 109 S.E.2d 862), involving the tort of a wife while operating a car purchased with her own funds in which the husband had no interest or control. The vehicle may be furnished, however, for the use of less than all members of the family. Temple v. Chastain, 99 Ga. App. 719 ( 109 S.E.2d 897). The principal factor in such cases is authority and control of the vehicle, and this is not necessarily determined by title to the vehicle or payment for the expenses of operation. Baker v. Shockey, 93 Ga. App. 595, 596 ( 92 S.E.2d 314). Title may even be in a corporation, if the car is provided for family use. Hirsh v. Andrews, 81 Ga. App. 655 ( 59 S.E.2d 552).
The evidence which plaintiff asserts as creating a material issue of fact, e.g., that the vehicle was listed on the father's insurance policy, that the father claimed and received payment under the policy for burial expenses, that the father provided funds to the son, including funds for the upkeep of the vehicle, and that the father initially provided funds to purchase the vehicle, taken as true, in no way controverts the undisputed evidence that the son, an emancipated minor, purchased the vehicle in his own name for his own use, that the funds received from his father were a loan which the son repaid from assets exclusively under his control, and that the vehicle was at all times under the exclusive custody and control of the son, up to and including the time of the collision with plaintiff's vehicle. How can it then be said that this was a vehicle furnished by the father as head of the family for a family purpose, and that it was being so used at the time of the unfortunate incident? The answer to this question is necessarily in the negative.
The facts of the present case distinguish it from the recent case of Sledge v. Law, 113 Ga. App. 746 ( 149 S.E.2d 758). In that case the father actually supplied the vehicle for the use of his minor son, by endorsing the note for the purchase money, and assuming liability and paying the balance due on the note as a gift to his son and as an inducement to the son to return to school, whereas in the present case the son, free of any disability attaching to a minor, supplied his own vehicle for his own use, incidentally using the proceeds of an unsecured loan from his father which he immediately repaid from the proceeds of the sale of stocks which he owned.
Plaintiff contends, however, that because the vehicle appears on defendant's policy of liability insurance, because the defendant claimed and received benefits under this policy, and because defendant gave his son money to buy the vehicle, defendant was the owner of the vehicle and is estopped to deny such ownership. Even if it were conceded that defendant was the owner of the vehicle, the case would not turn on this point, as it would not disprove the uncontradicted evidence showing that the son as an emancipated minor had the right to and did exercise exclusive authority and control over the vehicle. See Baker v. Shockey, 93 Ga. App. 595, supra. The assertion of estoppel is wholly without merit, for under the record in this case plaintiff does not and cannot show that he has in any way been influenced by or relied on the representations or conduct of the defendant to his detriment. See Code § 38-116; Community Loan c. Co. v. Bachmann-Uxbridge Worsted Corp., 96 Ga. App. 586, 587 ( 100 S.E.2d 602).
Since the evidence in this case conclusively establishes that the vehicle was owned and operated by an individual acting in his own capacity as an emancipated minor living away from home at the time as a student, without any necessity for the consent of his father, expressed or implied, and without the exercise of any authority or control by the father, these facts fail to disclose that the use was intended for a family purpose in any way or any basis for an action against the father under the family-purpose doctrine for damages and injuries arising from its negligent operation. Accordingly, the trial court did not err in granting a summary judgment for the defendant.
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.