Opinion
45071, 45072.
SUBMITTED FEBRUARY 4, 1970.
DECIDED MARCH 3, 1970. REHEARING DENIED MARCH 16, 1970.
Action for damages. Lincoln Superior Court. Before Judge Stevens.
Walton Hardin, for appellant.
Fulcher, Fulcher, Hagler, Harper Reed, J. Walker Harper, Ben Ross, Wilbur A. Orr, for appellees.
1. Where there is conflicting testimony as to the authorization of a third party to drive a motor vehicle, used for the comfort and convenience of a minor child who was riding in the vehicle at the time of the collision and having custody and control thereof, summary judgment should not be granted in favor of the defendant in a suit for damages against said owner. The lower court erred in granting summary judgment. Cohen v. Whiteman, 75 Ga. App. 286 ( 43 S.E.2d 184); Myrick v. Sievers, 104 Ga. App. 95 ( 121 S.E.2d 185); State Farm Mut. Auto. Ins. Co. v. Williamson, 331 F.2d 517; Strickland v. Moore, 113 Ga. App. 209 ( 147 S.E.2d 682); Pritchett v. Williams, 115 Ga. App. 8 ( 153 S.E.2d 639).
2. Based on the same evidence, the court was not authorized to declare there was no liability on the owner and that the insurer had no obligation under his contract to defend the suit.
Judgment reversed. Hall, P. J., and Deen, J., concur.
SUBMITTED FEBRUARY 4, 1970 — DECIDED MARCH 3, 1970 — REHEARING DENIED MARCH 16, 1970 — CERT. APPLIED FOR.
These are cases growing out of a collision between an automobile driven by Bernard C. Danner, and an automobile driven by Wiley Bonner, Jr., and as a result of which Danner filed suit in the Superior Court of Lincoln County against Wiley Bonner, Jr., as the driver of the other automobile, and against Mrs. Christine Wills Freeman, as the owner of the car driven by Bonner. The companion case, in substance, involves a petition for declaratory judgment to determine the obligation of an insurer of Mrs. Freeman. Motions for summary judgment were filed in each case, both contending that Mrs. Freeman could not be liable because she had not authorized Wiley Bonner, Jr., to drive her automobile, and Nationwide Mutual Insurance Company thus contended that it was not liable under its policy of automobile liability insurance issued to Mrs. Freeman.
Mrs. Freeman's minor daughter, Penny Freeman, was riding in the Freeman automobile with Wiley Bonner at the time of the collision, and Danner contends the family-purpose doctrine should be applied, thereby making Mrs. Freeman responsible for the alleged negligent conduct of Bonner in causing the collision. Danner contends that the automobile in question was supplied to Penny Freeman by Mrs. Freeman, her mother, for the comfort, pleasure and convenience of said minor daughter, who was riding in the car at the time of the collision, having agreed to Bonner's driving it, and Mrs. Freeman was responsible for his alleged negligent conduct.
Penny Freeman was not yet 14 years old on the day in question. There was testimony that Mrs. Freeman placed her automobile in charge of Debbie Drinkard who was 16 years of age, and who had a driver's license. However, Debbie Drinkard testified that Penny Freeman requested her to drive to Lincolnton, and that no specific driving instructions were given to her by Mrs. Freeman. The evidence is not in dispute that Penny Freeman, the minor, later found herself in Lincolnton with the car but without a driver having a proper driver's license, and she requested Wiley Bonner to drive. The testimony is in conflict as to the use of the automobile on numerous other occasions by the 13-year-old child, even though there was testimony the child had been expressly prohibited from permitting minors to drive the automobile. There was considerable circumstantial evidence that the minor had been seen driving the car on various and sundry trips on the public highways and in other public places.