Summary
In Kirkland, we affirmed the denial of a motion for directed verdict and held that a wife could be held vicariously liable under the family purpose doctrine for an automobile collision caused by her husband.
Summary of this case from Yim v. CarrOpinion
51259.
SUBMITTED SEPTEMBER 29, 1975.
DECIDED OCTOBER 30, 1975.
Action for damages. Decatur Superior Court. Before Judge Culpepper.
Smith Perry, Edwin J. Perry, III, for appellant.
Ben Kirbo, for appellees.
The husband of the appellant was the driver of an automobile which was involved in a one-car collision wherein he and two of the passengers in the car were killed. Suit for damages was brought by the surviving passenger against the appellant on the theory that the car was a family purpose automobile, owned by the appellant and furnished by her to her husband. The jury returned a verdict in favor of the plaintiff and the appellant here appeals from the resulting judgment against her.
SUBMITTED SEPTEMBER 29, 1975 — DECIDED OCTOBER 30, 1975.
The sole question involved in this appeal is whether the evidence presented was sufficient to support a finding that the automobile was a family purpose car or whether a directed verdict in favor of the appellant on this issue should have been granted by the trial court. "To come within the application of the [family purpose] doctrine, the defendant must own the automobile, or at least have some recognized property interest in it or supply it, and he must have made it available for family use, rather than for use in his business ... The car must be found to have been driven at the time with the permission or acquiescence of the defendant, although his consent may be inferred from a failure to protest at frequent violations of his orders not to use the car." Prosser, Law of Torts (2d Ed.) p. 370, § 66.
The evidence presented in the trial of the case sub judice was as follows: Title to the automobile and all documents of title were in appellant's name; insurance on the automobile was taken out in appellant's name. The certificate of title is only prima facie evidence of ownership and this can be contradicted by other evidence. Watson v. Brown, 126 Ga. App. 69 ( 189 S.E.2d 903). Appellant argues that the prima facie showing of ownership was rebutted by her following testimony: That the down payment on the automobile belonged to her husband and had been originally bought with his money, that all monthly payments on the new car were made by her husband from money he had earned from various odd jobs, that she owned her own automobile and that although the new car was in her name it was her husband's car.
We are not prepared to say that the sole testimony of the appellant rebuts as a matter of law the prima facie showing of ownership as evidenced by the certificate of title, so that a directed verdict was warranted. Rather we find the case of Frazier v. Willis, 128 Ga. App. 762 ( 197 S.E.2d 831), wherein under similar facts it was held that a genuine issue of material fact as to ownership was stated, to be persuasive and hold that it was a question for the jury in the case sub judice as to who was the owner of the vehicle.
However, ownership alone will not in and of itself create liability under the family purpose doctrine in this state. Frankel v. Cone, 214 Ga. 733 ( 107 S.E.2d 819); Hexter v. Burgess, 52 Ga. App. 819 ( 184 S.E. 769); Raley v. Hatcher, 61 Ga. App. 846 ( 7 S.E.2d 777); Baker v. Shockey, 93 Ga. App. 595 ( 92 S.E.2d 314); Calhoun v. Eaves, 114 Ga. App. 756 ( 152 S.E.2d 805); Koutras v. Lazarus, 122 Ga. App. 870 ( 179 S.E.2d 106). "To hold the head of a family liable under the family purpose doctrine, he must have provided the automobile for the pleasure, comfort or convenience of some member of his family. Ferguson v. Gurley, 218 Ga. 276 ( 127 S.E.2d 462)." Finnocchio v. Lunsford, 129 Ga. App. 694, 695 ( 201 S.E.2d 1). "`In order to qualify as a provider under the family purpose doctrine one must be the principal mover, one who intends to provide for another or others the particular thing, the automobile, and takes steps on his own responsibility to see the consummation of the transaction, and contributes substantially of his own means toward that end without expectation of reimbursement or compensation.' Smith v. Simpson, 260 N.C. 601, 611 ( 133 S.E.2d 474)." Finnocchio v. Lunsford, supra. By her own testimony appellant stated that she instituted the sales transaction and executed the sales documents because her unemployed husband needed a car and could not obtain the necessary credit. "But for" appellant's consummation of the transaction and contribution of her own credit her husband would not have been able to obtain the automobile; surely this qualifies the appellant as a "provider" under our law's definition.
There being ample evidence from which a jury could find appellant to be both the owner and provider of the car, it was not error to refuse to direct a verdict in appellant's favor.
Judgment affirmed. Evans and Stolz, JJ., concur.