Opinion
40375, 40394.
DECIDED OCTOBER 18, 1963.
Action for damages. Columbia Superior Court. Before Judge Kennedy.
Randall Evans, Jr., for Landers.
Congdon Holley, William P. Congdon, R. Eugene Holley, for Medford et al.
1. A minor over fourteen years of age is responsible for his wilful and wanton acts of vandalism.
2. The stepfather of a minor, under seventeen years of age, who is in the custody of his mother, is not liable under the Act of 1956 (Ga. L. 1956, p. 699; Code Ann. § 105-113), for acts of vandalism of such minor.
3. The mother of a minor under seventeen years of age who has the custody of such child is liable under the Act of 1956, supra, for the wilful and wanton acts of vandalism of such child.
DECIDED OCTOBER 18, 1963.
Charles O. Landers sued Ernest Medford, Mrs. Emma Medford and Joe Richard Stanley to recover damages arising from certain alleged acts of Joe Richard Stanley. A guardian ad litem was appointed for Joe Richard Stanley. The petition as amended alleged that Joe Richard Stanley is a minor over fourteen years of age and under seventeen years of age, the son of Mrs. Emma Medford and stepson of Ernest Medford, that the defendant Stanley at night, on April 6, 1963, secretly and without knowledge or consent of the plaintiff took the plaintiff's 1955 Chevrolet from his home and enticed and persuaded the plaintiff's minor son, age thirteen, to accompany him, that plaintiff's son is dominated by the defendant Stanley who is older, larger and stronger than the plaintiff's son, that the defendant Stanley proceeded to drive said automobile through the hours of night when he was too young to drive an automobile, knowing that he did not have the experience to drive an automobile, did not have a driver's license, was driving without the permission of the plaintiff and had persuaded and enticed the plaintiff's son to accompany him, and said Stanley drove the plaintiff's automobile at high and excessive rates of speed of sixty miles per hour and more over the public highways of the county, that said Stanley "drove the said automobile towards Augusta, and turned said car around and proceeded on Wrightsboro Road, while in Columbia County, back into the direction of Grovetown, and he accelerated said automobile to a fast and excessive rate of speed of approximately sixty miles per hour, and while going around a curve, near Gould's store, he drove said car to his left-hand side of the highway and across the center line and into the left-hand lane and thence into the left-hand ditch causing same to strike the left-hand ditch and then the force of impact caused it to turn on its right side," and that as a result of said collision the plaintiff's son was injured and his automobile wrecked. The petition further alleged that the plaintiff's injuries and damages were occasioned as a result of the wilful and wanton misconduct of the defendant Stanley for which he and the other defendants are liable and responsible, and which were as follows: "(a). In secretly taking the plaintiff's automobile without permission, in the hours of darkness, when he was not old enough to drive an automobile, did not have a driver's license, and was too inexperienced to be in charge of an automobile. (b). In enticing the plaintiff's son who was of a younger age and subject to the dominance and persuasions of the said . . . Stanley to accompany him, as a result of which he was injured. (c). In driving said automobile at fast and excessive rates of speed; sixty miles per hour or more, and in undertaking to drive around a curve in the highway at such speed of sixty miles per hour, and in driving to his left-hand side of the highway and across same and into the left-hand ditch causing the car to overturn and as a result of which Charles Kerry Landers was injured." It was also alleged that the acts committed by Stanley were with the intention and for the purpose of damaging the plaintiff's property, to wit: his 1955 Chevrolet.
Each defendant filed general and special demurrers to the plaintiff's petition and on July 17, 1963, the trial court rendered a judgment sustaining the general demurrer of the defendant Ernest Medford and overruling those of the remaining defendants, Mrs. Emma Medford and Joe Richard Stanley. In case No. 40375 the plaintiff assigns error on the judgment sustaining the general demurrer of Ernest Medford and in case No. 40394 Mrs. Emma Medford and Joe Richard Stanley, through his guardian ad litem, assign error on the judgment overruling their general demurrers.
1. The plaintiff's petition against the defendant Stanley set forth a cause of action for the injuries and damages alleged as a result of the wilful and wanton acts charged to him in taking the plaintiff's automobile without permission and wrecking the same as well as for the injuries to the plaintiff's son whom he allegedly enticed and persuaded to accompany him. See Code § 105-1806.
Only the defendants' general demurrers were passed upon by the trial court and no question is presented as to the sufficiency of the special demurrers attacking the petition for a misjoinder of causes of action and defendants since this court cannot rule upon questions not ruled upon by the trial court.
2. The Act of 1956 (Ga. L. 1956, p. 699; Code Ann. § 105-113), on which the plaintiff's action against the mother and stepfather is based reads as follows: "An Act to provide that the parent having the custody and control of a minor child or children under the age of seventeen shall be liable for the wilful and wanton acts of vandalism of said minor child or children and further to provide that nothing in this Act shall be construed to affect liability of said parent under the `family-purpose car doctrine' or any statutes now in force and effect, to repeal conflicting laws and for other purposes. Be it further enacted by the General Assembly of Georgia: Section 1. Every parent having the custody and control of a minor child or children under the age of seventeen shall be liable for the wilful and wanton acts of vandalism of said minor child or children resulting in injury or damage to the person or property of another; provided, however, that this Act shall be cumulative and shall not be restrictive of any remedies now available to any person, firm, or corporation for injuries of [sic] damages arising out of the acts, torts, or negligence of a minor child under the `family-purpose car doctrine' or any statutes now in force and effect in the State of Georgia. Section 2. All laws and parts of laws in conflict with this Act are hereby repealed."
In Faith v. Massengill, 104 Ga. App. 348 ( 121 S.E.2d 657), this court was dealing with a city ordinance making it unlawful for any parent having custody of any child under twelve years of age to permit such child to have in his possession an air rifle or "BB" gun within the corporate limits. In that case, brought against both the mother and father of an eight year old child, it was held that while the father would be guilty of negligence per se in permitting the child to possess an air rifle or "BB" gun, the mother (since the father was the natural guardian under the facts of the case and as such had the custody and management of the child), could not have custody of the child so as to be guilty under the ordinance.
The Act relied upon in the case sub judice is very similarly worded in so far as it refers to "parent having custody" and under the holding in the Faith case, supra, only the parent having custody of the minor could be held responsible for his acts of vandalism. "Courts may examine the caption as an aid to interpretation of a doubtful statute. Eason v. Morrison, 181 Ga. 322 ( 182 S.E. 163)." Thompson v. Eastern Air Lines, 200 Ga. 216, 223 ( 39 S.E.2d 225). The caption or title of the 1956 Act, supra, which provides in part that "The parent having the custody and control of a minor child... shall be liable..." supports the interpretation that only one parent shall be liable for the acts of vandalism.
The plaintiff's petition, while alleging that both the mother and stepfather stand in loco parentis and have custody of Stanley, shows that Emma Medford was the parent having custody and control of Stanley and consequently the general demurrer of Ernest Medford was properly sustained since in the absence of the liability created by the Act of 1956, supra, no cause of action could be set forth against him. See in this connection the cases collected in Herrin v. Lamar, 106 Ga. App. 91, 93 ( 126 S.E.2d 454).
3. Under the above holding the petition set forth a cause of action against Emma Medford if the petition set forth facts to show that the plaintiff's injuries and damages were caused by the acts of vandalism by Stanley as referred to in the Act of 1956, supra. This Act makes the parent "liable for the wilful and wanton acts of vandalism of said minor child."
For a history of the word "vandalism" see General Accident Fire c. Assurance Corp. v. Azar, 103 Ga. App. 215, 218 ( 119 S.E.2d 82), quoting from 91 CJS, p. 802, "Vandalism." Such word now refers to the destruction of all property under certain conditions. The Act of 1956, supra, refers to wilful and wanton destruction of property. In Arrington v. Trammell, 83 Ga. App. 107, 110 ( 62 S.E.2d 451), Judge Townsend compiled numerous cases dealing with the meaning of the phrase "wilful and wanton." In that case it is made clear that a wilful and wanton act is one done intentionally or with a reckless disregard for the consequences.
The allegations of the petition, as shown by the statement of facts, were sufficient to charge the defendant Stanley with committing acts of wilful and wanton vandalism and to set forth a cause of action against his mother, Mrs. Emma Medford, under the Act of 1956, supra. The trial court did not err in overruling her general demurrer to plaintiff's petition.
Judgment affirmed in both cases. Frankum and Jordan, JJ., concur.