Summary
In Pritchett v. Williams, 115 Ga. App. 8 (153 S.E.2d 639), this question is discussed, and a finding made against the owner's responsibility.
Summary of this case from Trust Co. of Ga. v. HowardOpinion
42446.
ARGUED JANUARY 3, 1967.
DECIDED JANUARY 10, 1967.
Action for damages. DeKalb Superior Court. Before Judge Hubert.
Sams Sams, Marion A. Sams, for appellant.
J. V. Malcolm, Jr., for appellees.
When there are no particular facts sufficient to show that the owner of a family purpose automobile authorized a family member to delegate his authority to drive the automobile, the owner is not liable for injuries arising out of the operation of the automobile by another person at the request of and for the convenience and comfort of the family member but outside his presence and control.
ARGUED JANUARY 3, 1967 — DECIDED JANUARY 10, 1967.
The plaintiff appeals from a judgment of the DeKalb Superior Court overruling his petition for certiorari to review a judgment of the Civil and Criminal Court of DeKalb County sustaining the general demurrers of one of the defendants to the plaintiff's petition.
The petition alleged that the defendant maintained a family car for the pleasure, comfort, and convenience of her minor son and members of her family; that while this son had the automobile in his possession and control and had his mother's permission and consent to operate it, he delivered it to the co-defendant for the purpose of procuring cigarettes for the defendant's son; and that while the co-defendant was driving the automobile at the instance and request of the defendant's son he negligently damaged the plaintiff's automobile. The plaintiff contends that the defendant's son had implied authority to have the co-defendant drive the car for the purpose alleged, making the owner liable for the co-defendant's negligence under the family purpose rule.
Our courts have held that a parent who furnishes a car to a son for family purposes 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 being used in furtherance of the purposes of a family car. Cohen v. Whiteman, 75 Ga. App. 286 ( 43 S.E.2d 184); Myrick v. Sievers, 104 Ga. App. 95 ( 121 S.E.2d 185); accord Golden v. Medford, 189 Ga. 614 ( 7 S.E.2d 236). The decisions adopting the family car doctrine as the law of Georgia were "based squarely upon the relation of master and servant or principal and agent" ( Hubert v. Harpe, 181 Ga. 168, 171 ( 182 S.E. 167); Evans v. Caldwell, 184 Ga. 203 ( 190 S.E. 582), cf. Sledge v. Law, 113 Ga. App. 746, 748 ( 149 S.E.2d 758), the child to whom a parent furnished a car for his pleasure and convenience being deemed to occupy the position of a servant or agent of the parent ( Griffin v. Russell, 144 Ga. 275 ( 87 S.E. 10, LRA 1916F 216, AC 1917D 994)).
An agent, unless his principal authorizes him to delegate his responsibility, is not authorized to procure another to operate an automobile in furtherance of the purposes of the agency. White v. Levi Co., 137 Ga. 269 ( 73 S.E. 376); Carter v. Bishop, 209 Ga. 919, 927 ( 76 S.E.2d 784); Cowart v. Jordan, 75 Ga. App. 855 ( 44 S.E.2d 804); 8 AmJur2d 200, Automobiles and Highway Traffic, § 643; 60 CJS 1087, Motor Vehicles, § 436b. The Cohen, Myrick, and Golden cases, supra, may be said to come within an exception to the rule just stated, based on the fact that the agent is present and directing and controlling the operation of the automobile by another person. 8 AmJur2d 201, § 643; 60 CJS 1089, § 436b. In no case in Georgia has it been held that the parent is liable when the son or family member was not in the automobile and directing its use, or when it was not being used for a family purpose. See Samples v. Shaw, 47 Ga. App. 337, 339 ( 170 S.E. 389); Mason v. Powell, 92 Ga. App. 496, 498 ( 88 S.E.2d 734); Johnson v. Brant, 93 Ga. App. 44 ( 90 S.E.2d 587).
The fact that an automobile owner gives a family member possession and permission and consent to operate an automobile for family purposes does not alone imply that the owner authorizes the family member to delegate to another his authority to operate the automobile outside his presence, direction and control. See 5A Blashfield, Cyclopedia of Automobile Law and Practice 82, § 3121; 8 AmJur2d 149, Automobiles and Highway Traffic, § 594. When there are no particular facts sufficient to show that an automobile owner has authorized a family member to authorize another person to drive the automobile, the owner is not liable under the family purpose rule for injuries caused by the negligent operation of the automobile by the third person outside the presence and control of the family member.
The superior court did not err in overruling the plaintiff's petition for certiorari.
Judgment affirmed. Felton, C. J., and Eberhardt, J., concur.