Opinion
35697, 35698.
DECIDED NOVEMBER 17, 1955.
Action for damages. Before Judge Renfroe. Bulloch Superior Court. February 17, 1955.
Reese, Bennet Gilbert, for plaintiffs in error.
Oliver, Davis Maner, contra.
The owner of an automobile is not liable for negligence in the operation of the machine when it is loaned to another and is used for the personal business of the borrower, nothing more appearing, since under such circumstances the borrower is a mere bailee whose negligence is not imputable to the owner.
DECIDED NOVEMBER 17, 1955.
Action for damages were filed in the Superior Court of Bulloch County by Frances M. Johnson, a minor, and by her father Sidney E. Johnson, against Lawrence Brant, seeking money judgments for injuries inflicted upon Frances M. Johnson as the result of an automobile collision. The petitions allege that the defendant is the owner of the automobile in which the minor plaintiff was riding as a guest at the time she was injured; that the defendant purchased the car for use by himself and members of his family and for their pleasure, comfort and convenience; that he customarily allowed his minor son, Benjamin Brant, who resided with and was dependent upon the defendant, to use the automobile for such purposes; that when said son departed for college, the defendant permitted him to take the automobile with him and authorized him to use and enjoy it as he saw fit in order to promote his son's pleasure and enhance his prestige; that this authorization included permission for his son to lend the automobile to other persons; that on several occasions the son did lend the automobile to a fellow student, Joseph Kent III; that on September 26, 1952, the said Kent borrowed the automobile from the defendant's son for use by Kent during a date with a student at the Georgia State College for Women; that Kent also invited another couple, one of them being the plaintiff, to ride with them, and that, due to specified acts of negligence on the part of Kent she sustained the injuries for which she and her father in their respective petitions seek recovery. General demurrers to the petitions were sustained, and the exceptions are to these judgments.
It has been settled in this State since the decision in Griffin v. Russell, 144 Ga. 275 ( 87 S.E. 10, L.R.A. 1916F 216, Ann. Cas. 1917D 994), and the further coverage of the subject in Hubert v. Harpe, 181 Ga. 168 ( 182 S.E. 167), that liability under the family-purpose doctrine rests upon the same principles of law as that governing master and servant or principal and agent. The Griffin case dealt with a minor child residing with the parent. The Hubert case dealt with an adult and self-sustaining son to whom the privilege of using a family ear was furnished. These cases and the line of decisions predicated upon them clearly lay down the rule that a member of a family who injures another while using the car for his own purposes within the scope of the business for which the car is maintained — that is, the pleasure, comfort and convenience of a member of the family — renders the head of the family who furnishes such automobile liable under the doctrine of respondeat superior. In two cases this doctrine has been so applied as to permit recovery against the owner where the family member was not actually the driver, but where such member, with express or implied authority "not only to ride in but to direct the operation of the car by others for his own pleasure" ( Golden v. Medford, 189 Ga. 614, 7 S.E.2d 236) permitted another to actually drive the car while "the son retained control, authority and direction over the automobile, and he remained in the automobile which was still in his possession, custody and control, and it was still being used when the collision with the truck occurred in furtherance of the purposes and objects contemplated in its use as a family car" ( Cohen v. Whiteman, 75 Ga. App. 286, 290, 43 S.E.2d 184). It is therefore recognized that a member of a family for whose pleasure, comfort and convenience an automobile is furnished may use such automobile for his pleasure and convenience, and may under certain circumstances, in so using it, obtain the services of another person to operate it for him, he being present and the car being under his direction or control and the use to which it is put being the accomplishment of a mission of his own, and the owner who furnishes such automobile may still be liable under the doctrine of respondeat superior.
As opposed to the principles of agency or of master and servant in this connection there is the law of bailment, under which it is well established that one who merely lends an automobile to another for purposes of the latter is not liable for negligence in the operation of the automobile except under special circumstances, such as knowledge that he is turning the car over to a reckless and incompetent driver, or that the automobile has some mechanical defect. Even in such cases, liability is predicated on a negligent act of the owner in turning the car over to another under such circumstances, not on respondeat superior. Burks v. Green, 85 Ga. App. 327 ( 69 S.E.2d 686); Gay v. Healan, 88 Ga. App. 533 ( 77 S.E.2d 47). Where no negligence is alleged against the owner or a member of his family, and where the operator of the vehicle whose negligence is the cause of the injuries received is not a servant or agent of the owner not a servant or agent of a member of the owner's family who would have a right, under the family-car doctrine, to employ the services of another to drive him while he was using the car for the purpose for which such family car was maintained, the owner is not liable. Mason v. Powell, 92 Ga. App. 496 ( 88 S.E.2d 734).
The result, so far as this petition is concerned, would be the same if the defendant owner of the vehicle had himself lent his automobile to Kent, a friend and fellow student of his son, for Kent's pleasure in taking his friends for a ride. Where, as here, the driver is only a borrower and the transaction is only a bailment, there is no liability under the doctrine of respondeat superior. Fielder v. Davison, 139 Ga. 509 (5) ( 77 S.E. 618). See also Raley v. Hatcher, 61 Ga. App. 846 ( 7 S.E.2d 777); Graham v. Cleveland, 58 Ga. App. 810 ( 200 S.E. 184). The fact that the son had a right to use the car as he pleased for his own purposes is not sufficient to make his father, the defendant owner, liable where the son lent the car to another under circumstances where, had the defendant himself lent the car to such other he would not be liable. Nor can we find where the allegation that the father entrusted the automobile with his son "to promote his said son's pleasure and to enhance his prestige" strengthens the case, granting that it might enhance the son's prestige to lend his automobile to his fellow students. It is not the motive of the defendant in making the automobile available, but the use to which it is put which determines liability. For example, a dealer who permits a prospective customer to borrow a car to try out, in the hope that the latter will purchase it from him, is a bailor, and the transaction is a loan, regardless of the lender's motive (a hope that eventual gain will result to him thereby). Bowyer v. Cummins, 81 Ga. App. 118 ( 58 S.E.2d 224). At the time of the collision, the automobile was being operated by Kent, a borrower, solely for his own purposes. No acts of negligence were alleged either against the owner or his son. Accordingly, the trial court did not err in sustaining the general demurrers of the defendant owner and dismissing the petition.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.