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DOSS et al. v. MILLER, by next friend, et al.
34302.
Action for damages; from DeKalb Superior Court-- Judge Guess. August 11, 1952.
GARDNER, P. J.
1. Where a husband furnishes an automobile for the comfort and pleasure of his family, and where his wife, a member of his family, in operating this automobile to transport the plaintiff and her own child to and from school is negligent, which negligence results in the plaintiff's injury, such negligence is imputable to the husband and he is liable therefor under the family-purpose-car doctrine.
2. Where the operator of an automobile, in which the plaintiff has been riding daily to and from school, parks the same on the wrong side of the street and across the street from the schoolhouse, and more than six inches from the curb, in violation of a municipal ordinance, and permits the plaintiff, a child around 7 years of age, to get out of the car and start across the street during a rain and at a time when the children are being let out of school and other motor vehicles are likely to be using this street, and this child in so doing is struck by another automobile, being negligently operated, a jury question is presented as to whether or not the driver of the car striking her is negligent and whether such negligence contributed to the plaintiff's injury.
Virginia Ann Miller, an infant, 7 years of age, by her father, R. A. Miller, as next friend, (hereinafter called the plaintiff), brought suit in DeKalb Superior Court against Mrs. Sarah L. Sechler, Mrs. Arthur Doss, and her husband, Arthur Doss, (hereinafter called the defendants), to recover damages for certain personal injuries sustained by the plaintiff as a result of the alleged negligence of the defendants. It appeared from the allegations of the plaintiff's petition that on March 18, 1952, she was a student at the Kirkwood Public School in the City of Atlanta; that on said date around 1:40 p. m., after having been dismissed from such school for the day, the plaintiff had entered the automobile of the defendant, Mrs. Arthur Doss, with whom she had been accustomed to ride to and from said school; that Mrs. Arthur Doss parked their automobile across Kirkwood Road from said school building, headed in a southerly direction, necessitating the crossing of that road in order to reach the school; that at said time many children were getting out of said school building and were crossing the street; that it was a dark, murky and rainy day; that the plaintiff informed the said Mrs. Doss that she must return to the school building and must go back across the street; that the plaintiff disembarked from the car on the left side, next to the curb, and walked to the back of the car, and then started to cross said street, proceeding from behind the automobile of Mrs. Doss, when she was struck by an automobile being driven by Mrs. Sarah L. Sechler, which was proceeding south on said Kirkwood Road, the same direction in which Mrs. Doss's car was headed; that the car of Mrs. Sechler was being operated approximately in the middle of the road and did not stop to wait until Mrs. Doss drove her car forward or over on to the proper side of this road, which was her right-hand side, but the front of Mrs. Sechler's car struck the plaintiff as she reached the above-described point; that some fifty to a hundred school children were walking and running across this street with their heads down, because it was raining at the time; that Mrs. Sechler operated her automobile at said time without having it in proper control, and at a speed which was greater than was reasonable and safe, having due regard to the conditions then existing, and she did not sound her horn, but approached the car of Mrs. Doss, which was transporting children, while it was stopped and engaged in taking on and discharging school children therefrom; that Mrs. Doss failed to place her automobile with its right side near the curb, which would have been on her right side of said road, but placed it where the left side thereof was near the curb and on the left side of said road; that Mrs. Doss permitted the plaintiff to leave her automobile and go across this street towards said schoolhouse, with full knowledge that Mrs. Sechler and others were driving to and fro upon this road; that had Mrs. Doss parked her automobile on the right side of said road, the plaintiff would not have been injured; and that said Kirkwood Road where
this took place is in the City of Atlanta. It was further alleged in the petition that the defendant Mrs. Doss parked her automobile within 30 feet of the entrance to said school building; that the defendant Arthur Doss kept and maintained said automobile, so operated by Mrs. Doss, for the use and comfort of his family, and that she was engaged in using the same for the purposes of the family in transporting her child and other children from this school on the date in question; that under this doctrine the defendant Arthur Doss is liable for any negligence of Mrs. Doss in the operation of his automobile; that Mrs. Doss was using this automobile at said time and place to carry school children to and from said school building, and upon and over the streets of said city, for which transportation the plaintiff's father paid to Arthur Doss and his wife the sum of ten cents per day. It was set out in the petition that the plaintiff was injured by reason of the negligence of the said defendants, and that Mrs. Doss was negligent in the operation of her car in the following particulars: (a) in parking her car on the left side of the street so as to cause the plaintiff to cross Kirkwood Road in coming to and from said automobile; (b) in failing to park her car and stop the same on the right side of said road in such a place that the plaintiff, in entering and leaving the same, would not be exposed to the possibility of being run over by automobiles operating on Kirkwood Road; (c) in permitting the plaintiff to leave the automobile and to across the street towards the school building, with full knowledge that others were driving their automobiles to and fro in front of the school building, and while the automobile being operated by Mrs. Doss was illegally parked, (d) in stopping and parking her automobile in a roadway other than parallel with the edge of the road ahead in the direction of the lawful traffic movement, and "with the right hand wheels of the vehicle on the left side of the road, and not within six inches of the curb in violation of City of Atlanta Code 88-1201 which was negligence per se, (e) in stopping, standing and parking said vehicle within a space of 30 feet in front of the entrance of said school building in violation of the Code of said city, 88-1301, which was negligence per se, and (f) then the automobile was not in motion, in failing to place the right side thereof as near to the right side of the highway as practicable, in violation of Code 68-303, which was negligence per se. The plaintiff also alleged that the defendant Mrs. Sechler was negligent in various particulars, which need not be set out herein.
The defendants Mrs. Arthur Doss and Arthur Doss demurred to the petition, generally, contending that it did not appear that their negligence, if any, was the proximate cause of the plaintiff's injury, but that the plaintiff's injury was due to being struck by Mrs. Sechler's car. The defendant Mrs. Sechler did not demur to the petition. The trial judge overruled the demurrer of Arthur Doss and Mrs. Arthur Doss, and to this judgment the defendants excepted.
1. The case is in this court upon exception by the defendants Arthur Doss and Mrs. Arthur Doss to the overruling by the court of their general demurrer to the petition. The operator of the automobile at the time the plaintiff was injured was the defendant Mrs. Arthur Doss, and it is alleged that she was negligent in driving said car and that Arthur Doss is liable, in that the negligence of his wife is imputable to him under the family-purpose-car doctrine. It therefore follows that if the defendant Mrs. Doss is liable to the plaintiff under the allegations of her petition, then Arthur Doss, her husband, will be liable if it appears that the automobile being driven by Mrs. Doss was, at the time, a family-purpose automobile, and if it was being used for the family purposes at the time the plaintiff was hurt. See Griffin v. Russell, 144 Ga. 275 (87 S. E. 10); Hubert v. Harpe, 181 Ga. 168 (182 S. E. 167); Ficklen v. Heichelheim, 49 Ga. App. 777 (176 S. E. 540); Code, 105-108. Where the owner of an automobile furnishes the same to members of his family, including his wife, for the pleasure, comfort, and convenience of the family, he is liable for an injury caused by the negligent operation of the automobile by his wife while using the same in carrying their child to and from school. See Griffin v. Russell, supra; Evans v. Caldwell, 184 Ga. 203 (190 S. E. 582); Golden v. Medford, 189 Ga. 614 (7 S. E. 2d, 236). The fact that the wife was transporting in the car other children to and from this school building would not of itself render this doctrine inapplicable. In such a case the liability of the husband for the negligent operation of the automobile by the wife is under the doctrine of respondeat superior as provided under Code 105-108.
It sufficiently appeared from the allegations of the petition that the automobile involved was being driven by the defendant Mrs. Arthur Doss at the time of the alleged injury as a family-purpose automobile, and that the defendant Arthur Doss would be liable for the injury to the plaintiff, if the jury should find that Mrs. Doss was negligent, and the plaintiff's injury was caused by the negligent operation of the car by Mrs. Doss concurring with negligence of Mrs. Sechler and contributing to the plaintiff's injury.
2. But it is insisted by the defendants that the alleged negligence of Mrs. Doss was not the proximate cause of the plaintiff's injury, but that it affirmatively appeared from the allegations of the petition that the sole and proximate cause thereof was the negligence of Mrs. Sechler in driving the automobile which actually struck the plaintiff and inflicted the hurts of which complaint is made. With this we do not agree. In Southern Railway Co. v. Blanton, 56 Ga. App. 232, 241 (192 S. E. 437), the principle is well stated, to wit: "It is a well settled principle of law that where two concurrent causes operate directly in bringing about an injury, there can be a recovery against either one or both of the responsible parties. The mere fact that the injury would not have been sustained had only one of the acts of negligence occurred will not of itself operate to define and limit the other act as constituting the proximate cause; for if both acts of negligence contributed directly and concurrently in bringing about the injury, they together will constitute the proximate cause . . . The determination of questions as to what constitutes the proximate cause of an injury complained of may be directly involved as one of the essential elements and disputed issues in the ascertainment of what negligence, as well as whose negligence, the injury is properly attributable to." It appeared from the petition that had Mrs. Doss not parked her automobile on the wrong side of said street and more than six inches from the curb, in violation of an ordinance of the City of Atlanta, and then permitted this child of tender age, who was in her care, to get out of her car and attempt to cross this street to return to the building, at a time when it was raining and there were likely to be other automobiles using this street to pick up school children, the plaintiff would not have been hurt. A jury could well determine that the alleged negligence of this defendant in the above regard contributed directly to the plaintiff's injury and constituted a proximate and concurring cause thereof. In Houston v. Taylor, 50 Ga. App. 811 (179 S. E. 207), it appeared that the defendant had stopped his automobile more than six inches from the curb, in violation of a city ordinance and offered a ride to a minor waiting for a streetcar, and that this minor was struck while attempting to get into the defendant's automobile; and this court held that the ordinance requiring an automobile to be parked within six inches of the curb of a street was for the benefit of pedestrians as well as motorists, and that the defendant was liable to the minor because of such negligence. In Locke v. Ford, 54 Ga. App. 322 (187 S. E. 715), the court ruled that a taxicab driver was liable where he had permitted a child to disembark from the taxicab in the center of a heavily traveled street, whereupon she was struck by an approaching truck; and that the petition set out a cause of action against both the driver of the taxicab and the driver of the truck. This court in the cases of Allyn & Bacon v. Nicholson, 58 Ga. App. 729 (199 S. E. 771), and Gazaway v. Nicholson, 61 Ga. App. 3 (5 S. E. 2d, 391), which grew out of the same occurrence, ruled that where a school bus stopped on the wrong side of the road and permitted a child to get out of the bus and to go across the road where she was hit by another automobile, the petition against both defendants (the driver of the bus and the automobile hitting the child) stated a cause of action as to each; and that the negligence of the bus driver concurred with the negligence of the driver of the automobile striking the child in producing the injuries sued for.
It cannot be held as a matter of law that Mrs. Arthur Doss, who was transporting the plaintiff and other children, including her own, in this automobile, to and from the Kirkwood School--the plaintiff's father paying to the defendants Arthur Doss and Mrs. Arthur Doss the sum of ten cents daily for carrying the plaintiff--was not under a duty to exercise due care towards the plaintiff and that Mrs. Doss did not fail to exercise this care and was consequently not negligent when she permitted the child to get out of the automobile on this occasion, when the car was parked on the wrong side of said street, more than six inches from the curb, and across the street from the school building, and when she allowed the child to attempt to cross this street in order to go back to the school building, at a time when the children were getting out of school and other vehicles were likely to be using this street, and when it was raining, affecting the visibility of such other persons. Had Mrs. Doss not parked her automobile across the street from the school and more than six inches from the curb, the plaintiff in getting out of the same in order to return to the school building would not have had to cross this street, and had she not attempted to cross this street, she would not have been struck by the automobile of Mrs. Sechler, which the petition alleges was being negligently driven along this street at the time the child sought to cross the street. Therefore, a jury could find, from the plaintiff's petition, that the concurrent acts of negligence of the two defendants brought about the plaintiff's injury, and it was not error to overrule the general demurrer of the defendants Arthur Doss and Mrs. Arthur Doss, to the petition.
Whether or not the defendant Mrs. Arthur Doss was negligent in the circumstances alleged would not depend upon whether or not the plaintiff was a passenger in this automobile in view of the payment by the father of ten cents per day for her to ride in this car on her way to and from school. A jury would be authorized to find that Mrs. Doss undertook the duty of taking this child to and from school. She owed to the child the duty not to negligently permit her to alight from the automobile and cross this street under the circumstances alleged. Nothing to the contrary is held in Nash v. Reed, 81 Ga. App. 473 (59 S. E. 2d, 259), Holtzinger v. Scarborough, 69 Ga. App. 117 (24 S. E. 2d, 869), or Atlantic Co. v. Taylor, 80 Ga. App. 25 (54 S. E. 2d, 910). We do not hold that the defendant Mrs. Arthur Doss was under the duty of exercising extraordinary care and diligence far the safety of the plaintiff or that this defendant was, at the time, operating a public conveyance. See Sheffield v. Lovering, 51 Ga. App. 353 (180 S. E. 523). This was not a regular school bus, such as is dealt with in the Sheffield case. Hanks v. Georgia Power Co., 86 Ga. App. 654 (72 S. E. 2d, 198), is not authority for holding that Mrs. Arthur Doss had, by permitting the plaintiff to alight from the automobile, discharged her duty to the plaintiff. The facts of the Hanks case and the case at bar differ materially.
We do not, in the view which we take of the law as applied to the allegations of the petition, deal with whether or not the ten cents per day paid by the father of the plaintiff to both these defendants in and of itself created any liability other than that Mrs. Doss exercise due care under the circumstances for the safety of the plaintiff child, or whether any relation of private and contract carrier and passenger was created, or whether Mrs. Doss and her husband for ten cents per day were transporting the plaintiff and the other children in a public conveyance or in a school bus. The jury could well consider such fact, along with the other facts. The jury could determine that the child's father was thereby intending to share in the expense of the operation of the automobile. The length of the trips to and from school does not appear. What we do hold is that the facts alleged, if proven, would authorize a jury to find that the defendant Mrs. Doss did not exercise ordinary care, under all the circumstances, and that the plaintiff child, who was certainly properly riding in the car, was injured as a result thereof.
It follows from the above that the trial court did not err in overruling the general demurrer of the defendants Arthur Doss and his wife, Mrs. Arthur Doss, to the petition.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
Moise, Post & Gardner, Fraser & Shelfer, Hugh E. Wright, contra.
Dunaway, Howard & Embry, for plaintiffs in error.
DECIDED OCTOBER 21, 1952 -- REHEARING DENIED NOVEMBER 19, 1952.
Saturday May 23 04:42 EDT


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