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HIRSH v. ANDREWS et al. (two cases).
Damages; from Fulton Superior Court-- Judge Pharr. November 7, 1949.
The judgment overruling the demurrers was not error for any reason assigned.
Mr. and Mrs. F. J. Andrews filed in Fulton Superior Court separate petitions joining Mr. and Mrs. Isaac B. Hirsh as defendants in, which they alleged injuries received when the automobile driven by Mr. Andrews and in which Mrs. Andrews was riding collided with an automobile negligently driven by Mrs. Hirsh.
The demurrers of Mr. Hirsh made to one paragraph identical in the two petitions was overruled and he excepted, and filed separate bills of exceptions assigning error on this ruling, one naming Mr. Andrews and Mrs. Isaac B. Hirsh as defendants in error (case No. 32861), the other naming as defendants in error Mrs. Andrews and Mrs. Isaac B. Hirsh (case No. 32862).
As only one paragraph of the petitions, the demurrer thereto and the ruling thereon, is in question in these cases as presented by the bills of exceptions, it is unnecessary to set out the pleadings in detail.
The paragraph in issue is paragraph 4, which as finally stated by second voluntary amendment, is as follows: "That there approached said car [plaintiffs'] at said time an automobile operated by the defendant Mrs. Hirsh, at the approximate speed of seventy (70) miles per hour, said automobile being furnished by the defendant, Mr. Hirsh, as a family car, for the use, pleasure and convenience of the defendant, Mrs. Hirsh."
The demurrer of Mr. Hirsh was on the following grounds: "1. Defendant demurs specially to paragraph 4 of said amended petition because it is too vague and indefinite and omits an essential particular; to wit, whether Mr. Hirsh or Mrs. Hirsh is the owner of the automobile therein referred to. 2. Defendant demurs generally to said amended petition because it fails to state a cause of action against the defendant. Wherefore, without insisting on any other grounds of his previously filed demurrer, defendant prays that each and every ground of this demurrer be sustained."
Error is assigned on the judgment overruling these demurrers.
While it is doubtless true as a matter of statistics that most automobiles maintained for family pleasure and convenience are owned and maintained by the head of the family, ownership in itself is not the basis of liability under the "family-purpose" doctrine in this State. This is clearly ruled in Hexter v. Burgess, 52 Ga. App. 819 (184 S. E. 769), where the husband's liability was not altered by the fact that the automobile which he provided for family use was owned by a corporation of which he was an officer. As the court stated in that case, "Agency, not ownership is the test of liability."
This being true, treating the demurrer directed to paragraph 4 of the petition as a special demurrer, it is itself not good. The only point made specifically is not ground for demurrer, as will be clear from the case cited above, and it fails to lay its finger on any other point wherein the paragraph is defective. See, in this connection, Katz v. Turner, 49 Ga. App. 81 (174 S. E. 167), and cases there cited.
Treated as a general demurrer we do not think that it is good either. Counsel for the plaintiff in error argue that as the "family-purpose" doctrine in this State is based on the theory of agency, ownership of the automobile should have been alleged, as, they argue, "ownership goes to the question of control," and argue further that in order for the husband to be liable under the "family-purpose" doctrine he must intend the end, that is, the pleasure and convenience of his wife, and must control the means, that is, the automobile. They thus contend that the petition should have been dismissed on general demurrer because it nowhere alleges that the husband had control of the automobile.
The "family-purpose" doctrine has been applied in numerous cases and somewhat variously stated. Perhaps as good a verbal summary of the elements out of which the doctrine is compounded as any to be found in our reports, is that of Judge Parker in Cohen v. Whiteman, 75 Ga. App. 286, 290 (43 S. E. 2d, 184): "While liability under the 'family-purpose doctrine' is not founded altogether on the existence of a family relationship, but is predicated also on the principles of the law of agency, or of master and servant, it is well settled that when the head of a family makes it his business to entertain or furnish pleasure to members of his family, a liability arises under the law of principal and agent and of master and servant, and the member of the family using the automobile for the purposes for which it is kept and maintained by the head of the family becomes in legal contemplation the agent or servant of the owner."
An analysis of this statement will show basically, We think, two necessary and controlling elements (1) the making avail-able an automobile for family use, and (2) liability arising when the automobile so furnished is used Within the scope of the purposes for which it Was made available.
We think it is clear from the petition that the liability of Mr. Hirsh is plainly sought to be established under the "family-purpose" doctrine, and, as against general demurrer, this is sufficient.
Whatever interpretation the word "furnished" might have, it is, after all, a question of proof on the trial, and Mr. Hirsh will be liable or not as the facts developed in evidence do or do not bring him within the "family-purpose" doctrine as applied in this State.
The judgment overruling the demurrers Was not error for any reason assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.
Hewlett & Dennis, Sam D. Hewlett Jr., contra.
C. Baxter Jones Jr., Powell, Goldstein, Frazer & Murphy, for plaintiff in error.
Saturday May 23 06:01 EDT

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