Poythress v. Doerner , 129 Ga. App. 594 ( 1973 )

Hall, Presiding Judge.

Defendants belows, Willie Clarence Poythress and Virginia Poythress, appeal from the denial of their motions for directed verdicts at the close of plaintiffs evidence. The defendants presented no evidence, and the court without a jury granted judgment to plaintiff Doerner for $150 for damages to his motorbike occasioned by a collision with an automobile admittedly owned by Virginia Poythress and driven at the time by Willie Poythress. In their answer to plaintiffs complaint, the Poythresses admitted that service on both of them was proper at the same address.

Argued July 10, 1973 Decided September 6, 1973. Richard D. Ellenberg, for appellants. Zachary & Segraves, William E. Zachary, Jr., for appellee.

Counsel having withdrawn in oral argument an additional ground for appeal, thus in effect withdrawing entirely the appeal in behalf of Willie Poythress, the only issue remaining is whether the elements required to invoke the family purpose doctrine were sufficiently shown to render Virginia Poythress liable thereunder for damages resulting from Willie’s collision while driving her car.

The trial transcript shows that although plaintiff attempted to testify that Virginia Poythress was Willie’s mother, this testimony was objected to and the objection was sustained. This ruling is not alleged to be erroneous. There is no evidence whatever of any family relationship between the defendants except their common last name and their mutual address, and, contrary to the contention of appellee Doerner, the limited facts here create no presumption that the vehicle was a family purpose automobile. See Durden v. Maddox, 73 Ga. App. 491, 492 (37 SE2d 219). There is no evidence of the defendants’ respective ages. There is no evidence whatever that Virginia made her car available for the use or convenience of Willie or that he drove it on this occasion with her knowledge or acquiscence.

Plaintiff having entirely failed to prove the elements of the family purpose doctrine, the trial judge erred in failing to grant Virginia Poythress’ motion for directed verdict. See Griffin v. Russell, 144 Ga. 275 (87 SE 10, LRA 1916F 216, AC 1917D 994); Ferguson v. Gurley, 218 Ga. 276 (127 SE2d 462).

Judgment reversed as to appellant Virginia Poythress. Appeal withdrawn as to Willie Poythress.

Evans and Clark, JJ., concur.