Cohen v. Whiteman , 75 Ga. App. 286 ( 1947 )

As I understand the law in respect to the "family-purpose doctrine," it is that the head of a family is liable for the negligence of the authorized driver of a family-purpose car because the furnishing of the car for family purposes is the business of the owner and constitutes the members of the family for whom the car is furnished agents of the owner in the prosecution of his business. The liability of the owner is based exclusively on the agency of the family member. Dougherty v. Woodward, 21 Ga. App. 427 (94 S.E. 636); Griffin v.Russell, 144 Ga. 275 (supra). It seems to me that the question of liability in this case must be decided on the general principles of agency as decided by the courts of this State and not on "some new and anomalous slant applied by the courts to the principles of agency" not applicable to other cases involving the relationship of principal and agent. It has been held by the courts of this State that, "If a servant who is employed to do certain work for his master employs another person to assist him, the master is liable for the negligence of the assistant only when the servant had authority, express or implied, to employ him, or when the act of employment is ratified by the master."Cooper v. Lowery, 4 Ga. App. 120 (60 S.E. 1015); White v. Levi Co., 137 Ga. 269 (73 S.E. 376); Samples v.Shaw, 47 Ga. App. 337 (170 S.E. 389); Atlanta West PointR. Co. v. West, 121 Ga. 641 (49 S.E. 711, 67 L.R.A. 701, 104 Am. St. R. 179); Schumer v. Register, 12 Ga. App. 743 (supra); Western Atlantic R. Co. v. Jackson, 21 Ga. App. 50 (93 S.E. 547); Pearce, Young, Angel Co. v. Ward, 72 Ga. App. 89 (33 S.E.2d 39). In I Restatement of the Law of Agency, § 241 (e), it is stated: "A servant, while remaining with the instrumentality, may surrender its immediate control to another, as where the driver of a truck permits a boy to drive it. Although such surrender is not negligent, the master remains subject to liability for any negligence of the employee in supervising the conduct of the other. However, in the absence of negligence by his servant, the master is not liable for any casual negligence of the other while under the supervision of the servant." At least some of the cases, and this includes all of the cases cited in the majority opinion from foreign jurisdictions, holding the head of a family liable in such cases as this originated in States where it was held by the courts that the master is liable for the acts of a substitute on the theory that the servant or agent was present and that the act of the substitute is the act of the agent. If that were the law in Georgia as to master and servant generally, then I would agree that the rule is applicable in a case like the instant one. Unlike the majority, I can not see any magic in the principal and agent relationship as between the head and a member of the family, brought into play by the family-car doctrine, which makes it any different from any other principal and agent relationship. Except as to necessaries, a wife's agency for her husband stands on the same footing as to existence and proof, as any other agency. The same is true as to parent and child. The methods of proof may vary, but the principles involved remain the same. At this point it might be well to refer to the basis of the instant case. The amendment to the petition alleged that when the son directed his friend to drive the car the son had not relinquished control over it. If this allegation is construed to mean that the son had as complete control over the car as when he was driving himself it is false on the face of it. Construing the petition against the pleader, the case is based solely on the son's permitting the friend to drive and the son's presence in the car. It is not based on any negligence of the son either in knowingly permitting an incompetent person to drive or in negligently supervising the operation of the car under "circumstances where supervision could be found to be effective." To my mind the Supreme Court of this State has clearly declared what the law is in a case similar to this in its answer to a question certified by this court. Golden v. Medford, 189 Ga. 614 (supra). It will be noted that the question asked the Supreme Court omitted the question of "implied authority" on the part of the husband to obtain a substitute driver. The Supreme Court construed the question as stating that the husband had authority to do what he did, either expressly or impliedly, and answered the question accordingly. The court's citation of the case ofWhite v. Levi Co. is not without significance. To me it says again that the principle stated in White v. Levi Co. is still the law, as stated above. In applying the ruling of the Supreme Court, answering the certified question of this court (Golden v. Medford, 189 Ga. 614, supra), this court's ruling in Golden v. Medford, 62 Ga. App. 229 (supra), in no way changes the general rules of principal and agent in applying the family-car doctrine. Paragraph 4 of the petition in that case, which was before the Supreme Court when it answered the certified question alleges: "On the 16th day of November, 1938, the defendant, V. S. Golden, was riding in and was directing theoperation of said Chevrolet automobile with the knowledge andconsent of the owner, the defendant, Mrs. V. S. Golden, for his own pleasure and in pursuance of the purpose for which said Chevrolet was kept and maintained by the owner, the defendant, Mrs. V. S. Golden." Under that state of the record, the husband was directing the third party to drive the automobile with the knowledge and consent of his wife and it was by reason of such knowledge and consent that the petition was held to state a cause of action by this court and also possibly influenced the Supreme Court to answer the certified question as it did. If authority to employ an assistant impliedly and presumptively arises out of the mere employment of a servant, such a ruling as is made above is futile, useless, and a waste of time and paper. What the ruling means is that there must be express authority to employ the assistant, or there must be circumstances, in addition to and outside of the very employment itself from which the law implies consent to the employment of an assistant, or that the employment was ratified. If the very employment of an agent as a matter of law authorizes the agent to employ another what is the use of discussing whether the agent had express or implied authority?

In the opinion in Grant v. Knepper, 245 N.Y. 158, cited in the majority opinion, Judge Cardozo stated: "There are holdings or at least dicta to the effect that if the servant is present, the act of the substitute will be taken as his own, though there was neither negligence in the selection of one inexperienced or incompetent, nor failure of supervision in circumstances where supervision could be found to be effective. We are not preparedto go so far if liability is to be measured by the rule at common law." [Emphasis added.] The decision in that case is based on the interpretation of the word "use" in a statute and it was construed very liberally indeed and "use" was held to include the driving by a substitute driver for the servant where the motor truck was driven by the substitute on the master's business. That was not a family-purpose case and is contrary to White v. Levi Co., supra. I do not think that the Supreme Court in Griffin v.Russell, supra, did any more than differ with the Court of Appeals in its interpretation of certain cases cited in Schumer v. Register, supra, neither of which is on the particular point under discussion. It is well to remember that the driver in the case of Griffin v. Russell, was not a substitute driver and the court did not have the question here involved before it. I can see no conflict between the two cases on the question in this case. The case of Griffin v. Russell, was decided in 1915. That of Samples v. Shaw, supra, was decided in 1933. Yet, in the latter case the court cited Schumer v. Register, supra, on the question of the necessity for the primary agent to have express or implied authority to appoint a subagent. So it seems that the court in citing the Register case did not think it had been overruled on this point at least.