Knox v. Stone , 130 Ga. App. 757 ( 1974 )

Clark, Judge.

Plaintiff, who had sustained personal injuries while riding as a gratuitous passenger in an automobile owned by defendant father which at that time was being driven by defendant’s minor daughter, sued to recover damages from the father based upon the daughter’s alleged gross negligence in the use of the automobile which plaintiff contended was a family purpose car. By amendment a second count was added based on the theory of negligent entrustment by defendant’s son acting as agent for defendant father, the son being joined as a co-defendant. The basis of this amendment was an allegation that the son had knowledge that the daughter was an unlicensed and inexperienced driver. A summary judgment motion was filed by defendant father. Plaintiff filed a response and subsequently filed a counter-affidavit. The motion of defendant was denied, the order reciting that "[T]here is a genuine issue as to one or more material facts and that defendant is not entitled to judgment as a matter of law.” (R. 39). Thereupon this appeal was taken accompanied by an immediate review certificate. Held:

The questions presented by the record in this appeal are: (1) was the vehicle a family purpose automobile; (2) was the daughter driver grossly negligent; and (3) is there a material issue as to agency or negligent entrustment. The record here presents genuine issues of material fact as to each of these issues. "There being material issues of fact and the evidence adduced not demanding a finding for the defendant, the trial court did not err in overruling the defendant’s motion for summary judgment.” Modern Maid Homes v. Parnell, 129 Ga. App. 576 (200 SE2d 320).

Argued September 14, 1973 Decided January 8, 1974 Rehearing denied February 4, 1974 Sharpe, Hartley & Newton, W. Ward Newton, for appellant. Jackson S. Cooley, J. Harold Mimbs, for appellee.

Judgment affirmed.

Hall, P. J., and Evans, J., concur.