Opinion
41538.
ARGUED SEPTEMBER 8, 1965.
DECIDED SEPTEMBER 23, 1965.
Action for damages. Cobb Superior Court. Before Judge Ingram.
Phillip T. Keen, for plaintiffs in error.
Edwards, Bentley, Awtrey Parker, A. Sidney Parker, contra.
Where an adult son living with his parents owned and customarily drove his own automobile to and from work and on social occasions, but on a few occasions including that on which the injuries here sued for occurred he asked and received special permission to drive an automobile belonging to his father, who however testified without contradiction that he did not maintain the automobile for the pleasure or benefit of his sons, and where the purpose for which the vehicle was driven was not otherwise a family purpose, no facts are shown bringing the vehicle involved within the family car doctrine.
ARGUED SEPTEMBER 8, 1965 — DECIDED SEPTEMBER 23, 1965.
The plaintiffs filed an action for damages against David Oliver, owner, and his son Ronnie Oliver, operator of a vehicle involved in a collision in which the plaintiff's minor child was injured. David Oliver's motion for summary judgment was sustained on the theory that the family car doctrine was not applicable to this transaction. The testimony on this point is substantially as follows: Two sons, the defendant Ronnie who was 21 years old and his younger brother lived at home with their parents; Ronnie owned an automobile in his own name and Tommy had an automobile, legal title to which was in the father; the boys worked at the same location and alternated driving together in these two cars; the father owned a 1960 Chevrolet used by his wife in going to and from work and he himself went to work in a vehicle furnished by his employer. The 1960 Chevrolet had four doors, and that of each of the boys had two doors. The boys were on their way to an athletic event to which they were taking two other persons, and, the four-door car being more convenient for this purpose, Ronnie requested the key and use of the car from his mother who gave them the key. The father had actual notice of this fact as he arrived at the house and talked with them before they left. He further testified that he allowed his sons to drive the automobile when they wanted to borrow it for some special occasion, that it was all right for them to take it with his wife's permission, that he had no objection to their using it if they asked for it, that Ronnie had driven the car four or five times before, usually to run errands at his wife's request, and that he did not maintain the car for the whole family but only for himself and his wife. Ronnie testified that immediately prior to taking his father's car he had used his own car for an errand because his mother was not home from work, and he did not ask for his father's car unless there was a special reason. Tommie, the younger son, testified that he had purchased a 1956 Chevrolet and had it put in his parents' name; that they drove it some when they wanted it but mostly he drove it; that if they wanted to use the 1960 Chevrolet they always asked their parents; that he and Ronnie had been off together previously in the 1960 car; that he drove that car on some occasions and that Ronald had not driven it very often.
In Studdard v. Turner, 91 Ga. App. 318, 322 ( 85 S.E.2d 537) it was stated that testimony merely to the effect that when a son living with his parents asked for and was granted special permission to use the latter's automobile such testimony "is equally consonant with the theory that the son merely borrowed an automobile which was not generally used and kept for the pleasure and use of the family [as] that it was so kept and that parental authority was merely sought for its use at a particular time or for a particular errand; therefore, since it would tend equally to prove either theory, it succeeds in proving neither." The same conclusion was reached in Robinson v. Hartley, 98 Ga. App. 765 ( 106 S.E.2d 861). The facts in Marques v. Ross, 105 Ga. App. 133 ( 123 S.E.2d 412) are closely similar to those of this case: in both the owner denied that the automobile was kept for the pleasure or convenience of a son over 21 years of age living with the family; in both it was admitted that the son had driven the car on some half dozen previous occasions but always with express permission. In Ross it appears that the son paid for room and board while no evidence on the point is within this record. On the other hand there was no showing in Ross that the son had automotive transportation while here it is evident that the youth bought and owned his own car, and that another son had also purchased his own automobile. The fact that title to the latter was in the father does not affect the case since that vehicle is not involved in this case but it does support the father's testimony that his own car was maintained solely for the convenience of himself and his wife. In Ross, as here, the defendant son had no key to the vehicle and the few occasions on which he used it were by express permission. "The doctrine is not applicable where the members of the family must obtain special permission each time they use the vehicle." 8 Am. Jur. 2d 143, 144, § 558, citing Redding v. Barker, 33 Tenn. App. 132 ( 230 S.W.2d 202).
The testimony here is not subject to contrary inferences within the meaning of Word v. Henderson, 220 Ga. 846 ( 142 S.E.2d 244) so as to create a jury issue on motion for summary judgment. The court did not err in sustaining the motion.
Judgment affirmed. Felton, C. J., and Jordan, J., concur.