ry of the action is that of negligent entrustment, as to which see generally, Willis v. Hill, 116 Ga. App. 848 ( 159 S.E.2d 145), and citations (reversed on other grounds in 224 Ga. 263 ( 161 S.E.2d 281)); Young v. Kickliter, 213 Ga. 42 ( 96 S.E.2d 605); Chattanooga Publishing Co. v. Fulton, 215 Ga. 880 ( 114 S.E.2d 138); NuGrape Bottling Co. v. Knott, 47 Ga. App. 539 ( 171 S.E. 151); Ficklen v. Heichelheim, 49 Ga. App. 777 (6) ( 176 S.E. 540); Crisp v. Wright, 56 Ga. App. 338 ( 192 S.E. 390); Graham v. Cleveland, 58 Ga. App. 810 (2) ( 200 S.E. 184); Holt v. Eastern Motor Co., 65 Ga. App. 502 ( 15 S.E.2d 895); Burks v. Green, 85 Ga. App. 327 ( 69 S.E.2d 686); Gay v. Healan, 88 Ga. App. 533 (4) ( 77 S.E.2d 47); Windsor v.Chanticleer Co., 89 Ga. App. 116 ( 78 S.E.2d 871); Caskey v. Underwood, 89 Ga. App. 418 ( 79 S.E.2d 558); Medlock v. Barfield, 90 Ga. App. 759 ( 84 S.E.2d 113); Garver v. Smith, 90 Ga. App. 892, 896 ( 84 S.E.2d 693); Healan v. Powell, 91 Ga. App. 787 ( 87 S.E.2d 332); Mason v. Powell, 92 Ga. App. 496 ( 88 S.E.2d 734); Jones v. Dixie Drive It Yourself System, 97 Ga. App. 669 ( 104 S.E.2d 497); Hines v. Bell, 104 Ga. App. 76 (4) ( 120 S.E.2d 892); Marques v. Ross, 105 Ga. App. 133, 138 ( 123 S.E.2d 412); McKinney v. Burke, 108 Ga. App. 501 ( 133 S.E.2d 383); Roebuck v. Payne, 109 Ga. App. 525 (2) ( 136 S.E.2d 399); Lee v. Swann, 111 Ga. App. 88 ( 140 S.E.2d 562); Porch v. Wright, 116 Ga. App. 138 ( 156 S.E.2d 532); Saunders v. Vikers, 116 Ga. App. 733 (5, 6, 7) ( 158 S.E.2d 324); Ditmyer v. American Liberty Ins. Co., 117 Ga. App. 512, 520 ( 160 S.E.2d 844); Jones v. Cloud, 119 Ga. App. 697 ( 168 S.E.2d 598); and see R. J. Reynolds Tobacco Co. v. Newby, 145 F.2d 768. Defendant testified that Tuggle had been driving tractors for some time and had driven this tractor on numerous occasions in doing plowing, harrowing, etc., on the farm, and had driven it to town on one occasion to get repairs made, had occasionally driven it to the store for purchasing groceries, and that he had observ
Carter v. Bishop, 209 Ga. 919, 928 ( 76 S.E.2d 784).' Mason v. Powell, 92 Ga. App. 496, 498 ( 88 S.E.2d 734)."
If there is no marriage here, can the "family-purpose doctrine" be applicable? The appellant urges that it is. We are cited extensive authority showing that liability under the family-purpose doctrine "is not founded on the existence of a family relationship" ( Kalil v. Spivey, 70 Ga. App. 84, 91 ( 27 S.E.2d 475); Mason v. Powell, 92 Ga. App. 496 ( 88 S.E.2d 734)), but on the use of the vehicle for the purpose for which it was provided. Hirsh v. Andrews, 81 Ga. App. 655 ( 59 S.E.2d 552).
If, as is urged, Henderson was known to the owner to be an habitual user of intoxicants to excess, and it should have been anticipated that he would take the pickup truck on an unauthorized personal mission for engaging in a drinking bout, as he did, plaintiffs are not left without remedy by following the rule of Hodges. Certainly they may proceed with their suits against Henderson. And it may well be that they can proceed against the owner under the long recognized theory of negligent entrustment. See, for example, NuGrape Bottling Co. v. Knott, 47 Ga. App. 539 ( 171 S.E. 151); Crisp v. Wright, 56 Ga. App. 338 ( 192 S.E. 390); Burks v. Green, 85 Ga. App. 327 ( 69 S.E.2d 686); Windsor v. Chanticleer Co., 89 Ga. App. 116, supra; Medlock v. Barfield, 90 Ga. App. 759 ( 84 S.E.2d 113); Healan v. Powell, 91 Ga. App. 787 ( 87 S.E.2d 332); Mason v. Powell, 92 Ga. App. 496 ( 88 S.E.2d 734); Jones v. Dixie Drive It Yourself System, 97 Ga. App. 669 ( 104 S.E.2d 497); Hines v. Bell, 104 Ga. App. 76 ( 120 S.E.2d 892); McKinney v. Burke, 108 Ga. App. 501 ( 133 S.E.2d 383). But see Saunders v. Vikers, 116 Ga. App. 733 (5, 6, 7) ( 158 S.E.2d 324). Since the owner was not a party to the suits brought by the Ditmyers that issue is not and cannot be involved and they do not proceed upon that theory against Henderson. The negligent entrustment theory applies only in an action against an owner or one who has negligently placed the vehicle in the hands of an incompetent driver.
The admission, framed in terms of agency only, is ineffective to subject the non-driver defendant to liability under respondeat superior in the example because of the well-settled rule that the servant must be held liable for the master to be liable, in contrast to the rule of negligent entrustment (under which such a minor or fainting driver might be released and the entrustor held), that the injury must be proximately caused by the injurious conduct of the driver resulting from his incompetency known to the employer. See McKinney v. Burke, 108 Ga. App. 501, 505 ( 133 S.E.2d 383); Burks v. Green, 85 Ga. App. 327, 331 ( 69 S.E.2d 686); Mason v. Powell, 92 Ga. App. 496 ( 88 S.E.2d 734); Crisp v. Wright, 56 Ga. App. 338 ( 192 S.E. 390); Windsor v. Chanticleer Co., 89 Ga. App. 116 ( 78 S.E.2d 871); Myrick v. Alexander, 101 Ga. App. 1, 5 ( 112 S.E.2d 697); Jones v. Dixie Drive It Yourself System, 97 Ga. App. 669 ( 104 S.E.2d 497); Medlock v. Barfield, 90 Ga. App. 759, 761 ( 84 S.E.2d 113). In the usual case, however, as in the case at bar, it is proper to speak of the negligence of the driver and to apply the rule that the non-driver defendant cannot be held liable if the driving defendant is not held liable.
In no case in Georgia has it been held that the parent is liable when the son or family member was not in the automobile and directing its use, or when it was not being used for a family purpose. See Samples v. Shaw, 47 Ga. App. 337, 339 ( 170 S.E. 389); Mason v. Powell, 92 Ga. App. 496, 498 ( 88 S.E.2d 734); Johnson v. Brant, 93 Ga. App. 44 ( 90 S.E.2d 587). The fact that an automobile owner gives a family member possession and permission and consent to operate an automobile for family purposes does not alone imply that the owner authorizes the family member to delegate to another his authority to operate the automobile outside his presence, direction and control.
Carter v. Bishop, 209 Ga. 919, 928 ( 76 S.E.2d 784)." Mason v. Powell, 92 Ga. App. 496, 498 ( 88 S.E.2d 734). (Emphasis supplied.)
See also Garver v. Smith, 90 Ga. App. 892, 896 ( 84 S.E.2d 693); Myrick v. Alexander, 101 Ga. App. 1, 5 ( 112 S.E.2d 697); Burks v. Green, supra, p. 329; Vaughn v. Butler, 103 Ga. App. 884, 887 ( 121 S.E.2d 72). In Mason v. Powell, 92 Ga. App. 496 ( 88 S.E.2d 734), where family purpose was shown as between the owner and her son, and where allegations of the petition showed incompetence on the part of the son due to intoxication, and incompetence on the part of the driver to whom the son had lent the vehicle due to her youth, lack of experience with automobiles, and failure to have a driver's license, it was held that a plaintiff injured by the incompetent driver could not recover against the owner of the vehicle in the absence of a showing that the owner had actual knowledge of the son's negligence in lending the automobile to the minor and by failure to object, or by consent, ratified the act. The opposite situation exists in Vaughn v. Butler, supra, where it appeared that the lending by the owner's nephew to an incompetent driver was actually known to the owner, and that by her failure to protest she ratified and acquiesced in the negligent entrustment.
The evidence, construed most favorably in support of the verdict, authorized a finding that Mrs. Butler turned the automobile over to her nephew, J. C. Green, that he permitted Mrs. Townsend to drive it although she had no driver's license, was only sixteen years old, and was inexperienced in operating automobiles, that while Mrs. Butler did not know that J. C. Green was permitting Mrs. Townsend to drive the automobile before Mrs. Townsend first operated the vehicle she did have such knowledge before the date of the collision between the plaintiff's automobile and the automobile owned by Mrs. Butler and being driven by Mrs. Townsend, and that no action was taken by Mrs. Butler to forbid Mrs. Townsend from continuing to drive such automobile. The defendant Mrs. Butler cites the cases of Mason v. Powell, 92 Ga. App. 496 ( 88 S.E.2d 734); and Young v. Kickliter, 213 Ga. 42 ( 96 S.E.2d 605), and similar cases to support her contention that the judgment of the trial court granting her a judgment non obstante veredicto was correct. Such cases involve the "family purpose" doctrine and are cases where the member of the family who was granted permission to use the vehicle turns such vehicle over to a third party without the knowledge or consent of the owner and where the vehicle was not being used for the purpose of the agency.
In Carter v. Bishop, 209 Ga. 919 ( 76 S.E.2d 784) cited by the plaintiffs in error, the employee allowed another to drive the truck in direct contravention of the employer's instructions. In Mason v. Powell, 92 Ga. App. 496 ( 88 S.E.2d 734) the son was not in the automobile or exercising any dominion or control over it at the time of the collision but had merely lent it to another. In Samples v. Shaw, 47 Ga. App. 337 ( 170 S.E. 389) it was held merely that the family-car doctrine was not applicable for the reason that the owner allowed no one to take the car without his express permission or instruction and for the further reason that the nephew was not in any event a member of the family.