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Docket Number

A89A1214.

Attorney(S)

Raymond V. Guidice, for appellants. Arnold Wright, Jr., William M. Warner, for appellees.

Judges

SOGNIER, Judge.

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HARVEY et al. v. TAYLOR et al. — Court of Appeals of Georgia (Dec. 12, 1989)

Factual and Procedural Background

Mary Lou Harvey and her son, Everett Harvey, sued Vince Taylor, Douglas Simpson, Phoebe Stallings, and Geraldine Stallings seeking damages for injuries sustained in an automobile accident on August 7, 1985. Everett was driving north on Main Street in College Park when his car was forced off the road and into a telephone pole by another automobile, injuring both plaintiffs. A College Park police sergeant, L. M. Nolan, recorded in his accident report that a witness gave Georgia tag number AJG495 and that the offending car was red and occupied by three black males; two witnesses who spoke with Nolan at the scene testified in deposition that they noticed an orange-red car but did not see the license plate and did not give a tag number.

The record showed that Geraldine Stallings owned a 1977 red Chevrolet Impala, primarily driven by her daughter Phoebe; Phoebe spent much of August 1985 in North Carolina with her mother but left the car at her uncle Douglas Simpson's home in College Park, leaving keys with both Simpson and Vince Taylor. Simpson and Taylor denied driving the car on August 7, 1985; Phoebe and Geraldine testified they were in North Carolina on that date and that no one drove the car with their knowledge or permission. Taylor testified he was at work the day of the incident and that he later drove the Stallings car to the police station when contacted by police. Phoebe reported the car as stolen on October 28, 1987. The trial court granted summary judgment to all appellees; the Harveys appealed.

Legal Issues Presented

Whether genuine issues of material fact existed that precluded summary judgment as to appellees Vince Taylor and Douglas Simpson concerning (a) whether the Stallings automobile was the vehicle involved and (b) who was driving the vehicle at the time of the accident.
Whether summary judgment was properly granted in favor of appellees Phoebe and Geraldine Stallings based on their testimony they were in North Carolina on the day of the incident and the absence of evidence of negligent entrustment.
Whether the family purpose doctrine applied to render Geraldine Stallings liable for the conduct of Simpson or Taylor.

Arguments of the Parties

Appellants' Arguments

Appellants contended that summary judgment was improper because material questions of fact remained regarding the identity of the vehicle and the identity of its driver on the date of the accident.

Appellees' Arguments and Evidence

Taylor and Simpson testified they did not drive the Stallings automobile on August 7, 1985; Taylor testified he was at work that day and that Simpson usually drove when they used the car together during August.
Phoebe and Geraldine Stallings testified they were in North Carolina on the date of the incident and that no one drove the car with their permission; they also testified Phoebe primarily drove the car and left it at Simpson's residence during her absence.
Police testimony (Sergeant Nolan) recorded a tag number AJG495 and described the offending car as red; two eyewitnesses at the scene described an orange-red car but testified they did not see the license plate.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 S.E.2d 843) (1988)	The movant on summary judgment must show there is no genuine issue as to any material fact and is entitled to judgment as a matter of law; when movants are defendants, they must pierce the plaintiffs' pleadings and affirmatively negate one or more essential elements of the complaint; respondents are given the benefit of all reasonable doubt and evidence and inferences are construed most favorably to the nonmoving party.	Invoked to state the applicable standard for summary judgment and the defendants' burdens; the court applied this standard in evaluating whether defendants had affirmatively negated essential elements of the Harveys' claims.
Mitchell v. Rainey, 187 Ga. App. 510, 513 (370 S.E.2d 673) (1988)	Cited generally in support of the proposition that summary judgment was erroneous where material fact questions existed regarding identity of vehicle/driver.	The court cited it generally to support its conclusion that summary judgment as to Taylor and Simpson was erroneous.
Thomason v. Harper, 162 Ga. App. 441, 444-446 (2) (289 S.E.2d 773) (1982)	Related to negligent entrustment principles and circumstances under which an owner may be liable for permitting use of a vehicle.	Used to support the court's conclusion that there was no evidence of negligent entrustment as to Phoebe and Geraldine Stallings; their testimony that no one drove the car with their permission was not rebutted.
Marques v. Ross, 105 Ga. App. 133, 139 (123 S.E.2d 412) (1961)	Related to principles governing negligent entrustment and owner liability.	Cited along with Thomason to support the holding that no evidence of negligent entrustment existed as to Phoebe and Geraldine Stallings.
Quattlebaum v. Wallace, 156 Ga. App. 519, 520 (275 S.E.2d 104) (1980)	Set forth the four requirements for application of the family purpose doctrine: (i) owner permission to a family member, (ii) owner relinquished control to the family member, (iii) the family member must be in the vehicle, and (iv) the vehicle must be engaged in a family purpose.	The court quoted these four requirements and applied them in analyzing whether the family purpose doctrine made Geraldine Stallings liable; the court found the doctrine inapplicable here.
Hubert v. Harpe, 181 Ga. 168, 172-173 (182 S.E. 167) (1935)	Discussed adult child of owner as a possible "family member" for family purpose doctrine when the child lives in the parent's household and uses the car for a purpose provided by the parent.	Referenced in discussing circumstances under which an adult child may be considered a family member; the court contrasted Hubert with the present facts (nonresident daughter/son-in-law).
Whitlock v. Michael, 79 Ga. App. 316, 319 (53 S.E.2d 587) (1949)	Addressed issues related to residency and family purpose doctrine application.	Cited in the court's discussion of residency considerations bearing on family purpose doctrine applicability.
Bryant v. Keen, 43 Ga. App. 251, 252 (158 S.E. 445) (1931)	Held that a son-in-law is not a member of the family for purposes of the family purpose doctrine.	The court relied on Bryant to support the proposition that a son-in-law is not a family member where, as here, the daughter and son-in-law were not residents of the owner's household and there was no evidence the vehicle was provided to the son-in-law for family use.
Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 424 (373 S.E.2d 515) (1988)	Cited generally in connection with family purpose and owner-liability principles.	Referenced generally to support the court's conclusion that summary judgment for Phoebe and Geraldine Stallings was proper under the facts presented.

Court's Reasoning and Analysis

The court applied the governing summary judgment standard (Moore) requiring defendants who move for summary judgment to negate essential elements of the plaintiffs' claims and construing evidence and inferences in favor of the nonmoving party. It examined the evidentiary record bearing on identity of the offending vehicle and its driver.

The court found evidence creating factual disputes as to whether the Stallings automobile was the vehicle involved and who was driving it. Specifically, Sergeant Nolan's accident report recorded a tag number (AJG495) and a description of a red car; Phoebe and Geraldine Stallings were shown to own a red 1977 Chevrolet Impala. Although two eyewitnesses at the scene testified they did not see the license plate, they described an orange-red car. Phoebe testified that both Simpson and Taylor had keys to the car; Taylor acknowledged occasions when he and Simpson used the car together and admitted occasionally driving it. Simpson denied driving the car during August 1985, while Taylor said he was at work on the day of the incident. The court concluded these conflicting statements and the reported tag number and vehicle description generated inferences and factual questions that the appellees Taylor and Simpson had not affirmatively rebutted. Accordingly, the trial court erred in granting summary judgment to Taylor and Simpson.

As to Phoebe and Geraldine Stallings, the court noted their uncontradicted testimony that they were in North Carolina on the day of the accident and the witnesses at the scene said the driver was male. The court found no evidence of negligent entrustment because the Stallingses' testimony that no one drove the car with their permission on that date was not rebutted, and there was no evidence that either Phoebe or Geraldine had actual knowledge of any incompetence on the part of Taylor or Simpson. The court further analyzed the family purpose doctrine by setting out its four requirements (Quattlebaum) and applying them to the record: neither Phoebe nor Simpson was shown to be a member of Geraldine's household nor to have been provided the vehicle for a family purpose, and the son-in-law exclusion (Bryant) supported inapplicability where the daughter and son-in-law were not residents of the owner's household. For these reasons, summary judgment for Phoebe and Geraldine Stallings was affirmed.

Holding and Implications

The Court reversed in part and affirmed in part: summary judgment was reversed as to appellees Vince Taylor and Douglas Simpson and affirmed as to appellees Phoebe and Geraldine Stallings.

Direct consequences: the summary judgment dismissing the Harveys' claims against Taylor and Simpson was vacated and those claims must proceed (the court found genuine issues of material fact precluded summary judgment as to those appellees). The summary judgment dismissing claims against Phoebe and Geraldine Stallings was affirmed, terminating the plaintiffs' claims against them on the present record.

No broader change to controlling law was announced; the court relied on established precedents addressing summary judgment burdens, negligent entrustment, and the family purpose doctrine in reaching its decision.

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HARVEY et al. v. TAYLOR et al.

SOGNIER, Judge.

Mary Lou Harvey and her son, Everett Harvey, brought suit against Vince Taylor, Douglas Simpson, Phoebe Stallings, and Geraldine Stallings to recover damages for injuries sustained in an automobile accident. The Harveys appeal from the trial court's award of summary judgment to the defendants.

The record reveals that on August 7, 1985, at approximately 1:45 p. m., Everett Harvey was driving north on Main Street in College Park when his car was forced off the road and into a telephone pole by another automobile, resulting in injuries to him and Mary Lou Harvey, his passenger. Sergeant L. M. Nolan of the College Park Police Department testified by deposition that when he investigated the incident, one of the two witnesses he interviewed at the scene told him the license plate number of the offending vehicle was Georgia tag number AJG495, which he recorded on his standard accident report form. Nolan testified that after talking with the witnesses, he also wrote in his report that the car was red and was occupied by three black males. Upon determining that the tag number was registered to "a Stallings at 1819 ... Dunlap Avenue" in East Point, he went to that address on three occasions but did not find anyone at home, nor did he find a red car with that tag number. Gregory Cosby and Anthony Sinclair, the two witnesses who spoke with Nolan at the scene, both testified that they noticed the car was orange-red, but did not see the license plate and did not give a tag number to Nolan. Cosby recalled that the car was a two-door Dodge and that one white male was driving, while Sinclair stated that the vehicle was a mid-1970s model American car with one male driver whose race he could not recall.

Additional testimony established that appellee Geraldine Stallings, a North Carolina resident, owned a 1977 red Chevrolet Impala which she drove on occasion but which was driven primarily by her daughter, appellee Phoebe Stallings, and that Phoebe lived in an apartment on Roosevelt Highway in Atlanta with her husband, appellee Vince Taylor, during part of 1985 but spent most of the month of August in North Carolina with her mother. Phoebe Stallings testified that she left the car at the College Park home of her uncle, appellee Douglas Simpson, during her absence from Atlanta, and left keys with both Simpson and Taylor. Simpson testified that he did not drive the car during that time, as he and his wife each drove their own cars instead. Taylor, who testified that he lived with his parents on Barrett Street in East Point during August 1985, stated that during that time he worked at the Atlanta airport from 8:00 a. m. until 12:00 or 2:00 p. m., that he only drove the Stallings car occasionally and never to work, and that he was at work the day of the incident. Taylor also stated that during August he and Simpson did go out together in the car several times to run errands, and that Simpson usually drove. Both Taylor and Simpson denied driving the car on August 7th, and Phoebe and Geraldine Stallings testified that they were in North Carolina on the day of the incident, and that on that date no one drove the car with their knowledge or permission. Taylor further testified that after the College Park police contacted his wife about the incident at issue, he drove the car to the police station, where an officer inspected it and then permitted him to leave with the car, and neither Taylor nor his wife had any further contact with the authorities regarding this incident. The record also reveals that Phoebe Stallings reported the car as stolen on October 28, 1987, and that all of the appellees are black.

Appellants contend that summary judgment was improper, as material fact questions remain. We agree as to appellees Taylor and Simpson and reverse in part. On motions for summary judgment, the movant has the burden of showing there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. When, as in the instant case, the movants are the defendants, they have the additional burden of piercing the plaintiffs' pleadings and affirmatively negating one or more essential elements of the complaint. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 ( 370 S.E.2d 843) (1988). Further, the respondents "should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cits.]" Id. at 596.

In the case at bar, although Simpson testified he never drove the Stallings automobile during August 1985, Taylor stated he accompanied Simpson on several trips in the car and also drove it on occasion by himself, thereby raising a question of fact as to who drove the car during that month and creating at least an inference that either Simpson or Taylor could have driven the car on the date in question. Also, Phoebe Stallings' testimony that both Simpson and Taylor had keys to the car, combined with Nolan's documentation at the scene of a vehicle and tag matching that of the Stallingses, leads to an inference that the car was being driven by Taylor, Simpson, or another permissive driver. The testimony of the witnesses at the scene and Nolan's statements regarding his investigation create a question of fact as to whether the Stallings automobile was the car that caused the accident and if so, who was driving, and appellees' testimony does not affirmatively rebut that evidence. Accordingly, we find the trial court erred by granting summary judgment to appellees Taylor and Simpson. See generally Mitchell v. Rainey, 187 Ga. App. 510, 513 ( 370 S.E.2d 673) (1988).

We do, however, affirm the grant of summary judgment to appellees Phoebe and Geraldine Stallings. They both testified that they were in North Carolina the day of the incident, and the witnesses said the driver of the offending vehicle was male. There is no evidence of negligent entrustment, as these appellees' testimony that no one drove the car with their permission on the date in question was not rebutted, and even if either Taylor or Simpson was driving, there is no evidence either of the Stallingses had actual knowledge of either man's incompetence to drive an automobile. Thomason v. Harper, 162 Ga. App. 441, 444-446 (2) ( 289 S.E.2d 773) (1982); Marques v. Ross, 105 Ga. App. 133, 139 ( 123 S.E.2d 412) (1961).

We do not agree with appellants' contention that a material fact question remains as to whether the Stallingses are liable under the family purpose doctrine because we find that principle inapplicable here. "[T]here are ... four requirements for the application of the family purpose doctrine: (i) the owner must have given permission to a family member to drive the vehicle, (ii) the owner must have relinquished control of the vehicle to the family member, (iii) the family member must be in the vehicle, and (iv) the vehicle must be engaged in a family purpose." Quattlebaum v. Wallace, 156 Ga. App. 519, 520 ( 275 S.E.2d 104) (1980). An adult child of the owner may be a "family member" within the meaning of the family purpose doctrine if the child lives in the parent's household and uses the car for a purpose for which it was provided by the parent. Hubert v. Harpe, 181 Ga. 168, 172-173 ( 182 S.E. 167) (1935). However, this court has held that a son-in-law is not a member of the family with regard to the application of this doctrine. Bryant v. Keen, 43 Ga. App. 251, 252 ( 158 S.E. 445) (1931). Although the holding in Bryant has been questioned in the case of a resident adult child, Hubert, supra at 178; Whitlock v. Michael, 79 Ga. App. 316, 319 ( 53 S.E.2d 587) (1949), we find the ruling in Bryant valid where, as in the instant case, the daughter and son-in-law were not residents of the owner's household and there is no evidence the vehicle was provided by the owner for the son-in-law's use. Similarly, Simpson was not a member of Geraldine Stallings' household, and the record is devoid of any evidence that she provided the car to him for a family purpose. Thus, as there is no evidence the car was driven or occupied by a "family member" for a "family purpose," we conclude the trial court correctly granted summary judgment to appellees Phoebe and Geraldine Stallings. See generally Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 424 ( 373 S.E.2d 515) (1988). Judgment reversed. Banke, P. J., and Pope, J., concur.

DECIDED OCTOBER 12, 1989.

HARVEY v. TAYLOR