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PRICE v. BONE et al.
66245.
BANKE, Judge.
Action for damages. Newton Superior Court. Before Judge Ellis.
The plaintiff was injured when the automobile in which he was a passenger collided with a light pole. The complaint, as originally filed, sought recovery for negligence only against the driver, Gregory Bone. In an amendment to the complaint, James Bone, the father of Gregory Bone, was added as a defendant, with his liability being predicated upon the family purpose doctrine. By affidavit, both father and son testified that the son had purchased the vehicle with his own money and that he had exclusive custody and control of it. A copy of the certificate of title showing Gregory Bone as the owner accompanies his affidavit. This appeal is from a grant of summary judgment in favor of the father. Held:
"The rules applicable to the family purpose doctrine are as follows: 'To come within the application of the doctrine, the defendant must own the automobile, or at least have some recognized property interest in it or supply it, and he must have made it available for family use rather than for use in his business . . .' Prosser, Law of Torts (2d Ed.), p. 370 66." Finnocchio v. Lunsford, 129 Ga. App. 694 (2) (201 SE2d 1) (1973). "Nevertheless, the 'principal factor " is authority and control of the vehicle, and this is not necessarily determined by title to the vehicle or payment for the expenses of operation." [Cit.] "Agency, not ownership, is the test of liability." [Cits.]' " Dillard v. Clements, 144 Ga. App. 512 (241 SE2d 838) (1978).
Plaintiff urges that a fact issue is created by evidence that Gregory Bone told an insurance adjuster that the car was registered in his father's name. This evidence does not provide a basis for recovery against the father in view of the affidavits and the certificate of title establishing that Gregory Bone was the exclusive owner of the vehicle. See South v. Martin, 147 Ga. App. 198 (248 SE2d 230) (1978).
I. J. Parkerson, for appellees.
Daniel C. B. Levy, for appellant.
DECIDED MAY 20, 1983.
Thursday May 21 20:09 EDT


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