Hagerty v. Powers

California Supreme Court

Hagerty v. Powers

5 P. 622, 66 Cal. 368, 1885 Cal. LEXIS 442

CourtCalifornia Supreme Court

DecidedJanuary 20, 1885

DocketNo. 9,372

StatusPublished

Cited by23 cases

This text of 5 P. 622 (Hagerty v. Powers) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hagerty v. Powers, 5 P. 622, 66 Cal. 368, 1885 Cal. LEXIS 442 (Cal. 1885).

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Opinions

Ross, J.

The question in this case is, whether the defendant, who, according to the averments of the complaint, “ willfully, carelessly, and negligently suffered, permitted, countenanced, and allowed ” his son, of eleven years of age, to have in his possession a loaded pistol, which pistol the hoy afterwards so carelessly used and handled as to shoot the infant child of the plaintiff, is liable in damages therefor. We have been cited to no case, controlled by the principles of the common law, that holds that the action, under such circumstances, can be maintained. It seems that under the civil law it may be; and such an action was lately sustained by the Supreme Court of Louisiana, in the case entitled Marionneaux v. Brugier, reported in the 16th vol. of the Reporter, p. 208. Pothier, in his work on Obligations, says : “ The doctrine that fathers and others shall be responsible for the acts of children under their care, which it was in their power to prevent, appears highly reasonable; but I am not aware of any case in which it is adopted in the English law.” (Vol. 2d, page 34.)

In Tifft v. Tifft, 4 Denio, 177, a minor daughter of the defendant, in her father’s absence, and without his authority or approval, willfully set his dog, not ordinarily a vicious animal, upon the plaintiff’s hog, which was bitten and killed; and the court held that the father was not, but the child was, liable in damages. To the same effect are a number of cases cited in Schouler on Domestic Relations, section 263, from which he deduces the rule that a father is not liable in damages for the torts of his child, committed without his knowledge, consent, or sanction, and not in the course of his employment of the child.

Under this rule it is quite clear that the averments of the complaint do not fix upon the defendant any liability for the damage suffered by the plaintiff.

Judgment affirmed.

Sharpstein, J., Thornton, J., McKinstry, J., and McKee, J., concurred.

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Ross, J.

The question in this case is, whether the defendant, who, according to the averments of the complaint, “ willfully, carelessly, and negligently suffered, permitted, countenanced, and allowed ” his son, of eleven years of age, to have in his possession a loaded pistol, which pistol the hoy afterwards so carelessly used and handled as to shoot the infant child of the plaintiff, is liable in damages therefor. We have been cited to no case, controlled by the principles of the common law, that holds that the action, under such circumstances, can be maintained. It seems that under the civil law it may be; and such an action was lately sustained by the Supreme Court of Louisiana, in the case entitled Marionneaux v. Brugier, reported in the 16th vol. of the Reporter, p. 208. Pothier, in his work on Obligations, says : “ The doctrine that fathers and others shall be responsible for the acts of children under their care, which it was in their power to prevent, appears highly reasonable; but I am not aware of any case in which it is adopted in the English law.” (Vol. 2d, page 34.)

In Tifft v. Tifft, 4 Denio, 177, a minor daughter of the defendant, in her father’s absence, and without his authority or approval, willfully set his dog, not ordinarily a vicious animal, upon the plaintiff’s hog, which was bitten and killed; and the court held that the father was not, but the child was, liable in damages. To the same effect are a number of cases cited in Schouler on Domestic Relations, section 263, from which he deduces the rule that a father is not liable in damages for the torts of his child, committed without his knowledge, consent, or sanction, and not in the course of his employment of the child.

Under this rule it is quite clear that the averments of the complaint do not fix upon the defendant any liability for the damage suffered by the plaintiff.

Judgment affirmed.

Sharpstein, J., Thornton, J., McKinstry, J., and McKee, J., concurred.

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5 P. 622, 66 Cal. 368, 1885 Cal. LEXIS 442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hagerty-v-powers-cal-1885.

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