Paul v. Hummel

43 Mo. 119

• Court: Supreme Court of Missouri
• Decided: October 15, 1868
• Status: Published

Opinion

Wagner,, Judge,

delivered the opinion of the court.

/In Baker v. Haldeman, 24 Mo. 219, it was decided by this court that a father was not responsible for injuries caused by an assault made by his minor child. But an attempt is made to evade that decision, or at least to exclude this case Horn its reasoning, by averring in the petition that the child of the defendant, who caused the injury, was dangerous to the plaintiff and her children, by reason of his vicious and destructive temper and of his sudden and causeless fits of anger, and that defendant had notice of that fact. It is not averred that defendant sanctioned the wrong committed by his minor son, either b*efore or after the act. But the petition was doubtless framed upon the theory that an instruction given in the trial court, in Baker’s case, was correct law, as that case was not reversed on error. The instruction was that, “unless the plaintiff has established that the boy was of vicious disposition and habits, and that the father knew it at the time, he is not responsible in damages for the injury sustained, and the jury will find for the defendant.” The verdict was for the defendant, and the judgment therein was affirmed; but Judge Leonard, in giving the opinion of the court, said that, although the instruction given at the instance o£ the defendant was erroneous, it was not to the plaintiff’s prejudice, and was therefore not a matter for him to complain of. It will be thus seen that the doctrine contended for derives no support or authority from that case. In Tifft v. Tifft, 4 Denio, 175, the action was brought to recover damages for the killing of' a hog, by a dog which was set on by defendant’s daughter, but the court held that the defendant was not answerable for the act of his daughter, done in his absence, and without his authority or approval; but the daughter, whether an infant or not, was answerable for her own trespass. A parent cannot be held liable for the willful trespasses and torts of his infant children, when he neither assents to nor ratifies them. When the minor has committed a tort, with force, he is liable at any age to be proceeded against as an adult. ( Reeve Dom. Rel. 386 ; 1 Chit. Pl. 66; Jennings v. Randall, 8 T. R. 335; Bacon Abr. Infancy, H; Loop v. Loop, 1 Verm. 177; Bullock v. Babcock, 3 Wend. 391.) I know of no principle^ law by which the action is maintainable. There is no such relation existing between father and son, though the son be living with his father as a member of his family, as will make the acts of the son more binding upon the father than the acts of any other person. The father is not liable for the contracts of the son, within age, except they be for necessaries, and it would be a great departure from the law to hold him responsible for the son’s trespasses and wrongs.

I think the demurrer was rightfully sustained, and the judgment will be affirmed.

The other judges concur,