Hagerty v. Powers
5 P. 622
Cal.
1885
Check Treatment

Lead Opinion

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.





Dissenting Opinion

Myrick, J., dissenting.

I dissent. As the complaint alleges that the father willfully, carelessly, and negligently countenanced his child in having the pistol, it is sufficient to show a cause of action.