281 S.W. 998 | Ky. Ct. App. | 1926
Affirming.
A demurrer having been sustained to the petition of the appellant, who was the plaintiff below, and he having declined to plead further, his action was dismissed and he brings this appeal.
Appellant through his next friend avers in his petition that he is under twenty-one years of age but does not say how much under twenty-one he is. He further avers that the appellees have a minor son, but likewise does not say how much under twenty-one years of age the minor son is. He further states that on March 14th, 1924, this minor son of the appellees assaulted him in the city of Dayton, Campbell county, Kentucky, and inflicted upon him very serious and painful injuries. He next says that this assault on him by this minor son "was done by the coercion, authority, instruction and example of Mr. and Mrs. Louis A. Speier, they having knowledge that their son, Louis Speier, did on numerous occasions strike, beat and throw rocks at different other boys and girls at the direction and with the approval and instruction of his parents, the said Mr. and Mrs. Louis A. Speier, and that they had full knowledge of their son's bad characteristics, ways, character and habits, and that he was dangerous to society." It is by reason of these averments in his petition that appellant seeks to fix upon the appellees the responsibility for the assault of their minor son upon him.
It is conceded that a parent is not responsible for the torts of his child simply because of the relationship of parent and child. Pauley's Guardian v. Draine, 6 S.W. 329; Holland v. Goode,
So far as the son being the conduit of the appellees' negligence is concerned, it is not claimed that this son was insane or that he was not an intelligent human being, entirely responsible for his own acts. For aught that appears from the petition, he may have been just short of twenty-one years of age and fully capable of exercising his own will and entirely conscious of the probable consequences of any act he might do. It is not stated that the parents had any knowledge of the probable or impending conflict between appellant and their son or that they did anything but permit him to run at large knowing he had a mean temper. But if appellees' son was an intelligent, responsible human being, possessed of sufficient discretion to appreciate the probable results of his own acts, the assault he is alleged to have committed is his assault and is not that of his parents. The proximate cause of the assault in such state of case is not any negligence on the part of a parent in permitting an irresponsible child to run at large under such circumstances as to constitute a menace to society, but is the independent act of a responsible human being, possessed of sufficient discretion to appreciate the probable consequences of the exercise of volition on his part and of the acts he does in consequence of such exercise of such volition. The parent is then not liable for any such act of his minor child. Stephens v. Stephens, supra.
Therefore, as appellant failed to state a cause of action on either ground of liability, the trial court properly sustained the demurrer to his petition, and its judgment is affirmed. *49