Herndobler v. Rippen

146 P. 140 | Or. | 1915

Mr. Justice Benson

delivered the opinion of the court.

Plaintiff submits two assignments of error, for which his learned counsel earnestly contend: First, it is insisted that there was sufficient competent testimony to support the verdict; and, second, that the court exceeded its powers in entering a judgment of dismissal as to defendants Phillip and Cecelia Eippen.

1. In considering the first of these assignments, it will be noted that the complaint charges active participation in the acts complained of, by all these defendants, and does not allege any parental or guardianship relation, nor Is there any allegation that the defendant Cecil is of such tender years or inexperience as to cast upon the parents a liability for negligence arising out of passive acquiescence in the torts of the minor son. There is no evidence in the record sustaining the charge that the parents aided, abetted or suggested to the son, Cecil, any of the acts relied upon for a recovery.

The general rule at common law is that a parent is not liable in damages for the independent negligent act of his minor child, merely by reason of that relation. Judg’e Cooley, in his work on Torts, declares the settled doctrine thus:

“A father is not liable, merely because of the relation, for the torts of his child, whether the same are negligent or willful. He is liable only on the same grounds that he would be liable for the wrong of any other person, as that he directed or ratified the act, or took the benefit of it, or that the child was at the time acting as his servant”: 1 Cooley on Torts (3 ed.), 180.

The case of Palm v. Ivorson, 117 Ill. App. 535, is a case which aptly illustrates what we regard as a correct application of the doctrine, and from it we quote:

“A father is not liable for the tort of his infant child upon the ground alone that he is the father. A person who negligently places in the hands of, or authorizes the use by another person of, a dangerous instrument or article under such circumstances that he has reason to know that it is likely to produce injury, is liable for the natural and probable consequences of his act, to any person injured who is not himself at fault. ’ ’

Again, in the same opinion we read:

“Such danger cannot be reasonably anticipated from permitting a boy 12 years old to have and use a gun when he is experienced in the use of guns, is acquainted with their construction and the proper mode of carrying, handling and discharging them, and has been careful in their use. ’ ’

The court in the case cited held that the trial court should have directed a verdict.

In the case at bar the defendant Cecil Rippen was at least 16 years old, was familiar with the use of firearms, and had owned and used a rifle at the age of 9 years. We are of the opinion that the trial court should have directed a verdict for the adult defendants.

2. We now consider the second assignment of error. It appears to be the established doctrine that a trial court exceeds its powers when, upon motion for a new trial, it sets aside a verdict, in whole or in part, and enters a final judgment without such trial. As a general rule, this doctrine is a wise one, although cases may-arise in which it produces unsatisfactory results. The case at bar is a striking example of the embarrassment to which it may lead. The court below should have directed a verdict for the defendants Phillip and Cecelia Rippen. If the cause were to be sent back for a new trial, the result must necessarily be the same. A new trial would be an obviously futile thing. When it appears that justice has been done and that a new trial would result in the same judgment, the action of the lower court will not be reversed for erroneous rulings.

The judgment is affirmed. Affirmed.

Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Burnett concur.