Kumba v. Gilham

| Wis. | May 16, 1899

Dodge, J.

1. The primary question of law here presented is whether the defendant is liable for the acts of his son* assuming them to be negligent. As to this question the facts are without dispute. The law is well settled that no general liability of the father for torts of a minor son exists. Such liability in general results only from the rule of re-spondeat superior when the fact of agency for the father is proved, and no presumption of agency results from the domestic relationship. 17 Am. & Eng. Ency. of Law, 392; Schouler, Dom. Rel. § 263; Schaefer v. Osterbrink, 67 Wis. 495" court="Wis." date_filed="1886-12-14" href="https://app.midpage.ai/document/schaefer-v-osterbrink-6605428?utm_source=webapp" opinion_id="6605428">67 Wis. 495; Winkler v. Fisher, 95 Wis. 355" court="Wis." date_filed="1897-02-23" href="https://app.midpage.ai/document/winkler-v-fisher-8185452?utm_source=webapp" opinion_id="8185452">95 Wis. 355; Moon v. Towers, 8 C. B. (N. S.), 611.

True, it is said in Schaefer v. Osterbrink that, where an injury is caused by a minor in driving his father’s team upon the father’s business, it may suffice to show that such acts have been customarily done in the presence and with the knowledge of the father; but this rule bears only on sufficiency of the proof of the agency or authority, and has no application to the present case.

Again, there is a line of cases sustaining liability for acts done in the father’s presence (Strohl v. Levan, 39 Pa. St. 177), or where acts are done by very young children on the father’s premises, likely to frighten passing teams, and it was shown that similar conduct had been customary, to the father’s knowledge (Hoverson v. Hoker, 60 Wis. 511). These cases are predicated on the assumed power of control by a parent over his children, and the latter upon the responsibility of one who maintains on his premises anything known to be dangerous or having a tendency to injure others. But, apart from these exceptional aspects of the question, proof is essential of the conferring of authority to do something for the father, within the scope of which is the tort alleged; and, as Mr. Schouler sums up the subject, it is always a defense to show that the parent was not able to prevent the act complained of. It is not sufficient that the child was engaged in some undertaking beneficial to the father, or which he desired to have accomplished, unless such engagement be in accordance with directions or authority from the father. Winkler v. Fisher, supra; Moon v. Towers, supra.

In the case at bar there is a complete absence of any contact of the father with the transaction, in the way of instruction, .authorization, or even interest in the enterprise, further than the mere fact that an object which he (the father) desired was being accomplished, namely, the transportation of the daughter to her school. But this purpose was not being accomplished in the manner desired by the father, nor in accordance with any instructions or authority from him. His plan was to hire a different team, and drive his daughter out himself, being unwilling that the son should go. That purpose, without his consent and beyond his control, was interrupted and modified to suit the convenience of a third person, Poronto, who desired to travel to the same vicinity, and who obtained from the liveryman the team in question. True, he said he desired to take the team which had been ordered by the defendant, but no authority or even knowledge on the defendant’s part is shown. The team, of course, had to be brought back, and the son went for that purpose; but the father did not authorize it, and would have prevented it, had it been within his power. It is hardly possible, therefore, to say even that the son was engaged upon business of the father. Quite as much was he engaged upon the business of Poronto. Even if it can be said that the son was in charge of the father’s team, — á proposition in much doubt, — he clearly was not so in charge by any authority or consent, but, on the contrary, against the wishes and beyond the control of the father.

The suggested acts of ratification are wholly insufficient to accomplish that result. They consist merely in an inquiry of the liveryman as to whether he would go after the disabled buggy, or wished defendant to. This was after the event, when the defendant had no control over the matter, when he could not undo what had been done; and the words are not significant of approval of that which had been done without his consent, and which he would have prevented if he could. Heath v. Haul, 81 Wis. 532" court="Wis." date_filed="1892-03-22" href="https://app.midpage.ai/document/heath-v-paul-8183910?utm_source=webapp" opinion_id="8183910">81 Wis. 532, 538.

2. It seems to us clear that a buggy left as this was, with the top half down, right side up, although the front wheels were gone, standing ten feet out of the traveled tract of a country road through the woods, could not be calculated to frighten and render uncontrollable ordinarily quiet and docile horses. They are accustomed to pass such buggies many times daily when traveling the highways, and to see them at home. Nichols v. Athens, 66 Me. 402" court="Me." date_filed="1877-03-05" href="https://app.midpage.ai/document/nichols-v-inhabitants-of-athens-4933077?utm_source=webapp" opinion_id="4933077">66 Me. 402.

If, then, we assume that the buggy, in the situation and posture which it occupied at the time of the injury, had become a thing likely to frighten reasonably quiet horses, the question arises, Was the act of the son in leaving the buggy by the side of the road in a different posture, not so dangerous, the proximate cause of the injury ? That involves the permissibility of the inference by the jury that a reasonably prudent person, leaving a disabled buggy ten feet outside of the traveled track of a highway until it can be sent for by the owner, must reasonably anticipate that, before it is so sent for and removed, it will be interfered with by others, and put in a posture likely to frighten horses; involving considerable gratuitous exertion for the mere purpose of doing harm. The statement of the question renders argument unnecessary. Such act is one of vandalism, void of benefit to any third person, and not to be anticipated upon a country road a long distance from habitations.

We conclude, therefore, on both of the grounds above stated, that the defendant was, by undisputed evidence, shown not to be liable, and that a verdict in his favor was properly directed, which fully disposes of the case. No prejudicial error can, therefore, have been committed in setting aside the first verdict and granting new trial.

By the Cowrt.— Judgment affirmed.

Bardeen, J., took no part.