McCarthy v. Heiselman

125 N.Y.S. 13 | N.Y. App. Div. | 1910

Carr, J.:

This action is to recover for an unlawful conversion of moneys belonging to the plaintiffs. There are three defendants; one is a boy, under age, and the other two are his parents. The complaint alleges that the boy was hired by the plaintiffs to work in their store with the consent of the parents, and that during the employment he turned over his wages to them. It then alleges that the boy from time to time, “in the due course and line of his employment, and without the knowledge or consent of the plaintiffs, -» * * took from the possession of the plaintiffs, and unlawfully and illegally retained and kept, and converted to the use of the defendants [italics ours] various small sums of money aggregat, ing, however, * * * about One thousand dollars.” The defendant parents have moved for judgment on the pleadings, claiming that as against them, the complaint states no cause of action. On a motion of this character the complaint is to be searched as on demurrer. A demurrer cannot be sustained simply because the facts in a complaint are averred imperfectly or informally, but the pleading will be deemed to allege whatever can be implied from its statements by fair and reasonable intendment. (Kain v. Larkin, 141 N. Y. 144.)

It will be noted that the complaint does not state that the parents have received from the boy the moneys which he stole, nor aver that the stealing was done at their suggestion or with their consent. The pleading does state that the boy gave his wages to. the parents, and the pleaders contend that there is a fair implication that he likewise turned over his stealings to them. To hold this would push the doctrine of fair intendment or implication to an absurd length. It is clearly not permissible here. It is true that the essence of a conversion is not an evil intent, and that the exercise of an unlawful dominion over the chattel or personal property, even in good faith, may constitute a conversion. (Boyce v. Brockway, 31 N. Y. 490.) And where a complaint sets forth the receipt or possession of the chattel by the defendant, in order to charge conversion, it is not necessary to specify in detail the tortious acts of dominion exercised by the defendant, and a mere statement that he “ converted it to his own use ” will be held sufficient. (Decker v. Mathews, 12 N. Y. 313.)

Yet, in this pleading, the charge is that the boy converted the moneys, not simply to his own use, but “ to the use of the defendants,” including himself and his parents. As to them there is no allegation of a taking or possession on their part on which can b.e based any implication of the exercise by them of a dominion over the chattels. If, however, the action be treated as one for money had and received, there is likewise no sufficient allegation in the complaint that the parents ever received and had the moneys in question. The complaint states a good cause of action for conversion by the boy but none as against the parents, unless they are to be held liable for the boy’s tort. The general rule of the common law is that a parent is not liable for the torts of a child without some participation on his part in the unlawful act. (Tifft v. Tifft, 4 Den. 175; 29 Cyc. 1665.) Such participation is to be alleged and proved; it is not presumed, as a matter of law, from the° simple relation of parent and child.

The facts of the case as developed on a trial may give rise to a presumption of fact, as in Beedy v. Reding (16 Maine, 362) and Hower v. Ulrich (156 Penn. St. 410). In both these cases the parent was held liable for the trover of minor children who carried away wood and corn from third persons and the parent kept and used the articles. These cases- were decided, however, on the theory that the parent by his acts had either constituted the child as his agent or had subsequently ratified an implied agency. The liability arose clearly not from the relation of parent but from the principles of agency. In the pleading before us there is no fact alleged to indicate any agency of the boy for the parents in the conversion or the disposition of the proceeds of the conversion. Was the boy in this case, while employed by the plaintiffs, the agent of his parents in any aspect % It is true he went into the plaintiffs’ service with the consent of his parents and turned over his wages to them. This fact, alone, does not make him the servant of his parents while engaged in the service of another. To hold otherwise would enlarge the scope of a parent’s liability for the torts of a child beyond reasonable limits, and lead to a result not only most inconvenient but contrary to the common understanding

The order should be reversed, with ten dollars costs and disbursements, and the motion for judgment granted, unless within twenty days the plaintiffs apply at Special Term and obtain leave to serve an amended complaint.

Woodward, Burr, Thomas and Rich, JJ., concurred.

Order reversed, with ten dollars costs and. disbursements, and motion for judgment granted, unless within twenty days the plaintiffs apply at Special Term and obtain leave to serve an amended complaint.