Herrman v. Maley , 159 Miss. 538 ( 1931 )

The liability of the appellees is placed in the opinion in chief on two grounds: First, that rule of the common law, on which this court acted in Anderson v. Daniel, 136 Miss. 456, 101 So. 498, and which is thus stated in Am. L. Inst. Restatement L. of Torts (tent. draft No. 5), section 260: "One who supplies, directly or through a third person, a chattel for the use of another whom the supplier knows or from facts known to him should know to be likely because of his youth, inexperience or otherwise, to use it in a manner involving unreasonable risk of bodily harm to . . . others whom the supplier should expect to share in, or be in the vicinity of its use, is subject to liability for bodily harm caused thereby to them." And, second (as will appear from the last paragraph of the opinion in chief), that a parent who knows that his child is an incompetent and reckless driver owes to the public the duty of restraining it from driving an automobile, and in default thereof, would be responsible for an injury inflicted by negligent driving by the child of an automobile supplied it, not by the parent, but by another.

The evidence discloses that the automobile was purchased by C.E. Maley for use by his wife.

If Richard Maley was driving the automobile with the consent of his parents, on the occasion in question, and the fact, if such it is, that he was an incompetent and reckless driver was known to them, I will assume, for the purpose of the argument, that both of them would be responsible for the tort committed by him on the first ground of liability hereinbefore set out.

Both Mr. and Mrs. Maley testified that Richard had been forbidden to drive the automobile, and that no permission to drive it had been given him on the occasion in question.

The appellant's evidence is to the effect that C.E. Maley permitted Richard to drive the automobile on the afternoon preceding the night of the commission of the tort here complained of, but that the automobile had been returned by him to the Maley residence, and he was then told not to drive it, but to leave it there.

It appears from the evidence, therefore, without conflict, that young Maley was not driving the automobile with his parents' consent when the injury here complained of was inflicted, which consent, either express or implied, is necessary to impose liability on them because of having supplied him with the automobile. That a reason was given for directing him not to drive the automobile on that occasion, which was temporary in its nature, is, in my judgment, of no consequence.

No authority is cited in support of the second ground of liability hereinbefore set out, and none has come under my observation. It finds no support in Anderson v. Daniel, supra, for there the defendant was the owner of, and permitted his son to drive, an automobile knowing he was an incompetent and reckless driver.

This court has repeatedly held: "The parent of a minor child cannot be held liable for the tortious acts of the child on the mere ground of the parental relationship, but that the parent is responsible only on the same ground that he is for the torts of other persons." Dempsey v. Frazier, 119 Miss. 1, 80 So. 341, 342; Howell v. Norton, 134 Miss. 616, 99 So. 440. In Dempsey v. Frazier, it was said: "There are some exceptions to this general rule not necessary to be noticed here by us. These exceptions are stated in section 2269 of Labatt's Master and Servant, vol. 6 (2 Ed.)." It is there said: "One of the exceptions to the general rule stated in the preceding section is that a father may be held responsible for a wrongful act committed by his minor child, if his own conduct in the premises was such as to render him a principal tort-feasor, or, in other words, if his personal fault was a proximate cause of the injury complained of. Liability in this point of view is predicable whenever one of the following situations is established." Three such situations are there set forth, none of which exist here, and all of which seem to be such as would impose liability without reference to the relationship of parent and child. The fourth exception there stated is, "That the father was negligent in respect of having omitted to take such precautions as the circumstances indicated to be proper for the purpose of preventing commission of the tort."

In most of the cases cited in support of this text the parent was sought to be held responsible for a tort committed by a young child on the parents' premises, or with an instrumentality given the child by the parent, or left by him in such a place that the child had easy access to it. No case has come under my observation except where very young, or mentally incompetent, children were involved, where a parent has been held responsible for a tort committed by his child solely on the ground that he was negligent in not prohibiting the child from doing the act which resulted in the commission of the tort.

Richard Maley was seventeen years old, and, whatever the rule in this connection would have been had he been so young as to require the constant supervision and control of his parents, the rule cannot, and I do not understand the authorities to hold that it does, have any application here.