Bowen Ex Rel. Bowen v. Mewborn , 218 N.C. 423 ( 1940 )

ClaRksoN, J.

Iii Cooley on Torts (4tb Ed.), Yol. 1, pp. 191-8, it is said: “A father is not liable, merely because of the relation, for the torts of bis child, whether the same are negligent or willful. He is liable only on the 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. There is no necessary presumption that the child is acting as a servant of the father, but it will be so presumed when the child is living at home and using his father’s team with which he does the wrong. A parent may, however, be held liable for his own negligence in permitting his child to have access to some instrumentality potent to mischief.”

In 20 R. C. L. (Parent and Child), p. 621, sec. 33, in part, says: “It has been shown in a previous article that infants, even those of tender age, are liable in a civil action for torts committed by them. Conversely, parents are not liable for torts committed by their minor children without participation in the fault by the parent.” Madden on Domestic Relations (Handbook Series), pp. 398-9; The Law of the Domestic Relations (2nd Ed.), Eversley, p. 564; Burdick’s Law of Torts (4th Ed.), sec. 121, p. 159; Brittingham v. Stadiem, 151 N. C., 299 (300); Ballinger v. Rader, 153 N. C., 488; Linville v. Nissen, 162 N. C., 95; Taylor v. Stewart, 112 N. C., 203.

In Linville v. Nissen, supra, at p. 99, we find: “A parent is not liable for the torts of his minor son. 'The relationship does not alone make a father answerable for the wrongful acts of his minor child. There must be something besides relationship to connect him with such acts before he becomes liable. It must be shown that he has approved such acts or that the child was his servant or agent.’ Johnson v. Glidden, 74 Am. St., 795, which cites a large number of cases.”

In Watts v. Lefler, 190 N. C., 722 (725-6), is the following: “There is a conflict of decisions, but we think the greater weight sustains the position in the above cited authorities. The father — the owner of the automobile and the head of the family — has the authority to say by whom, when and where his automobile shall be driven or he can forbid the use altogether. With full knowledge of an instrumentality of this kind, he turns over the machine to his family for 'family use.’ When he does this, under the 'family doctrine,’ which applies in this State, he is held responsible for the negligent operation of the machine he has entrusted to the members of.his family.” Matthews v. Cheatham, 210 N. C., 592 (597-8).

The fact that the son, Marvin Mewborn, was driving his father’s car was no evidence that this was the instrumentality of plaintiff’s wrong. The injury and assault was caused by the lust and lasciviousness of defendant Marvin Mewborn. The charge against defendant George Mew-born is that be bad given tbe plaintiff lustful and lascivious advice. “Tbe defendant George Mewborn bad advised and counseled tbe defendant Marvin Mewborn to indulge in illicit sexual intercourse.”

In S. v. Davenport, 156 N. C., 596 (614), is tbe following: “A person aids and abets when be bas That kind of connection with tbe commission of a crime which, at common law, rendered tbe person guilty as a principal in tbe second degree. It consisted in being present at tbe time and place, and in doing some act to render aid to tbe actual perpetrator of tbe crime, though without taking a direct share in its commission.’ Black’s Diet., p. 56, citing Blackstone, 34. An abettor is one who gives 'aid and comfort,’ or who either commands, advises, instigates, or encourages another to commit a crime — a person who, by being present, by words or conduct, assists or incites another to commit tbe criminal act (Black’s Diet., p. 6) ; or one 'who so far participates in tbe commission of tbe offense as to be present for tbe purpose of assisting, if necessary; and in such case be is liable as a principal,’ citing a wealth of authorities. S. v. Epps, 213 N. C., 709 (713-14).

It is stated in Drum v. Miller, 135 N. C., 204 (214-15) : “In tbe case of conduct merely negligent, tbe question of negligence itself will depend upon tbe further question whether injurious results should be expected to flow from tbe particular act. Tbe act, in other words, becomes negligent, in a legal sense, by reason of tbe ability of a prudent man, in tbe exercise of ordinary care, to foresee that harmful results will follow its commission. Tbe doctrine is thus expressed, and many authorities cited to support it, in 21 A. & E. Ency. Law (2nd Ed.), page 487: 'In order, however, that a party may be liable for negligence, it is not necessary that be should have contemplated, or even been able to anticipate, tbe particular consequences which ensued, or tbe precise injuries sustained by tbe plaintiff. It is sufficient, if, by tbe exercise of reasonable care, tbe defendant might have foreseen that some injury would result from bis act or omission, or that consequences of a general injurious nature might have been expected.’ ”

In S. v. Cope, 204 N. C., 28 (30), citing tbe Drum case, supra, it is said: “Actionable negligence in tbe law of torts is a breach of some duty imposed by law or a want of due care — commensurate care under tbe circumstances — -which proximately results in injury to another.”

We cannot say that defendant George Mewborn, by tbe immoral advice given bis son, could have reasonably foreseen, or expected as tbe natural and probable consequences, that bis son would commit a crime and assault on plaintiff. We cannot bold him on this record for such unnatural and vicious advice. It is not alleged that tbe defendant George Mewborn participated in tbe act complained of by tbe plaintiff, nor do we think it can be said that be aided and abetted, counseled, advised or encouraged bis son in doing tbe act alleged, tbat is, committing an assault on'plaintiff. Tbe complaint fails to allege tbat tbe defendant George Mewborn counseled or advised or encouraged bis son to commit an assault on anyone. Nowbere does it allege tbat tbis counsel and advice is related to tbis act, and without connecting tbe time at wbicb tbe advice was given to tbe act itself, we tbink tbat it was too remote. It may bave been years prior to tbe act complained of. Where an individual counsels tbe commission of an act wbicb may be committed either lawfully or unlawfully, it must be presumed tbat tbe counsel intended only tbe lawful act; such counsel and advice, standing alone, is insufficient to make tbe adviser a party responsible legally for tbe unlawful act following it. Tbe complaint of tbis serious charge against tbe father is taken as true for tbe purpose of this demurrer, if be bad answered tbe complaint, it may bave been another story.

For tbe reasons given, we tbink tbe demurrer below should bave been sustained..

Reversed.