Hopkins v. Droppers , 191 Wis. 334 ( 1926 )

Eschweiler, J.

Under the complaint as it was before us on the former appeal, 184 Wis. 400, 402, 198 N. W. 738, it was alleged that at the time of the injury in question Edward was operating the motorcycle contrary to law (sub. (1), sec. 85.08, Stats.) by and with the knowledge and consent of his father, the defendant Henry J. Droppers, who had furnished the motorcycle.

Upon the trial several witnesses testified that the defendant father, Henry J., forbade the son to thereafter operate the motorcycle in such violation of the statute, namely, unaccompanied by parent, guardian, or other adult person. No testimony was offered by the plaintiff to contradict this, and from the framing of the speciál verdict and, so far as anything in the record shows, the facts of the giving of such command and that it was done in good faith were evidently assumed as being verities, which take, out of the case, so far as the defendant father is concerned, an important and material element of the facts as recited in the complaint. We are therefore now squarely presented with the question as to whether or not the father should, in the exercise of any duty he owed’to others, have done more or otherwise in the matter of the control of his son and the prevention of the use of the motorcycle in violation of the statute; it being unnecessary to consider the challenge by the defendant Henry J. Droppers on his appeal to the first finding in the verdict, viz. that the violation of the statute (sub. (1), sec. 85.08) was a proximate cause of-the injury.

On the former appeal it was declared to be the law of this case that the motorcycle, like the automobile, is not, in and of itself, within the class of dangerous instrumentalities such as explosives or firearms. There was no violation of any penal statute in the purchase by the defendant parent of the motorcycle or the giving of the same to the son, or in the paying for the necessary license or expenses for its operation. The driving of the motorcycle by the son, though under sixteen, on the public highways when accompanied by some older person in accordance with the statute was not unlawful. The father, therefore, was under no duty to prevent the son from making any use at all of the motorcycle, having the same in his possession or ■ under his control. Appreciating, as he testified, that it were better to restrain the son from operating the motorcycle unaccompanied by some adult until the few months had passed before Edward reached the age of sixteen years when such statutory restriction would be lifted, the parent gave the command for a, compliance with the statutes. There was no evidence offered to show that the son Edward was unruly, wilful, or repeatedly disobedient to proper parental instructions, or other than the normal child of whom absolute and perfect' obedience is seldom expected and never obtained. While the father knew that the boy had on five several occasions operated the motorcycle in violation of the statute during the three weeks that it had been at his disposal, yet none of such had been done in violation of any parental command. The effect of the finding of the jury, however, as approved-by the trial court, is that a parent under such circumstances should and must do more than was done in this case. But just what should be done is not indicated by the special verdict nor very definitely suggested here.

The law cannot require that the motorcycle should be entirely removed from the possession and control of a minor under the age of sixteen, because the law recognizes a permissible use of the machine by such minor; much less could there be any requirement that, at least in the absence of a showing that the son was a known contemnor of parental authority (a situation not now before us), there should be any thought of physical restraint of the son in anticipation of a possible intentional violation of such commands; neither can it reasonably require a parent to ’ anticipate a forgetfulness or intentional disobedience of such a partial restriction of the use of even such a tempting article as a motorcycle and therefore keep it under lock and key, subject to be released only upon express parental consent and knowledge. If such rigid rules were to be recognized as to the motorcycle in this case they would necessarily apply also to automobiles used by various members of the family in the many purposes to which such vehicles are now put, and compel quite a substantial change in presentrday treatment of such matters.

Considering the record, therefore, as it now stands before us, and upon the evidence, 'we are constrained to hold, as a matter of law, that the material element upon which, under the allegations of the complaint and as the law of this case, it was held the defendant parent could be held individually responsible for the injuries to the infant plaintiff, is no longer in this case, and that the jury’s answers to the ninth and tenth questions of the special verdict, upon which answers alone the defendant father’s liability can be predicated, are without proper or sufficient support and the jury’s answers to the same should have been changed -and defendant Henry J. Droppers’ motion for judgment in his favor granted.

No authorities particularly helpful in' disposing of this question of the liability of a parent under such a situation have been called to our attention. There is discussion on the general subject of responsibility or of the liability or non-liability of a parent in the exercise of parental control in such cases as Corby v. Poster, 29 Ont. Law Rep. 83, an action to hold the parent for a kick by the son and where there is pointed out the difference between the rule of the civil law — holding a parent responsible for the torts of his infant child — and that of the common law — denying such responsibility; Hagerty v. Powers, 66 Cal. 368, 5 Pac. 622, denying a right to recover against a parent for the careless use of a pistol by a son permitted by the parent to have such weapon; Paul v. Hummel, 43 Mo. 119, refusing to establish liability of the father for the results of the known vicious temper of the child. In Sale v. Atkins, 206 Ky. 224, 267 S. W. 223, a father was held not liable for injuries caused by the minor child’s using the father’s automobile in violation of positive instructions; and in Way v. Guest (Tex. Civ. App.) 272 S. W. 217, with many cases cited, plaintiff was denied right to recover for injuries caused by defendant’s minor daughter driving his car without his consent.

The appellant Edward, R. Droppers, however, driving the motorcycle at the time of the injury,- not only in violation of the statute, but also failing to exercise ordinary care in respect to the rate of speed, lookout, management, and control, as found by several answers in the special verdict, and each of which was found to be a proximate cause of the injury, cannot be relieved of liability. There is sufficient to warrant a judgment against him as the driver if there be support in the record for any one of these several findings of the jury as to his alleged failure to use ordinary care.

We are satisfied there is warrant for one or more of such answers and we need therefore examine or inquire no further. There was some breach of duty which Edward owed to his youthful companion in the then use of the motorcycle and sufficient to support a judgment against him in favor of both plaintiffs. We are not unmindful of what has been recently said by this court in Cleary v. Eckart, ante, p. 114, 210 N. W. 267, regarding the relationship between a gratuitous guest and driver, but deem the questions disposed of in that case not material here.

By the Court. — Judgment against the defendant Henry J. Droppers is reversed, and the compláint dismissed as to him. Judgment against the defendant Edward R. Droppers is affirmed.