Opinion
Decided January 71, 1927.
Negligence — Parent not liable where child engaged in sportive pastime — Liability not created merely by relationship of parent and child — Knowledge or act by parent essential to recovery.
1. Act of minor child during play, in revolving rubber casing against another child, was not result of weak or vicious mind so as to make parent legally liable for resulting damages.
2. Parent is not liable for torts of minor child merely because of relationship, but there must be some knowledge by parent with respect to act or some act of parent connecting him with circumstance which is basis for recovery.
ERROR: Court of Appeals for Cuyahoga county.
Messrs. Schaefer Lawrence, for plaintiff in error.
Mr. Edward Blythin, for defendants in error.
This cause comes into this court on error from the court of common pleas of Cuyahoga county, Ohio, wherein error is charged in that the court of common pleas, upon motion, directed a verdict for the defendants at the close of the testimony, and erred in the instructions given upon the question of punitive or exemplary damages based upon malice. Error is further charged in that the verdict and judgment are against the weight of the evidence. It appears that the plaintiff, Christian Ringhaver, is the father of a minor of tender years, and that the defendant Schlueter is likewise the father of a minor of tender years, and the suit is one for the recovery of damages based upon an injury received by the minor of plaintiff by the act of the minor of defendant, in that while playing with the rubber casing for the wheel of an automobile it revolved towards and against the child of plaintiff and injured it. It is urged that the father defendant is responsible, not only on account of the relationship existing, but also because the child is vicious and demented and therefore dangerous to be at large.
While the evidence is conflicting upon the question as to the accountability of defendant's minor, yet from a reading of the whole record it appears quite clear that there is no error of a prejudicial nature in this respect, because the act complained of is not in and of itself tinctured with any quality pertaining to dementia or a weak or vicious mind. Further, it is not such an act as separates itself from the general conduct of youth while engaged in sportive pastime, so that upon the question of a scintilla of evidence we think the character of the conduct is such that when the question of evidence is examined it will appear from the record that the evidence is not of such materiality that it can be said to be possessed of that legal attribute which is inherently an ingredient of evidence. In other words, the act itself has no character other than that of the common innocence of childhood, to which there cannot be attached the legal responsibility of a parent to such a degree as to make him legally liable for damages ensuing therefrom.
It is a well-settled rule, as bearing upon the pure question of law raised in this case, that a parent is not responsible for the torts of his minor child merely because of the relationship. There must be some knowledge on the part of the parent with respect to the act, or some act of the father that connects him with the circumstances which is the basis for the recovery. In the case at bar the act was relieved of any vicious quality as far as the act itself is concerned. The children were on mutual terms of playfulness, and therefore there is an absence of any motive or intent on the part of defendant's child to commit the act, and, again, there is nothing vicious or criminal in the act itself.
In addition to this, the record discloses no evidence whatsoever that connects the father with the act of his child, and there is nothing in the record relating to the history of the child, or his previous conduct, that would warrant any guardianship over the child other than that given to all parents by reason of the relationship alone.
We think this is the well-settled law. In Cluthe v. Svendsen, 9 Dec. Rep., 458, 13 W.L.B., 633, it was held that a father is not liable for an assault by a demented and dangerous son, seven years old, unless he knew his condition and knowingly permitted him to be at large unwatched. If a father promotes and encourages his minor son in discharging skyrockets in the street, as where he gave a son of 18 years money for July 4th, knowing the son would buy rockets and would discharge them in front of the house, an injured person suing both cannot be nonsuited as to the father. Cameron v. Heister, 10 Dec. Rep., 651, 22 W.L.B., 384, leave to file petition in error refused, Heister v. Cameron, 22 W.L.B., 453. "An infant is responsible for his own torts, and that a father cannot be held for the independent wrong of his child, but the father is liable if he was in any way connected with the infant's wrongdoing either actively or passively." Lacker v. Ewald, 8 N.P., 204, 11 O.D. (N.P.), 337.
We quote the following from 20 Ruling Case Law, 627, 628: "But the father is liable, if he was himself guilty of negligence, as by * * * permitting an imbecile child, who had set other fires, to have matches. * * * To prove his own negligence, evidence is admissible that he knew of the son's former reckless conduct. The same liability may attach, though the son be of age, if he is insane or of feeble mind, and the father had such knowledge of his condition as should have warned him of the danger."
These cases are cited by able counsel for plaintiff in error, but it is plain and clear that the elements in those cases connecting the parent with the act of the child do not substantially exist in any wise in the case at bar.
For these reasons we do not think that there is error of a prejudicial nature in the record.
Holding these views, the judgment of the lower court is hereby affirmed.
Judgment affirmed.
LEVINE, P.J., concurs.
VICKERY, J., not participating.