Hopkins v. Droppers

• Decision Date: 06 May 1924
• Citation: 198 N.W. 738,184 Wis. 400
• Parties: HOPKINS v. DROPPERS ET AL. (TWO CASES).
• Court: Wisconsin Supreme Court

184 Wis. 400

198 N.W. 738

HOPKINS

v.DROPPERS ET AL. (TWO CASES).

Supreme Court of Wisconsin.

May 6, 1924.

Appeal from Circuit Court, Milwaukee County; Gustave Gehrz, Judge.

Actions by Wells Hopkins, by Michæl Hopkins, guardian ad litem, and by Michæl Hopkins, against Henry J. Droppers and another. From orders overruling general demurrers to complaints, named defendant appeals. Affirmed.Upham, Black, Russell & Richardson, of Milwaukee, for appellant.

William L. Tibbs and L. A. Schweichler, both of Milwaukee, for respondent.

JONES, J.

It appears from the record that two actions were consolidated for the purpose of the appeals by stipulation and the order of the court. One action was brought by a minor, Wells Hopkins, by his father as guardian ad litem, and the other by Michæl Hopkins, the father, in his own right. Both were actions for a personal injury caused to the minor plaintiff by the minor defendant. General demurrers were filed by both defendants. Many of the allegations in the complaints are the same, although they vary in such manner as to state the different grounds on which the plaintiffs base their actions.

Omitting formal parts, it is alleged in the complaint of the minor that he was 11 years of age, residing with his father; that at the time of the accident and injury, the minor defendant Edward Droppers was of the age of 15 years, residing with his father, Henry Droppers, and under his control; that the defendant father having knowledge of section 1636--49, Stats., had purchased a motorcycle, and contrary to the statute placed it under the control of his infant son and permitted him to operate it; that he had also caused to be procured in the name of his son a license for its operation and that he had paid for garage rent and repairs; that the motorcycle was in its use and operation by the minor a dangerous instrumentality to himself and to others upon the highways; that Henry Droppers knew, or ought to have known in the exercise of ordinary care, of such danger, and ought to have anticipated that injury might occur to some one from such use; that the minor son was so permitted and authorized to operate the motorcycle on the streets of Milwaukee when not accompanied by any adult person; that on August 31, 1922, while Edward Droppers was so operating the motorcycle, contrary to law, by and with the knowledge and consent of his father, he took upon his motorcycle the infant plaintiff who was not aware of the danger and operated the car on Clybourne street in such a reckless and careless manner, and at such reckless and excessive speed, that the plaintiff was thrown to the ground and suffered the injuries complained of; that the negligence of the defendant father consisted in the acts above set forth; and that he neglected to use reasonable care to prevent the unlawful use by his son, and to prevent his son from taking the plaintiff and other children for rides, although he knew or ought to have known the danger thereof; that he breached his parental duty in failing to exercise proper control over his son and failing to make any reasonable attempt “to prevent the unlawful operation of said motorcycle by his said infantson, although the defendant knew, or ought to have known, that his said infant son was inexperienced in the operation of said motorcycle and that said motorcycle, when operated by his minor son, under the circumstances, was, in fact, a dangerous instrumentality, likely to cause injury, not only to those riding thereon with his said infant son, but also to other persons on and upon said highways.”

It was further alleged as to the negligence of Edward Droppers that he operated the motorcycle contrary to the statute, being only 15 years of age and not accompanied by an adult; that he operated the same in excess of 15 miles per hour in violation of one of the city ordinances and at a rate of speed greater than was reasonable and proper, having regard to the use of the highways, contrary to another city ordinance; that he failed to reduce the speed at an intersection to such a rate as would tend to avoid danger as required by one of the city ordinances; and that he failed to keep the motorcycle under proper control, and to keep a proper lookout ahead; and that these acts of negligence were proximate causes of the injury. The complaint then set forth very serious injuries which were the result of the accident.

In this case appellant's counsel have furnished us with a very able and elaborate brief which presents fully not only the authorities favorable but some of those unfavorable to their contentions. They argue at some length certain questions which we shall not discuss and which may be eliminated for the reason that we regard them as well settled by the decisions of this court.

[1] Among these subjects are the following: Parents are not liable for the torts committed by their minor children without some participation in the fault by the parent. There may be liability on the ground of agency or the relation of master and servant; and no presumption of agency arises from the domestic relationship.

[2] Automobiles are not inherently or per se dangerous machines so as to render their owners liable on that ground alone for injuries resulting from their use. Steffen Adv. Co. v. McNaughton, 142 Wis. 49, 124 N. W. 1016, 26 L. R. A. (N. S.) 382, 19 Ann. Cas. 1227;Crossett v. Goelzer, 177 Wis. 455, 188 N. W. 627. We see no reason why the same rule does not apply to motorcycles.

Although the courts differ as to the family purpose doctrine as applied to vehicles of this general character, that doctrine has not been approved in this state. Crossett v. Goelzer, 177 Wis. 455, 188 N. W. 627.

[3] There are no allegations in the complaints showing that the son in this case was engaged in the business of his father, and hence no liability can be predicated on the ground of agency or the relation of master and servant.

Counsel for plaintiffs do not claim that the father in this case is liable on any of these grounds, but do claim that a parent may be liable for an injury caused by his minor child when the acts of the parent make it possible for the child to cause the injury complained of where the father ought to have anticipated that some injury might happen to some one because of his acts.

In this connection, counsel for plaintiffs place much reliance on the following statute:

“No person under the age of sixteen years, unless accompanied by parent, guardian or other adult person, and no intoxicated person shall operate, ride or drive any automobile, motor truck, motor delivery wagon, passenger automobile bus, motorcycle or other similar motor vehicle, along or upon any public highway of this state. * * *” Section 1636--49, Stats.

But it is claimed by the defendants' counsel that this statute imposes no liability upon any one except the operator of the machine, and that the penalties for violation are imposed on him alone, and that the minor alone is responsible for breaches of the criminal law. It is probably true that under the terms of the statute the adult defendant would not be liable in a criminal action for any of the acts stated in the complaint. But this is beside the point. The real question is whether under such a state of facts he has incurred any civil liability.

This statute was undoubtedly enacted for a double purpose. It was not only to prevent minors within the prohibited class from injuring themselves, but, what is more important, to prevent injury to the life and limb of others. Although it is true, as counsel argue, that minors under 16 may acquire great skill in managing automobiles and motorcycles, it was doubtless the view of the Legislature that as a rule minors under 16 are less skilled in managing such machines than their elders. Not only that, they are as a rule less thoughtful of their own safety and the safety of others than in maturer years.

[4] The statute under consideration subjects the offender to fine or imprisonment. It is well settled, at least in this state, that a violation of statutes of this character resulting in injury to another is negligence per se. Kadolph v. Herman, 166 Wis. 577, 166 N. W. 433;Ludke v. Burck, 160 Wis. 440, 152 N. W. 190, L. R. A. 1915D, 968;Steinkrause v. Eckstein, 170 Wis. 487, 175 N. W. 988;Benesch v. Pagel, 171 Wis. 620, 177 N. W. 861.

Violation of such statutes is a want of ordinary care, and negligence as a matter of law, but not gross negligence such as is attributable to those who violate statutes prohibiting the sale of firearms and the employment of minors under 16 years in certain employments. These are regarded as offenses so serious and so regardless of human safety and human life that contributory negligence of the injured person is no defense. Pizzo v. Wiemann, 149 Wis. 235, 134 N. W. 899, 38 L. R. A. (N. S.) 678, Ann. Cas. 1913C, 803;Pinoza v. Northern C. Co., 152 Wis. 473, 140 N. W. 84;Ludke v. Burck, 160 Wis. 440, 152 N. W. 190, L. R. A. 1915D, 968.

[5] There can be no escape from the conclusion, assuming the allegations of the complaint to be true, that the minor in this case was guilty of negligence, but not of that degree of negligence which would deprive him of the right to show that the injury was caused by the contributory negligence of the plaintiff, or that his violation of the statute had no proximate causal connection with the accident. Ludke v. Burck, 160 Wis. 440, 152 N. W. 190, L. R. A. 1915D, 968;Riggles v. Priest, 163 Wis. 199, 157 N. W. 755.

When we come to consider whether the complaint states facts showing negligence on the part of the father, a far more serious question arises. There is quite a general impression that parents are civilly liable for the tortious acts of their minor children. But although the books abound in cases where parents have been compelled to respond in damages for such acts, with few exceptions, the liability has been grounded on the principle of agency or the...