Baker v. Haldeman

• Decision Date: 31 January 1857
• Citation: 24 Mo. 219
• Parties: BAKER, Plaintiff in Error, v. HALDEMAN, Defendant in Error.
• Court: Missouri Supreme Court

24 Mo. 219

BAKER, Plaintiff in Error,

v.HALDEMAN, Defendant in Error.

Supreme Court of Missouri.

January Term, 1857.

1. A father is not responsible for injuries caused by an assault made by his minor child.

Error to Dent Circuit Court.

This was an action to recover damages for an alleged assault upon the minor son of plaintiff by the minor son of defendant. The petition charges an assault with a knife, and a cutting, maiming and disabling therewith; and a loss of service and an expenditure of large sums in the cure, etc. The following instruction was given at the instance of defendant: “Unless the plaintiff has establishd that the boy was of a vicious disposition and habits, and that the father knew it at the time, he is not responsible in damages for the injury sustained, and the jury will find for the defendant.”

Ewing, for plaintiff in error, cited Dennis v. Clark, 2 Cush. 347; 2 Walf. on Parties, 1068, 1082; Hall v. Hallender, 4 B. & Cr. 660; 8 Watts, 232; Wilt v. Vickers, 2 Kent Com. 186; 1 Blacks. Com. 453.

LEONARD, Judge, delivered the opinion of the court.

It seems to have been assumed in the trial of this cause that a father was responsible for the injury caused by the willful wrong of his minor child; and the question discussed was whether this liability existed in all cases, or was confined to the case where the child was of a vicious disposition, and the father was aware of it. The court decided, at the instance of the defendant, that he was liable only in the latter class of cases, and the jury accordingly found for the defendant.

An opinion, we believe, prevails to some extent in the community, that a father must answer for all the civil injuries inflicted by his child, and we may suppose, therefore, that there is a foundation for this sentiment in the common sense of mankind. And accordingly, it was the doctrine of the early Roman law that if a child or a slave committed an injury, the person injured had a remedy for the wrong done him against the father or master, but he had no action against the son or the slave; and the father or master might either pay the damages to the injured person or surrender the offender to him. (Smith's Dictionary of Greek and Roman Antiquities; “ Noxalis Actio,” Justinian Inst. by Saunders, Lib. 4, Tit. 8.) And in the Institutes it is said to be with great reason that the master is permitted to deliver up the offending slave; for that it would be very unjust, when a slave does a wrongful act, to make the master...