Bieker v. Owens, 5-2489

• Decision Date: 30 October 1961
• Docket Number: No. 5-2489,5-2489
• Citation: 234 Ark. 97,350 S.W.2d 522
• Parties: Johnnie BIEKER, a Minor, by Otto J. Bieker, His Father and Next Friend, Appellant, v. Carroll L. OWENS, Appellee.
• Court: Arkansas Supreme Court

Page 522

350 S.W.2d 522

234 Ark. 97

Johnnie BIEKER, a Minor, by Otto J. Bieker, His Father and Next Friend, Appellant, v. Carroll L. OWENS, Appellee.

No. 5-2489.

Supreme Court of Arkansas.

Oct. 30, 1961.

Sexton & Morgan, by Thomas A. Pedron, Fort Smith, for appellant.

Shaw, Jones & Shaw, Fort Smith, for appellee.

BOHLINGER, Justice.

The appellant, plaintiff in the court below, filed in the Sebastian Circuit Court, Fort Smith District, his complaint against Milton Owens, Carroll L. Owens, Bill Griffin and M. N. Griffin, alleging that he was the minor son of Otto J. Bieker and resided in Fort Smith, Arkansas. That Milton Owens was a minor who resided with his father, Carroll L. Owens in Fort Smith; that Bill Griffin was a minor residing with his father, M. N. Griffin in Fort Smith; that on or about August 26, 1960, the defendants, Bill Griffin and Milton Owens, driving an automobile which was the property of Carroll Owens, pursued and overtook the plaintiff, Johnnie Bieker, and by driving directly in front of the automobile driven by Johnnie Bieker, forced him to stop and that the defendants, Griffin and Owens, forcibly, deliberately, maliciously, willfully and intentionally dragged the Bieker boy from his automobile and physically assaulted him by striking, beating and kicking the plaintiff and so injuring him that he was hospitalized for contusions of the face, lacerations, broken nose and mild concussion with other injuries. That the defendants, Carroll Owens and M. N. Griffin, knew that their sons, Milton and Bill, had dangerous tendencies and propensities of a willful and malicious nature and that by their lack of parental discipline and authority they had permitted, or failed to correct, the acts of their sons in the striking, beating and abusing other younger men less physically endowed than themselves and thus knowing of the propensities of these minors, the defendant parents failed and neglected to exercise needed restraint and authority over them and that due to such negligence the appellant alleges he was injured.

To this complaint Carroll L. Owens, appellee, interposed a general demurrer and the court, on February 20, 1961, sustained the demurrer and dismissed the complaint. From that action of the court comes this appeal.

'The general common law rule is that a parent is not liable for the minor child's torts unless there is some element of participation,' Bonner v. Surman, 215 Ark. 301, 220 S.W.2d 431, 433.

The 'Family Purpose Doctrine' is not accepted in this state and this court has recognized the rule that the negligence of a child cannot be imputed to the parent merely because of the parental relationship. Richardson v. Donaldson, 220 Ark. 173, 246 S.W.2d 551.

But here we are not concerned with the negligence of a child but with the negligence of the parent in permitting, either actively or passively, a minor willfully or negligently to commit such acts which could reasonably be expected to cause injury to another.

It is within reason and good logic to say that the parent has a responsibility to control minor children while they are in their formative years. For while they are not in the custody of the parents, absent any official action to the contrary, no other source of control may be found. Of course minors above a certain age are subject to criminal and civil sanctions but these sanctions are remedial rather than preventative. There is a question whether the civil sanctions are of any consequence since judgments against minors are of little practical effect. The old adage 'an ounce of prevention is worth a pound of cure,' could be applied in these situations if the responsibility for the prevention is placed on the parents.

Since each human mind and personality is exclusively that of the individual possessing it, it would be unreasonable to place an absolute responsibility for the acts of another on any person. But where the parent (1) has the opportunity and ability to control a minor, and (2) has knowledge of the tendency or proclivity of the minor to commit acts which could normally be expected to cause injury to others, and (3) after having such opportunity, ability and knowledge has failed to exercise reasonable means of controlling the minor or appreciably reduce the likelihood of injury to others because of the minor's acts, the parent should be made to respond to those who have been injured by such acts of the minor.

39 American Jurisprudence § 58 states the rule in this manner:

'Although there are some decisions which have failed to recognize this principle, the general rule is that a parent may be liable for the consequences of failure to exercise the power of control which he has over his children, where he knows, or in the exercise of due care should have known, that injury to another is a probable consequence. Thus, a father may be held liable where he knows that a tortious act is in contemplation, or that his children are persisting in a course of conduct likely to result in injury to another. Failure to restrain the child, it is said, amounts to a sanction of or consent to his acts by the parent.

'It is questionable whether mere knowledge by the parent of his child's mischievous or reckless disposition is enough to make him liable for torts of the child. * * * Certainly, where there is nothing to show any knowledge and therefore any approval by the parent of a line of conduct on the part of the child, the parent is not liable. However, it must be remembered that, as in all negligence cases, the issue in the last analysis is whether the parent exercised reasonable care under all the circumstances; therefore, especially where he...