Bocock v. Rose

• Decision Date: 05 December 1963
• Citation: 213 Tenn. 195,17 McCanless 195,373 S.W.2d 441
• Parties: George Bradford BOCOCK v. Mr. and Mrs. Kenneth ROSE, Sr., et al. 17 McCanless 195, 213 Tenn. 195, 373 S.W.2d 441
• Court: Tennessee Supreme Court

Page 441

373 S.W.2d 441

George Bradford BOCOCK v. Mr. and Mrs. Kenneth ROSE, Sr., et al.

17 McCanless 195, 213 Tenn. 195, 373 S.W.2d 441

Supreme Court of Tennessee.

Dec. 5, 1963.

Robert H. Polk, Nashville, for plaintiff in error.

Hayes & Swafford, Winchester, Clinton H. Swafford, Winchester, of counsel, for defendants in error.

DYER, Justice.

In this opinion George Bradford Bocock will be referred to as plaintiff. Mr. and Mrs. Kenneth Rose, Sr., Mr. and Mrs. Ben Rose and Mr. and Mrs. Ray Garrett, Sr., as defendants.

The plaintiff sued defendants jointly and severally, for $25,000.00 damages as a result of an alleged assault and battery made upon the person of plaintiff, without cause or provocation, by the minor sons of defendants. The declaration alleged defendants had a duty to discipline their minor sons when they have knowledge of said sons' propensities to assault others; that defendants knew or should have known their sons had such propensity to assault and batter others; that defendants having such knowledge had failed to restrain their sons; that plaintiff's injuries and damages were due to the assault upon him by defendants' sons; and that as direct result of defendants' failure to restrain or discipline their sons plaintiff was injured.

Defendants filed a demurrer to this declaration which was sustained by the Trial Judge and plaintiff has seasonably appealed to this Court.

The question for decision is whether this declaration states a cause of action; or more particularly whether defendants owe plaintiff a duty to supervise and control their minor sons under the circumstances alleged. Construing the declaration in its most favorable light such would appear to state a cause of action; if there is such duty as alleged. Otherwise the declaration will fail.

In North v. Payne, 154 Wash. 241, 281 P. 991 (1929) an action was brought against the parents of a child who had injured a second child. The appellate court in this case said:

'While it is also true that the parents did not actually participate in the particular tort here in controversy, they did know of the habit of their child of striking other children with sticks. They were bound to know that was a habit liable to cause injury to other children, especially smaller children. No one could be so familiar with the habit of a child of that age as the parent, and while the parent cannot be held to the degree of liability of one harboring a vicious dog after notice of its viciousness, or a wild animal, we think parents should be held responsible and liable for a dangerous habit of a child which they have knowledge and take no steps to correct, or restrain. It is that which constitutes the negligence on the part of the parent.' 281 P. at 992.

In Ryley v. Lafferty, 45 F.2d 641 (9 Cir. 1930), the complaint against the parents alleged the defendants' son's vicious disposition, his habit of beating smaller boys, the parents' knowledge of such a habit, their failure to restrain their son, and their failure to heed the admonitions of other parents who knew of the child's habit which it was alleged amounted to encouraging the child. The Court in overriding a demurrer to the complaint holding that there was a cause of action stated:

'* * * Yet the principle applicable to the facts alleged in this case is that the parents are liable if it appears that they knew that their child was guilty of committing the particular kind of tort habitually and encouraged the child, as alleged, and made no effort to correct or restrain him.' 45 F.2d at 642.

The language in the Ryley case that the parents encouraged the child is misleading, as it is apparent any encouragement was due to the failure to restrain the child when the parents had knowledge of his dangerous habit.

In Condel v. Savo, 350 Pa. 350, 39 A.2d 51, 155 A.L.R. 81 (1944) the Court dealing with a similar situation presented in the case at bar said:

'Mere knowledge by the parents of the child's mischievous and reckless disposition is not enough to make them liable * * * but their liability arises from failure to exercise the control which they have over their child, when they know, or in the exercise of due care should know, that injury to another is a natural and probable consequence, for such failure to act and restrain the child amounts to an approval and sanction of, or consent to, his acts by the parents.' 39 A.2d at 53.

Bieker v. Owens, 234 Ark. 97, 350 S.W.2d 522 (1961) was a suit against parents for an alleged assault by their child upon another child. The Supreme Court in Arkansas said:

'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.' 350 S.W.2d 524

'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.' 350 S.W.2d 524

The cases of Landis v. Condon, 95 Ohio App. 28, 116 N.E.2d 602 (1952) and Caldwell v. Zaher, 344 Mass. 590, 183 N.E.2d 706 (1962) are recent cases where parents have been held liable for their children's willful assaults, when the parents knew of the children's propensities to assault others, but failed to take any steps to correct or restrain the children.

67 C.J.S. Parent and Child Sec. 68 has this to say:

'As a general rule, a parent may be liable for an injury which is caused directly by the child, where the negligence of the parent...