Chastain v. Johns

• Citation: 48 S.E. 343,120 Ga. 977
• Parties: CHASTAIN v. JOHNS.
• Decision Date: 12 August 1904
• Court: Supreme Court of Georgia

48 S.E. 343

120 Ga. 977

CHASTAIN

v.JOHNS.

Supreme Court of Georgia.

Aug. 12, 1904.

TORT OF MINOR—LIABILITY OF PARENT.

1. A father is not liable for a tort of his minor child, with which he was in no way connected, which he did not ratify, and from which he did not derive any benefit.

¶. See Parent and Child, vol. 37, Cent Dig. § 146

(Syllabus by the Court.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by R. E. Johns against N. A. Chas-tain. Judgment for plaintiff. Defendant brings error. Reversed.

Arnold & Arnold, for plaintiff in error.

Saml. D. Hewlett, for defendant in error.

CANDLER, J. According to the petition, Mark Chastain, the minor son of the defendant in the court below, did on a named day "maliciously and negligently shoot, injure, and kill, with a rifle, gun, or other ln strument of death, one horse, one hog, and other stock, cattle, and hogs of petitioner, " damaging her $1,000. She alleged that, as the father and natural guardian of the youthful cause of the trouble, the defendant is "liable for all loss and injury caused by all acts or torts committed by" him. It was not alleged that the father participated in, connived at, or had any knowledge of the tort, or received any benefits therefrom; nor was it charged that he was negligent in any manner whatever. The sole ground upon which it is sought to hold him liable is that he is the father of the offending minor. The defendant demurred generally, and because, as claimed, the allegations of the petition "do not connect this defendant with the alleged tort, nor do they in any way make him responsible for the act of the alleged minor son." The court overruled his demurrer, and he excepted.

"Every person shall be liable for torts committed by his wife, and for torts committed by his child, or servant by his command, or in the prosecution and within the scope of his business, whether the same be by negligence or voluntary." Civ. Code 1895, § 3817. It is apparent that if the words "by his command, or in the prosecution and within the scope of his business, " in the section quoted, are to be applied only to the word "servant, " the parent is liable for all torts of his minor child, as claimed in the plaintiff's petition; otherwise if they extend to both "child" and "servant." The punctuation of the section renders its meaning in this respect somewhat ambiguous, but when it is remembered that the section is not based on any special statutory enactment, but is merely a codification of the common law on the subject, this ambiguity is at once removed. At common law the husband was liable for the wife's torts, not alone because she could own no separate estate capable of being subjected, but also because, in legal contemplation, she had no existence apart from his, and consequently could do no act that was not also his act. In Georgia, while the wife at present is, as to her property rights, practically a feme sole, the fiction of merger of her legal existence into that of her husband, so pleasing to masculine vanity, is still maintained, at least in part, for, while she may own and control property, barter and trade, and sue and be sued, in entire independence of her lord and master, she may yet do no wrong that is not chargeable to his account. Between parent and child, however, the law has never recognized a merger...