Dunks v. Grey

• Decision Date: 14 September 1880
• Citation: 3 F. 862
• Parties: DUNKS v. GREY. [1]
• Court: U.S. District Court — Eastern District of Pennsylvania

3 F. 862

DUNKS v. GREY. ^[1]

United States Circuit Court, E.D. Pennsylvania.

September 14, 1880

Thomas J. Grier and George W. Dyer, for complainant.

John E Shaw, for respondent.

Rule to show cause why attachment should not issue against respondent for contempt in not obeying a preliminary injunction restraining him from manufacturing and selling articles infringing complainant's patents. Upon the return of the rule the matter was, by agreement of counsel, referred to a master, who found the following facts:

The respondent, Truman N. Grey, had been, in 1876, the general agent in Philadelphia of H. W. Ladd, a spring-bed manufacturer of Boston, Mass., who had a branch store in Philadelphia. In that year respondent took into his employ his minor son, E. H. Grey, then about 14 years of age. In 1877 the business of the branch house declined, and in order to revive it respondent began to make trips and sell goods throughout the adjacent territory, leaving his son, by direction of Mr. Ladd, in charge of the Philadelphia store. As these trips proved successful, they were gradually increased in number and duration, until they occupied a large portion of respondent's time. Meanwhile the son had developed a talent for business, and had, with the consent of his father, gradually assumed the general management of the business of the Philadelphia branch, conducting the correspondence, fixing prices, planning his father's trips, etc., until in 1880, although only 18 years of age, he was performing all the duties of general manager, while his father acted only as traveling salesman. The son's salary had been from time to time increased by Mr. Ladd, until, in 1879, it was raised above that of his father. No written agreement, and no express verbal agreement, was ever made between the father and son, or between either of them and Mr Ladd, in reference to the character or duration of the son's employment, but all three parties had, for at least a year and a half before this suit, acted as though the son were the general manager, and the father only traveling salesman. The son was unmarried and lived at home with his father, but was allowed to receive and spend his own salary and paid board to his father.

The complainant, after bringing suit in Philadelphia against Mr Ladd, and failing to obtain service therein, brought suit against respondent and obtained a preliminary injunction restraining him from selling articles infringing complainant's patents. After service of this injunction, respondent, in his employment as traveling salesman, refrained from personally manufacturing or selling the articles included in the injunction, but his son, acting as agent of Mr. Ladd, continued to carry on their manufacture and sale. Respondent advised his son not to do this, but on learning from his son that the latter intended to disregard this advice, he made no remonstrance and no attempt to interfere by the exercise of his parental authority. Two questions arose before the master: First. Whether respondent was the real head of the Philadelphia branch and the alleged agency of his son merely a fraudulent device to evade the injunction. On this question the master found in favor of respondent. Second. Whether the respondent was answerable for the acts of his son. On this question the master found that the son was still within his father's control; that while there was an emancipation so far as to vest in the son the property in his wages already earned, and the right to receive future wages, at least until some act of revocation on the part of the father; yet that the evidence did not show an intention on the part of the father to wholly emancipate the son from parental control.

As to the law applicable to these facts the master found as follows:

'How far a father is responsible or answerable for the torts of his minor child is a question not entirely settled. The tendency of the authorities is against holding the father responsible for acts of his minor children done without his knowledge or authority, and out of his presence, and to throw the burden of proof in such cases upon the party seeking to charge the father. Moon v. Towers, 8 C.B.N.S. 611; Tifft v. Tifft, 4 Denio, 175; Edwards v. Crume, 13 Kan. 348; Wilson v. Garrard, 59 Ill. 51; Paulin v. Howser, 63 Ill. 312; Chandler v. Deaton, 37 Tex. 406; Baker v. Haldeman, 24 Mo. 219. When, however, the act is committed in the presence of the father, or the circumstances show that it was done with his knowledge and by his authority, either express or implied, he is liable. Thus, in Strohl v. Levan, 39 Pa.St. 177, a father was held liable in trespass for an injury committed by the son while driving his father's team, the father being present in the wagon at the time. It is true that in this case it does not appear that the son was a minor, and the decision rests on the relation of master and servant, rather than on that of father and son. But in Beedy v. Reding, 16 Me. 362, a father was held liable in trover for wood taken at three different times by his minor sons, under circumstances which justified the jury in finding that it was taken with the father's knowledge, the court saying: 'The minor sons of the defendant, being at the time members of his family, with the defendant's team, at three several times, hauled away the plaintiff's wood. This could hardly have been done without the defendant's knowledge, if it had not his approbation. It was his duty to have restrained them from trespassing on his neighbor's property. Qui non prohibit cum prohibere possit, jubet. And this maxim may be applied with great propriety to minor children residing with and under the control of their father.' See, also, Lashbrook v. Patten, 1 Dewall, 316.

'This principle, if applicable to the present case, is fatal to the position assumed by respondent. But it was earnestly argued by respondent's counsel that the evidence showed that Elmer H. Grey had been emancipated by his father and was therefore beyond his father's control, and a number of authorities were cited in support of this position. It is, doubtless, true that the liability of the father for the acts of his minor son has its foundation in the right of the father to the custody and service of the minor, and it would follow that when, either by bad conduct, by misfortune, or by contract, the rights and duties incident to the parental relation had been entirely abandoned or abrogated, the liability of the father would cease. It has, however, been pointed out by Mr. Schouler, in his work on Domestic Relations, 561, that 'the significance of the word emancipation is not exact,' and it appears to be used by the courts sometimes to signify the mere gift by a father to his son of the latter's earnings, and sometimes to signify the complete severance, so far as legal rights and liabilities extend, of the parental relationship. Most of the cases cited by respondent involve the validity of a gift by a parent to his minor child of the latter's earnings. These cases, together with the other authorities examined by the master, establish that a father may agree with his child to allow the latter to receive the earnings of his labor, and to enter into contracts with third persons to receive wages for future services, (Cloud v. Hamilton, 11 Humph. 104; Schouler's Domestic Relations, 346;) that such agreement may be implied from circumstances, (Armstrong v. McDonald, 10 Barb. 300;) that such agreement is not per se fraudulent as to creditors, (Chase v. Elkins, 2 Vt. 290;) that the father cannot revoke such agreement so as to defeat the title of the child to wages already earned, (Torrens v. Campbell, 74 Pa.St. 470;) and that creditors cannot compel him to revoke it as to future earnings, (McCloskey v. Cyphert, 27 Pa.St. 220.) Whether, as between the father and child, the former may revoke such an agreement, made without consideration, as to future earnings, is not definitely settled. See Hall v. Hall, 44 N.H. 293; Chase v. Elkins, 2 Vt. 290;

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