Flaherty v. Butte Electric Ry. Co.

• Decision Date: 21 January 1910
• Citation: 107 P. 416,40 Mont. 454
• Parties: FLAHERTY v. BUTTE ELECTRIC RY. CO. et al.
• Court: Montana Supreme Court

107 P. 416

40 Mont. 454

FLAHERTY v. BUTTE ELECTRIC RY. CO. et al.

Supreme Court of Montana

January 21, 1910

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.

Action by Wilfred H. Flaherty, by Laura S. Flaherty, his guardian ad litem, against the Butte Electric Railway Company and another. From a judgment for plaintiff and from an order denying a new trial, defendants appeal. Reversed and remanded.

W. M Bickford and George F. Shelton, for appellants.

M. F Canning and J. E. Healey, for respondent.

HOLLOWAY J.

This is an action for damages for personal injuries, prosecuted by the plaintiff, a minor child, by his guardian ad litem. From a judgment entered in favor of the plaintiff, and from an order denying them a new trial, the defendants appeal. There are many specifications of error; but, in view of the conclusion we have reached, only a few of them require consideration.

1. It is urged that the plaintiff cannot sue by his guardian ad litem, but must proceed under section 6485, Rev. Codes. With this we do not agree. Section 3599 of the Revised Codes provides: "A minor may enforce his rights by civil action, or other legal proceedings, in the same manner as a person of full age, except that a guardian must conduct the same." Section 6481 of the same Code also provides: "When an infant *** is a party, he must appear either by his general guardian or by a guardian ad litem appointed by the court in which the action is pending in each case. A guardian ad litem may be appointed in any case, when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to represent the infant, *** in the action or proceeding, notwithstanding he may have a general guardian and may have appeared by him."

If the provisions of section 6485 are exclusive, as contended for by appellants, then the last portion of section 6481 is meaningless. Even assuming that a minor plaintiff may proceed under section 6485, it is still within the legal discretion of the trial court to appoint a guardian ad litem under section 6481. Section 6485 is identical in meaning with section 376 of the California Code of Civil Procedure and section 9 of the Washington Code of 1881, and the construction given by the courts of California and Washington meets with our approval. Durkee v. Central P. R. R. Co., 56 Cal. 388, 38 Am. Rep. 59; Hedrick v. Ilwaco R. & N. Co., 4 Wash. 400, 30 P. 714. While authorities may be found supporting appellants' contention, we think the decision we have reached is the only one which can be made and maintain the harmony of our Code provisions.

2. The trial court was requested by defendants to instruct the jury that the negligence of the child's mother, if shown, should be imputed to the child, and, if such negligence contributed to the injury, it would bar recovery by the child. This charge the trial court refused to give, but, on the contrary, gave an instruction that the negligence of the mother, if any, could not be imputed to the child. At the time of the injury the plaintiff was less than three years of age.

In 1839 the Supreme Court of New York, in Hartfield v. Roper, 21 Wend. 615, 34 Am. Dec. 273, announced the doctrine of vicarious or imputable negligence, and the rule has been followed by the courts of New York and some other states. The doctrine is founded upon the assumption that, since the child is non sui juris, the parent is keeper of, and agent for, the child, and therefore the act of negligence of the parent is deemed the act of the child, and the maxim "Qui facit per alium, facit per se," is applied. We do not know of any other reason which has been advanced in support of the doctrine, and in view of our Code (section 3590), if for no other reason, the doctrine cannot apply here. Agency implies the power to delegate authority, while the section last referred to provides: "A minor cannot give a delegation of power." But, aside from this section, we think the doctrine erroneous. Section 3599, above, gives to the minor the same authority to enforce his rights by civil action as an adult, and to defeat his right by the act of another for which he is not in any sense responsible appears to us to be tantamount to a denial of his right altogether.

In 29 Cyc. 553, it is said: "According to the great weight of authority, in an action brought for the benefit of a child who has sustained injuries through the negligence of another, negligence on the part of the parents or those standing in loco parentis will not be imputed to the child nor bar a recovery by him. The rule announced in Hartfield v. Roper has received severe condemnation in many of the courts repudiating it as authority, and is very generally regarded as unsound by text-writers." In 7 Am. & Eng. Ency. of Law (2d Ed.) 450, after referring to the courts which sustain the doctrine of the Hartfield Case, it is said: "But in other jurisdictions it is held that the negligence of the parent, guardian, or custodian is not imputable to the child, because it is in no way responsible for the danger, had no volition in establishing the relation of privity with the person whose negligence it is sought to impute to it, and should not be charged with the fault of such person in allowing it to be exposed to danger which it had not the capacity either to know or to avoid." And in 4 Current Law, 778, the same thing is said, as follows: "By weight of modern authority, negligence of a parent or custodian is not imputable to a child non sui juris, so as to bar an action for or on its behalf." 6 Current Law, 766; 8 Current Law, 1108.

The strictures upon the doctrine announced in the Hartfield Case have been severe. In 1 Thompson on Negligence, § 294, it is said: "As elsewhere seen, the doctrine of imputed negligence with reference to adults is generally repudiated, both in this country and in England. That it should be adhered to in any enlightened jurisdiction with respect to children is a reproach to the judges who uphold it. An adult person, when he commits his person to the custody of another, does so at least voluntarily. An infant does not select his custodian; it is selected for him by the laws of nature, or by circumstances beyond his control. Certainly there is no reason why the ordinary principle that, where one is injured by the concurring negligence of two persons, he has an action against either or both, should not apply in the case of an injury to a child, unless the imputation is to be put upon the law of denying to feeble and helpless infancy the same measure of protection which it accords to adults. Such a conception is cruel, heartless, and wicked. It can only hold in jurisdictions where property is placed above humanity."

In refusing the defendants' requested instruction, and in giving the charge which it did, we think the trial court was correct.

3. It is contended that there is such a variance between plaintiff's pleadings...