Johnson v. Glidden

• Decision Date: 18 October 1898
• Citation: 76 N.W. 933,11 S.D. 237
• Parties: CHARLOTTE JOHNSON, Plaintiff and respondent, v. ARTHUR J. GLIDDEN, Defendant and appellant.
• Court: South Dakota Supreme Court

11 S.D. 237

76 N.W. 933

CHARLOTTE JOHNSON, Plaintiff and respondent,

v.

ARTHUR J. GLIDDEN, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Spink County, SD Hon. A. W. Campbell, Judge Affirmed A. W. Burtt Attorneys for appellant. H. G. Warnock Attorneys for respondent. Opinion filed October 18, 1898

HANEY, J.

Plaintiff’s cause of action is thus stated in her complaint:

“(1) That Earnest Glidden is the son of said defendant, and was on the 17th day of August of the age of 13 years, living at home with his said father, and under his custody, care and control.

(2) That prior to said 17th day of August, 1895, said defendant carelessly and negligently purchased and gave to said Earnest Glidden a certain firearm, known as a gun, which said Earnest Glidden was in the habit of using in a careless and negligent manner, so as to endanger the life and property of persons about him, all of which was well known to to this defendant. and who encouraged, countenanced and consented to his carrying said gun and in so using it in said careless and negligent manner.

(3) That on the said 17th day of August, 1895, this plaintiff was watering a colt on her own premises, when said Earnest Glidden came along with his gun, and, against the request of this plaintiff, carelessly and negligently fired said gun in front of said colt; that said colt thereby became frightened and ran away, and this plaintiff, without any fault of her own, became entangled in a picket rope attached to said colt, and was dragged for a long distance over the prairie, and was severely injured, in that her flesh was badly bruised and lacerated, and her back was strained, so, as she believes, to be permanently injured.

(4) That by reason of said injuries she suffered great bodily pain, and was confined to her bed for a long time, and was and still is unable to do her housework, or any work, and is, as she believes, permanently injured and otherwise greatly injured, and was compelled to spend $100 for medical attendance, nursing and help about the house, to her damage of five thousand dollars.”

The allegations of the complaint are denied, except as to the first paragraph, and defendant alleges that the plaintiff was guilty of contributory negligence.

Does the complaint state a cause of action? It was not assailed until the trial began, and it must be liberally construed. Our Civil Code provides that “neither parent or child is answerable, as such, for the act of the other.” Comp. Laws, § 2620.

It is a rule of the common law that “a father is not liable in damages for the torts of his child committed without his knowledge, consent, participation, or sanction, and not in the course of his employment of the child.” Schouler, Dom. Rel. § 263. The allegations of the complaint connecting defendant with the injurious act of his minor child are these: (1) He purchased and gave him a gun; (2) the child used it negligently; (3) the father knew he was so using it; and (4) he encouraged, countenanced and consented to such negligent use. It may be conceded that it is not negligence per se for a father to furnish his son, aged 13 years, with a gun, or permit him to use one, if the boy uses it with ordinary care and the father is justified in presuming that it will be so used; but, if he knows that his son is using the firearm in such a careless and negligent manner as to endanger the life and property of persons about him, it is certainly his duty to interpose his parental authority, and prevent, if possible, a course of conduct on the part of his child which is likely to produce injury to others. In a case in Wisconsin, where two minor sons of the defendant came out of their father’s house, and fired off a pistol, and shouted, and so frightened the plaintiff’s horses that they jumped suddenly forward and threw a person out of the seat and injured her, the court employs this language:

“It will be seen by an examination of the record that it became important for the plaintiffs to connect the father with the acts of his young sons, which the plaintiffs allege caused the injury complained of, and for this purpose the plaintiffs offered evidence tending to prove that the sons had frequently. before the day upon which the accident happened, called abusive names, shouted and frequently discharged firearms when persons were passing the house of the defendants, and that this was often done in the presence of their father. All evidence of this kind was excluded. This, we are inclined to hold, was error. If the father permitted his young sons to shout, use abusive language, and discharge firearms at persons who were passing along the highway in front of his house, he permitted that to be done upon his premises which in its nature was likely to result in damage to those passing; and, when an injury did happen from that cause, he was not only morally, but legally responsible for the damage done.”

Hoverson v. Noker, 60 Wis. 511, 19 N.W. 382. The...