Kumba v. Gilham

• Decision Date: 16 May 1899
• Citation: 79 N.W. 325,103 Wis. 312
• Parties: KUMBA v. GILHAM.
• Court: Wisconsin Supreme Court

103 Wis. 312

79 N.W. 325

KUMBA

v.GILHAM.

Supreme Court of Wisconsin.

May 16, 1899.

Error to circuit court, Marathon county.

Action by Phillip Kumba against William Gilham for negligence of defendant's son. A verdict for plaintiff was set aside, and a new trial granted. Thereupon a verdict for defendant was directed, and plaintiff brings error. Affirmed.

The defendant on a Wednesday or Thursday in November hired from a liveryman a team to send for his daughter; asking for a quiet team, as he wanted to send his son, about 14 years old. He at the same time notified the liveryman that he should want a team on Sunday to take his daughter back to her school. The son went, and brought home his sister. On Saturday the father telephoned the liveryman that he would not send his son back with the sister, as it was too cold, but would go himself, and directed him to send the team to his (the father's) meat market at 9 o'clock Sunday morning. On Sunday morning one Poronto, who was teaching school in the same vicinity as the defendant's daughter, went to the livery stable, and said that he would take the team which defendant had ordered, as he had arranged to ride out with them, and that the son would go with them and bring the team back. He was accordingly given the team by the liveryman, went to defendant's house, got the son and daughter, and started off, all without any knowledge or consent on the part of the defendant, who, being disappointed by the nonarrival of the team at his market, telephoned to the liveryman, and learned that Poronto had called for it, whereupon he hastened to his house in order to prevent his son's going, but was too late; the party being a mile away by that time. On the way back the young man experienced an accident, the front wheels coming out from under the buggy and breaking the kingbolt, when he was still about 10 miles from home. He thereupon ran the buggy just as far out on the side of the road as he could, so that the nearest part of it was somewhere from 9 to 12 feet from the nearest traveled track, and went home without it. On his son's arrival the defendant telephoned the liveryman of the fact of the breakdown, and inquired if the liveryman would send for the disabled buggy, or wished him (the father) to do so. The liveryman said he would. On the Wednesday following, the plaintiff, driving a span of horses which he had had four or five weeks, and which he testified were well broken and gentle, but which numerous other witnesses testified were skittish, and one of them greatly given to shying and wheeling out of the road at any unusual object, was driving on the road where the buggy was. It had been changed from its natural posture, right side up, in which the son left it, so that the dashboard was up in the air and the top rested down on the ground. The horses shied and threw plaintiff out, and then ran away, causing some damage. It was proved that the buggy was of the most ordinary type, such as was commonly driven throughout that neighborhood. The liveryman estimated that there were a thousand practically like it in Wausau, and that nearly every farmer had one. A verdict was rendered for the plaintiff upon the first trial, which the court set aside, granting a new trial. Upon the second trial the court ordered a verdict for the defendant. Appellant assigns as error both the granting of a new trial and the ordering of a verdict for the defendant on the second trial.Mylrea, Marchetti & Bird, for plaintiff in error.

Silverthorn, Hurley, Ryan & Jones, for defendant in error.

DODGE, J. (after stating the facts).

The primary question of law here presented is whether the defendant is liable for the acts of his son, assuming them to be negligent. As to this question the facts are without dispute. The law is well settled that no general liability of the father for torts of a minor son exists. Such liability in general results only from the rule of respondeat superior when the fact of agency for the father is proved, and no presumption of agency results from the domestic relationship. 17 Am. & Eng. Enc. Law, p. 392; Schouler, Dom. Rel. § 263; Schaefer v. Osterbrink, 67 Wis. 495, 30 N. W. 922;Winkler v. Fisher, 95 Wis. 355, 70 N. W. 477; Moon v. Towers, 8 C. B. (N. S.) 611. True, it is said in Schaefer v. Osterbrink that, where an injury is caused by a minor in driving his father's team upon the father's business, it may suffice to show that such acts have been customarily done in the presence and with the knowledge of the father; but this rule bears only on sufficiency of the proof of the agency or authority, and has no application to the present case. Again, there is a line of cases sustaining liability for acts done in the father's presence (Strohl v. Levan,...