Martin Bros. v. Murphree

• Decision Date: 18 June 1923
• Docket Number: 23405
• Court: Mississippi Supreme Court
• Parties: MARTIN BROS. v. MURPHREE et al

96 So. 691

132 Miss. 509

MARTIN BROS. v. MURPHREE et al

No. 23405

Supreme Court of Mississippi

June 18, 1923

MASTER AND SERVANT. Father not liable for act of son, not within scope of employment.

Where a boy sent by his father to cut corn stalks on his father's farm thoughtlessly and carelessly strikes a match, from which dry grass is set on fire, and the fire spreads to the premises of another, and burns hay, etc., the father is not liable for the loss, where the fire was not necessary or proper in the employment of the boy, but was wholly disconnected with his employment. To make the father liable the act must be within the scope of employment of the boy.

HON. C P. LONG, Judge.

APPEAL from circuit court of Monroe county, HON. C. P. LONG, Judge.

Suit by Martin Bros. against R. B. Murphree and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Judgment affirmed.

Leftwich & Tubb, for appellant.

There is but one question presented by the record for the decision of this court, and that is, whether the act of Theodore Murphree in throwing the match in the grass was such as the law contemplates his father must be held liable for. The general rule in such cases is that a relation of master and servant, must be shown just the same as if all parties were adults and the relation of father and son existing. Unlike the ordinary relation of master and servant however, no contract of hire is necessary. The rule is very aptly stated in Schafer v. Osterbrink, 58 Am. Rep. 875.

The question that then presents itself for solution is whether the act in question was such as to be considered as in the course of the agent's employment and, therefore, the result of which must be answered by the master. The general rule of master and servant is that the master is liable for the negligence of the servant while performing a task within the scope of his employment. We find no difference in that rule and the rule established by the cases where minors are involved except there is a tendency on the part of authorities to hold the master more strictly responsible where the servant is a minor and his own son than where the servant is an adult and unrelated. In relating the rule the cases have come to quote the old expression "within the scope of the employment," and now we find the expression where acts of minor sons are involved, "within the course of the employment." In other words, the law contemplates that the father is always responsible for the acts of his minor son, in theory at least. If a father chooses to place his son of tender years in a position of responsibility where there are opportunities for damage to the property and rights of others, in case the son departs from the line of work set out for him, then the law says that anything done while in the course of the performance of that particular task, resulting to the damage of a third party, must be answered for by the master or the father of the minor agent.

While the father of Theodore Murphree did not contemplate that his son would willfully strike a match and throw it into the dry grass and thereby start a conflagration which destroyed his neighbor's property, he did know that he had put his son in a position of responsibility, that he had given him the implements to do the particular task, and he did know that there were emergencies which might arise either by negligence or accidents on the part of the son, which would require immediate action on the part of somebody to prevent damage to the property and rights of others.

We submit that under the principles announced in the decisions which we will hereafter cite, that the father should be held liable for the gross and willful negligence of his son in maliciously starting the fire in question which resulted in the property loss complained of. Teagarden v. McLaughlin, 44 Am. Rep. 332; Andrus v. Howard, 84 Am. Dec. 680; Haverson v. Naker, 50 Am. Rep. 381; Broadstreet v. Hall, 10 L. R. A. (N. S.) 934; 20 R. C. L. 628, par. 34, and authorities cited; Chastain v. Jones, 66 L. R. A. 959; Meers v. McDowell, 53 L. R. A. 789; Notes, 50 Am. Rep. 386, and 74 Am. St. Rep. 804.

The cases in Mississippi involving the principle of master and servant as between father and child are not numerous but the following cases discuss principles which throw considerable light on the question at bar: Winn v. Haliday, 109 Miss. 691; Wood v. Clements, 113 Miss. 727; Woods v. Clements, 114 Miss. ; Dempsey v. Frazier, 119 Miss. 1.

All of these cases are where some negligent act of the minor son was committed by him, while in the course or while in the act of doing something authorized by his father. Most of these cases are automobile cases, and, while some of the principles are different in fact, many of them, are similar.

We will be met by the argument that the setting out of the fire could not be possibly construed as within the scope of Theodore's employment that it was a direct departure from the nature of his employment and was an independent and disconnected act for which the minor alone is responsible. We do not believe the wisdom of the law will sustain such an argument and while we concede that the early cases were stricter in their interpretations of the law in such cases, the trend of modern authority has been to broaden the responsibility and thus prevent innocent third parties and property owners from being helpless in the hands of irresponsible youths placed in possession of responsible and important positions by careless parents.

The amount involved in this particular suit is small but while the record does not show it, we venture to inform the court, that there are two other cases pending, the termination of which depends on the decision of the case at bar.

We confidently believe that the court will hold that the learned circuit judge was in error in granting a peremptory instruction to defendants and that a reversal will be ordered and the case sent back for trial by a jury.

Paine & Paine, for appellee.

We submit that...