Mirick v. Suchy

• Decision Date: 08 December 1906
• Citation: 74 Kan. 715,87 P. 1141
• Parties: MIRICK v. SUCHY. BARRY v. SUCHY.
• Court: Kansas Supreme Court

87 P. 1141

74 Kan. 715

MIRICK v. SUCHY.

BARRY v. SUCHY.

Supreme Court of Kansas

December 8, 1906

Syllabus

In an action against a father for damages resulting from the setting out of a fire by his minor sons, it is not a sufficient allegation of the parent’s liability to allege that the sons, “while they were engaged in his [the father’s] business and for his benefit, and working for him, purposely, carelessly, and negligently set out a fire.” It is necessary to allege, in substance if done in the absence of the father and without his direction, that the setting out of the fire was a service being rendered for the father, or resulting from an act done in such service; in other words, that the fire was set out or caused by an act within the scope of the employment.

[Ed Note.–For cases in point, see Cent. Dig. vol. 37, Parent and Child, §§ 146, 147.]

Error from District Court, Rush County; Chas. E. Lobdell, Judge.

Actions by B. E. Mirick against John Suchy and by R. C. Barry against John Suchy. Judgments for defendant, and plaintiffs bring error. Affirmed.

Each of the above cases was commenced in the district court of Rush county on a petition which is substantially the same as the other, except as to the name of the plaintiff, the description and value of the property alleged to have been destroyed by the fire, and the amount of judgment prayed for. The common defendant filed a general demurrer to the petition in each action. The demurrers were sustained by the court each plaintiff elected to stand on his petition, and judgment was rendered against him for costs. Each plaintiff, as plaintiff in error, brings his case to this court for a review of the ruling, and all parties agree to submit the cases together as one. After a proper description of his property alleged to have been destroyed by the fire, and setting forth the value thereof, the petition in Barry’s case, omitting the prayer for relief and the signatures, is as follows: “That on the said 30th day of March, 1905, Joe Suchy and John Suchy, Jr., minor sons of the said defendant John Suchy, and under the age of 21 years, who resided at home with their father, and who worked for him and were under his care, management, and control, while engaged in the business of their father, the said minor sons, working for his interests and for his benefit on his farm, situated in said Pleasantdale township, in Rush county, Kansas, some distance from where the plaintiff’s property hereinbefore described was located, while engaged in repairing a fence on the farm owned by their father, the said defendant, while they were engaged in his business and for his benefit, and working for him, purposely, carelessly, and negligently set out a fire on their father’s farm, and through their failure and neglect in setting out the said fire, and in not taking proper care and means to control the said fire which they had willfully, purposely, carelessly, and negligently set out on their father’s farm, the said fire spread from their father’s farm to the real estate owned by the said pla...