Stanford v. Smith. *

• Decision Date: 25 July 1931
• Docket Number: No. 8093.,8093.
• Citation: 159 S.E. 666,173 Ga. 165
• Parties: STANFORD. v. SMITH. *
• Court: Georgia Supreme Court

173 Ga. 165

159 S.E. 666

STANFORD.

v.SMITH. ^*

No. 8093.

Supreme Court of Georgia.

July 25, 1931.

Syllabus by the Court.

Every person shall be liable for torts committed by his child by his command or in the prosecution and within the scope of his business, whether the same be negligent or voluntary.

Syllabus by the Court.

While a child may occupy the position of a servant, or of an agent of his parent, and for his acts if he is either a quasi servant or an agent of his parent he may be liable under the general principle stated in the foregoing headnote, still a father is not liable for a minor child's tort with which he was in no way connected, which he did not ratify, and from which he did not derive any benefit,

Syllabus by the Court.

The father of a minor son who is a pupil attending a public school or high school, and who seriously injured a fellow pupil while working in a chemical laboratory by the direction of a teacher, by throwing sulphuric acid in the face of his fellow pupil, is not liable for damages because of this tortious act, it not appearing that the same was committed by the command or with the consent of the father, or that it was ratified by him, or that he derived any benefit therefrom.

Syllabus by the Court.

Applying the principles stated in the third headnote, the question propounded by the Court of Appeals is answered in the negative.

Certified Question from Court of Appeals.

Action by Z. R. Stanford, next friend, against L. H. Smith. Judgment for defendant, and plaintiff brings error. On certified question from the Court of Appeals.

Question answered.

The Court of Appeals requested instruction from the Supreme Court upon the following question: A father sent his minor son, A, as a pupil to a public high school. One day at the school, A and another pupil, B, by direction of one of the teachers, were working together in the chemical laboratory of the school and making chemical tests with a certain chemical known as concentrated sulphuric acid, which has a harmful and injurious effect upon human flesh when the acid comes in contact with it, and this was well known to A. After A and B had finished their tests, and while they were emptying and cleaning the vessels in which the acid had been poured, as was required by the school authorities, A, carelessly and negligently, and without exercising due caution as to the whereabouts of his fellow student B, threw the acid into or at a sink in the room, thereby throwing some of it into the face of B, and severely injuring B, causing bim great physical pain, mental anguish, and disfiguring him permanently. Is the father of A liable in damages for A's negligence?

Knight & Patterson, of Atlanta, for plaintiff in error.

Slaton & Hopkins, of Atlanta, for defendant in error.

RUSSELL, C. J.

To deal first with the question propounded by the Court of Appeals in its general sense and to lay down general rules upon the subject of the inquiry, it would seem best so to abbreviate the question as to consider, in a general way, when a father is liable for the torts of his minor child. The Code, § 4413 declares: "Every person shall be liable for torts committed by his wife, and for torts committed by his child, or servant, by his command or in the prosecution and within the scope of his business, whether the same be by negligence or voluntary." This court, in Chastain v. Johns, 120 Ga. 977, 48 S. E. 343, 66 L. R. A. 958, held that section 4413 is a mere codification of common-law rules, and at common law the liability of a father for the torts of his child was the same as the liability of a master for the torts of his servant. Upon that ground is based the right of action given to a father for a tort committed to his child or ward, set forth in the Civil Code of 1910, § 4412. So far as the liability of a father for the torts of his child is concerned, the tort must have been committed by the child "by his command or in the prosecution and within the scope of his business." As said in Chastain v. Johns, supra, the father is "liable for the child's torts only upon the idea that the child was his servant, and to the extent that he would be liable for the torts of any other servant." The rule, being taken from the common law, is to be liberally construed; and upon this theory this court in the Chastain Case removed any apparent ambiguity in the language of section 4413, by holding that the words, "by his command, or in the prosecution and within the scope of his business, " include child as well as servant. If the...