Torts: Negligence: Liability of Parent for Injury Received through Violation of Statute byMinor ChildSource: Michigan Law Review, Vol. 23, No. 1 (Nov., 1924), pp. 83-84Published by: The Michigan Law Review AssociationStable URL: http://www.jstor.org/stable/1278975 .

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relying on defendants' certificate as to the quality of the rails. The quality proved inferior and plaintiffs sought to recover for defendants' negligence. Defendants had no knowledge at the time they inspected the rails that plain- tiffs were going to purchase them. Held, plaintiffs could not recover as de- fendants owed no duty to plaintiffs not to be negligent. There was no privity of contract, the plaintiffs not having requested a report from defendants at the time the latter made the inspection. National Iron and Steel Co. v. Hunt et al, 312 Ill. 245.

The decision on the facts would not be quarreled with by many courts of last resort. But in its reasoning the Illinois courts adopts a position which, while supported by many leading cases throughout the country, is indefensible in principle. See 22 MICH. L. REV. 200 for a discussion and authorities com- menting upon Glanzer v. Shepard, 233 N. Y. 236. In that case B was a public weigher. A hired him to weigh a quantity of beans which were sold to C. B knew the beans were to be sold to C and that C was going to rely on his report. In allowing recovery to C for the losses sustained by reason of B's negligence the court, speaking through Cardozo, J. said: "In such circum- stances, the assumption of the task of weighing was the assumption of a duty to weigh carefully for the benefit of all whose conduct was to be governed. We do not need to state the duty in terms of contract or of privity. * * * Given the contract and the relation, the duty is imposed by law." If, in the principal case, a duty to plaintiffs for the breach of which they can base an action in tort is absent, it is due, not to the lack of contract privity, but to the circumstance, found in the instant case, but absent in Glanzer v. Shepard, supra, that defendants did not and could not have anticipated any injury to plaintiffs.

TORTS-NEGLIGENCE-LIABILITY OF PARENT FOR INJURY RECEIVED THROUGH VIOLATION OF STATUTE BY MINOR CHILD.-A parent purchased a

motorcycle and placed it under the control of his fifteen year old son, taking out the license in the name of the son and permitting him to operate it con- trary to a state statute which forbade minors under the age of sixteen to drive motor vehicles on the state highways unless accompanied by an adult. While so engaged in a violation of this statute the son injured the minor plain- tiff. Held, that the parent was liable for the torts of his minor son since he knew and consented to the violation of the state statute. Hopkins v. Droppers (Wis. I924) I98 N. W. 738.

The above case was not decided on the grounds of liability of the parent for the torts of his minor child. Such liability does not exist, in spite of pop- ular belief to the contrary. Chastain v. Johns, I20 Ga. 977; Kumba v. Gilham, 103 Wis. 312; Erlich v. Heis, I93 Ala. 669; Smith v. Jordan, 2II Mass. 269; Zeeb v. Bahnmaier, 103 Kan. 599. Nor is the decision an application of the family-car doctrine by which the head of the family is held liable for the negligent acts of members of his family who are driving the car for family purposes, for here the motorcycle belonged to the son and was used for his own pleasure. For a further discussion of the above doctrine see I9 MICH. L. REv. 543. The explanation of this case lies chiefly in a consideration of the

relying on defendants' certificate as to the quality of the rails. The quality proved inferior and plaintiffs sought to recover for defendants' negligence. Defendants had no knowledge at the time they inspected the rails that plain- tiffs were going to purchase them. Held, plaintiffs could not recover as de- fendants owed no duty to plaintiffs not to be negligent. There was no privity of contract, the plaintiffs not having requested a report from defendants at the time the latter made the inspection. National Iron and Steel Co. v. Hunt et al, 312 Ill. 245.

The decision on the facts would not be quarreled with by many courts of last resort. But in its reasoning the Illinois courts adopts a position which, while supported by many leading cases throughout the country, is indefensible in principle. See 22 MICH. L. REV. 200 for a discussion and authorities com- menting upon Glanzer v. Shepard, 233 N. Y. 236. In that case B was a public weigher. A hired him to weigh a quantity of beans which were sold to C. B knew the beans were to be sold to C and that C was going to rely on his report. In allowing recovery to C for the losses sustained by reason of B's negligence the court, speaking through Cardozo, J. said: "In such circum- stances, the assumption of the task of weighing was the assumption of a duty to weigh carefully for the benefit of all whose conduct was to be governed. We do not need to state the duty in terms of contract or of privity. * * * Given the contract and the relation, the duty is imposed by law." If, in the principal case, a duty to plaintiffs for the breach of which they can base an action in tort is absent, it is due, not to the lack of contract privity, but to the circumstance, found in the instant case, but absent in Glanzer v. Shepard, supra, that defendants did not and could not have anticipated any injury to plaintiffs.

TORTS-NEGLIGENCE-LIABILITY OF PARENT FOR INJURY RECEIVED THROUGH VIOLATION OF STATUTE BY MINOR CHILD.-A parent purchased a

motorcycle and placed it under the control of his fifteen year old son, taking out the license in the name of the son and permitting him to operate it con- trary to a state statute which forbade minors under the age of sixteen to drive motor vehicles on the state highways unless accompanied by an adult. While so engaged in a violation of this statute the son injured the minor plain- tiff. Held, that the parent was liable for the torts of his minor son since he knew and consented to the violation of the state statute. Hopkins v. Droppers (Wis. I924) I98 N. W. 738.

The above case was not decided on the grounds of liability of the parent for the torts of his minor child. Such liability does not exist, in spite of pop- ular belief to the contrary. Chastain v. Johns, I20 Ga. 977; Kumba v. Gilham, 103 Wis. 312; Erlich v. Heis, I93 Ala. 669; Smith v. Jordan, 2II Mass. 269; Zeeb v. Bahnmaier, 103 Kan. 599. Nor is the decision an application of the family-car doctrine by which the head of the family is held liable for the negligent acts of members of his family who are driving the car for family purposes, for here the motorcycle belonged to the son and was used for his own pleasure. For a further discussion of the above doctrine see I9 MICH. L. REv. 543. The explanation of this case lies chiefly in a consideration of the

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MICHIGAN LAW REVIEW MICHIGAN LAW REVIEW

effect of the statute on the acts of the parent and the son. Let us assume that the son is guilty of negligence in the operation of his motorcycle. Clearly it follows that he is liable to the injured party on common law principles. What effect has the statute? It fixes the standard of duty of every driver to the public with respect to the age limit, and violations of such statutes are almost universally held negligence per se in suits by the injured parties. Osborne v. McMasters, 40 Minn. 103; Walker v. Klopp, 99 Neb. 794; also E. R. Thayer, "Public Wrong and Private Action", 27 HARV. L. REV. 3I7. If we are to hold the parent liable it must be on the grounds of negligence alone. Schultz v. Morrison, I54 N. Y. S. 257; affirmed in I56 N. Y. S. 1144. The causal con- nection between the parent's gift of a motorcycle to the son and the resulting injury to the plaintiff is obvious. It is more difficult to establish the parent's duty to the plaintiff, but it is probable that he did owe a duty to the public, and incidentally the plaintiff as a member of the public, not to give a motor vehicle to a person known to him to be incompetent. Then when we have a statute setting up a test for competency, the violation of which is negligence per se on the part of the violator, which statute the parent knowingly enables his son to violate, there is some real reason for holding the parent guilty of negligence per se himself. That result has been reached in Schultz v. Mor- rison, supra, and Taylor v. Stewart, 172 N. C. 203, as well as in the principal case. As the court said in Schultz v. Morrison, "When the defendant per- mitted the act he became a party to the violation of the statute." The son is held guilty of negligence per se and it is submitted that the principal case is correct in holding the parent responsible also.

TRUSTS-TRUST DISTINGUISHED FROM DEBT.-Defendants were induced by fraudulent promises to lend their money to one Ponzi. This money was deposited by him in the H. Bank together with other money fraudulently ac- quired from others. Ponzi subsequently drew out sums greater, in the aggre- gate, than the balance in the bank at the time of the above deposits, but pre- served a general balance in his favor by transferring to H. Bank funds from other banks, acquired from other defrauded persons, out of which balance he repaid defendants, who took with knowledge of his insolvency. Held, de- fendants' money could not be traced into the deposits which constituted the general balance out of which they were paid, so as to impress an implied trust upon those funds, and such failure so to trace it constituted defendants mere creditors, and payment to them within the prescribed four months was a preference under Bankruptcy Act, ?6ob, as amended by Act June 25, I9IO, ?II

(Comp. Stat. ?9644). Cunningham v. Brown, (U. S. Sup. Ct., April 1924) 44 Sup. Ct. Rep. 424.

In proceedings arising under the Bankruptcy Act, the' question whether a series of transactions create a trust or a debt is often of vital importance. If a trust is created, then the cestui may recover his specific property if he can identify it or its proceeds. 2 COLLIER ON BANKRUPTCY, I3th ed. I44o; National Bank v. Insurance Co., 104 U. S. 54; Knatchbull v. Hallett, I3 Ch. Div. 696. Or he may establish a lien upon any property or fund into which he can trace his property, for an amount equal to the amount of his property that has

effect of the statute on the acts of the parent and the son. Let us assume that the son is guilty of negligence in the operation of his motorcycle. Clearly it follows that he is liable to the injured party on common law principles. What effect has the statute? It fixes the standard of duty of every driver to the public with respect to the age limit, and violations of such statutes are almost universally held negligence per se in suits by the injured parties. Osborne v. McMasters, 40 Minn. 103; Walker v. Klopp, 99 Neb. 794; also E. R. Thayer, "Public Wrong and Private Action", 27 HARV. L. REV. 3I7. If we are to hold the parent liable it must be on the grounds of negligence alone. Schultz v. Morrison, I54 N. Y. S. 257; affirmed in I56 N. Y. S. 1144. The causal con- nection between the parent's gift of a motorcycle to the son and the resulting injury to the plaintiff is obvious. It is more difficult to establish the parent's duty to the plaintiff, but it is probable that he did owe a duty to the public, and incidentally the plaintiff as a member of the public, not to give a motor vehicle to a person known to him to be incompetent. Then when we have a statute setting up a test for competency, the violation of which is negligence per se on the part of the violator, which statute the parent knowingly enables his son to violate, there is some real reason for holding the parent guilty of negligence per se himself. That result has been reached in Schultz v. Mor- rison, supra, and Taylor v. Stewart, 172 N. C. 203, as well as in the principal case. As the court said in Schultz v. Morrison, "When the defendant per- mitted the act he became a party to the violation of the statute." The son is held guilty of negligence per se and it is submitted that the principal case is correct in holding the parent responsible also.

TRUSTS-TRUST DISTINGUISHED FROM DEBT.-Defendants were induced by fraudulent promises to lend their money to one Ponzi. This money was deposited by him in the H. Bank together with other money fraudulently ac- quired from others. Ponzi subsequently drew out sums greater, in the aggre- gate, than the balance in the bank at the time of the above deposits, but pre- served a general balance in his favor by transferring to H. Bank funds from other banks, acquired from other defrauded persons, out of which balance he repaid defendants, who took with knowledge of his insolvency. Held, de- fendants' money could not be traced into the deposits which constituted the general balance out of which they were paid, so as to impress an implied trust upon those funds, and such failure so to trace it constituted defendants mere creditors, and payment to them within the prescribed four months was a preference under Bankruptcy Act, ?6ob, as amended by Act June 25, I9IO, ?II

(Comp. Stat. ?9644). Cunningham v. Brown, (U. S. Sup. Ct., April 1924) 44 Sup. Ct. Rep. 424.

In proceedings arising under the Bankruptcy Act, the' question whether a series of transactions create a trust or a debt is often of vital importance. If a trust is created, then the cestui may recover his specific property if he can identify it or its proceeds. 2 COLLIER ON BANKRUPTCY, I3th ed. I44o; National Bank v. Insurance Co., 104 U. S. 54; Knatchbull v. Hallett, I3 Ch. Div. 696. Or he may establish a lien upon any property or fund into which he can trace his property, for an amount equal to the amount of his property that has

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