I dissent from the conclusion reached by the majority. I think the learned circuit judge was entirely correct in his ruling throughout the case. There was certainly no theory upon which a judgment as against Mrs. Maley could be sustained. The husband is still the head of the family and has full control and custody of the minor children so long as the husband and wife are living together; he is still entitled to the household services of the wife, and the statutes fully emancipating women have not displaced the husband as the head of the household *Page 553 under the circumstances where families are living together. See Brahan v. Meridian Light Ry. Co., 121 Miss. 269, 83 So. 467. The court, in the case of Anderson v. Daniel, 136 Miss. 456, 101 So. 498, went to the utmost limit which the court can rightfully go in holding liability, but it is a far cry from the Daniel case to the present case. In the last case a father was held liable for damages resulting from a collision between a car driven by his minor son and another person, where the accident was a result of the negligence of the minor son. The liability was upheld upon the theory that the proof showed that the father habitually permitted the son to drive his automobile with knowledge that he was a reckless and dangerous driver. It is true that in that case the father made a denial that he had ever consented for the son to drive the car, but the fact was notorious that the son had driven the car publicly on numerous occasions where the father must have had knowledge of his driving. It was also firmly established that the son was, not only a reckless driver, but was known throughout the community to be such. There was no expressed prohibition in that case of the use of the car on the occasion in which the collision happened. It is a part of the duty of a father to provide reasonable conveniences and entertainment for members of his family. Where a father does furnish a car to his wife and minor children and permits them to use it, they are about his business whenever they are using it with his consent and permission. In such case the driver of the car, if a minor, is a servant of the father and about the business of the father, although he is driving for his personal pleasure alone. But, in the present case there was an express prohibition against the son taking the car on the particular occasion on which the injury occurred. This is established without dispute, and no inference from testimony can be reasonably drawn that would warrant the conclusion that *Page 554 that father or mother knew the son was taking the car or that they had consented thereto. The plaintiff's testimony shows conclusively that Mr. Maley expressly prohibited his son from taking the car on that particular occasion, and it is expressly proved by plaintiff's witness that young Maley and the witness took the car, having temporarily forgotten the prohibition, without any kind of permission whatever. Under such circumstances it seems to me that, even by the wildest stretch of the imagination, consent could not be implied.
The whole doctrine of the liability of the father for the torts of his minor child is placed upon the principle of master and servant or principal and agent, and, unless the child is in the services of the father and about the business of the father at the time of the tort, there is no liability by the father for the tort of the child. This is well established both in decisions of this state and at common law. In the case of Winn v. Haliday,109 Miss. 691, 69 So. 685, this court dealt with the question for the first time. There it was held: "As a general rule a father is not responsible for the torts of his minor son unless the latter bore to the former the relation of servant to master in the commission of the act from which the injury resulted." It was also held: "Where at the time an injury occurred from the negligent driving of an automobile a minor son was engaged in the discharge of the duty that had been imposed upon him by his father of driving the automobile when used for the convenience or pleasure of himself or the members of his family, the relation of master and servant existed between the father and the son, and the father was liable in damages for the negligent driving of the automobile by his son;" and that: "Where a father entrusted his son with an automobile under such circumstance as made the son his servant in the management of the automobile, the father was liable for the negligence of the minor *Page 555 son, whether he had actual knowledge and information that his son was a careless, reckless and negligent driver or not."
In the case of Woods v. Clements, 113 Miss. 720, 74 So. 422, L.R.A. 1917E, 357, it was held: "Where defendant, a member of a real estate firm which owned an automobile, allowed his family to use the car when it was not necessary for his business, and his adult daughter without his express consent took the car for a pleasure trip on which trip she collided with the car of plaintiff, in such case the daughter was not the servant of defendant in operating the car and he was not liable for her negligence." In the course of the opinion in this case Judge STEVENS, writing the opinion, said: "It is elementary that the father has a right to the services of his minor son; a right, to a large extent, to control his actions or movements. It may be conceded that, if the father supplies his family with an automobile to be used for the pleasure and entertainment of the entire family, he may be held liable for the negligent operation of the car by one of the minor children selected to run or operate the machine. If the father should turn the car over to a child inexperienced in driving or incompetent to handle so powerful a machine, he might be liable upon another theory. Each case must turn upon its own peculiar facts. The authorities are in accord that an automobile is not per se a dangerous agency. . . . Responsibility in this case, then, turns upon the negligence of the driver and the further and important inquiry whether the driver could be regarded as a family chauffeur or servant at the particular time of the accident. It appears that she was on no mission for her father, and the proof fails to show that the father even knew his daughter intended to use the car on the pleasure trip, here marred by an unfortunate accident. The proof, in our judgment, fails to establish the relationship of master and servant." *Page 556 Judgment of the plaintiff in that case was reversed, and on suggestion of error it was vigorously contended that the court was in error, and the family doctrine was contended for, but such contention was denied by the court. It was there held: "To make a person liable in damages for injury inflicted in the operation of an automobile, first, the relation of master and servant must exist, and second, the car must have been used at the time of the injury in the course of the master's business."
In Dempsey v. Frazier, 119 Miss. 1, 80 So. 341, 342, it is held: "The general rule of the common law is that the parent of a minor child cannot be held liable for the tortious acts of the child on the mere ground of the parental relationship, but that the parent is responsible only on the same ground that he is for the torts of other persons. . . . If the relationship of master and servant existed at the time of the tortious act of the child and the act was done in the course of this employment, then the parent would be held liable because of the doctrine of respondeat superior." It was further held in that case that, "where a father bought an automobile and gave it to his minor son, who had been practically emancipated and who operated the car for hire. In such case, where it did not appear that the son was a negligent driver, when the car was given to him, the father was not liable for the torts of the son in the operation of the car, since no relationship of master and servant existed between them."
In the case of Martin Bros. v. Murphree et al., 132 Miss. 509, 96 So. 691, it was held: "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 *Page 557 with his employment. To make the father liable, the act must be within the scope of the employment of the boy." In that case the court in its opinion said: "The boy, in performing the work assigned him by his father, is the servant of the father, and the relation of master and servant exists. The parent is liable for acts done by the minor within the scope of his employment to the same extent that the master would be for the acts of his servant, but no further. Under the proof in this record we think it is clear that the boy, in striking the match, was not acting in the scope of his employment. It is entirely disconnected, and has no relation to the business of the father. It was not necessary or proper for him to strike the match for any purpose of his task; consequently the father is not liable for his act in so doing."
In Howell v. Norton, 134 Miss. 616, 99 So. 440, it was held that: "Although the general rule is that the father of a minor child cannot be held liable for the tort of the child merely on the ground of parental relation, still, if the father authorizes or ratifies the tort, he is liable therefor."
It runs through all of these cases that to make the father liable for the torts of his minor son the relation of master and servant must exist, and the son must at the time be engaged in the scope of his employment, or else the father must have directed the act to be done or have subsequently ratified it. Liability has no other legal basis in any state or country where the common law prevails unmodified by statutory provisions. In some states the statutes have modified the common law by special enactment. In one state the civil law prevails upon this question, and under the civil law the father was liable for torts of his minor child. The common law is in accord with the Mississippi cases above quoted. *Page 558
In 20 R.C.L. 627, section 33, it is said: "It has been shown in a previous article that infants, even those of tender age, are liable in a civil action for torts committed by them. Conversely, parents are not liable for torts committed by their minor children without participation in the fault by the parent. There are several jurisdictions in which the common law rule has been changed by statutes, based on the civil law, which makes the parent liable for all torts committed by his minor children under his control. . . . It is not enough to make the father liable that he knew that his child was heedless or vicious. But the father is liable if he was himself guilty of negligence, as by allowing a young child to have a loaded gun or pistol, directing the son to frighten trespassers by firing a gun, permitting an imbecile child, who had set other fires, to have matches, or sending a boy known to be a reckless rider on an errand on a horse known to be unruly. He is liable, however, only for his own fault, not for that of the child. To prove his own negligence, evidence is admissible that he knew of the son's former reckless conduct. The same liability may attach, though the son be of age, if he is insane or of feeble mind, and the father had such knowledge of his condition as should have warned him of the danger."
In 46 C.J., p. 1329, it is said: "Under the civil law and under statutes in some jurisdictions, based thereon, a parent is liable for the torts of his minor child. But at common law it is well established that the mere relation of parent and child imposes upon the parent no liability for the torts of the child, and this rule applies to a step-parent. The parent may be liable, however, where the child's act is done as the parent's agent or servant, or where the parent's negligence makes the injury possible. Where a parent authorizes the child to act as his agent or servant in any matter, he is liable for the torts of the *Page 559 child committed in the course of the employment, but not for acts which are not within the scope of his authority or employment. This liability does not grow out of the relation of parent and child, but is based upon the relation of principal and agent, or upon that of master and servant, and is governed by the rules applicable to such relations. Authority to do the act which resulted in the injury may be derived from the parent's actual presence, or from his express or implied direction, or from a previous course of conduct; and if a father knows that his minor child is committing a tort and makes no effort to restrain him, he will be deemed to have authorized or consented to its commission so as to render him liable."
In volume 10 of L.R.A. (N.S.) 933, there is a case note appended to the case of Broadstreet v. Hall, in which the rule of liability is fully discussed and cases cited. Among other things the editor of the case note says: "The unquestioned general rule at common law is that a parent is not liable to respond in damages for the independent negligent or tortious act of his minor child merely by reason of that relation, unless it appears that the parent directed or counseled the wrongful act, or subsequently ratified it; or that the minor, at the time of committing the tort, was acting as the agent or servant of the parent, and the wrongful act was one within the scope of such employment. It may be said, however, that, by codes and statutes adopted in some jurisdictions, the parent is liable for all tortious acts of his minor children." The editor cites Ritter v. Thibodeaux (Tex. Civ. App.), 41 S.W. 492, as follows: "At common law the father is not liable for the torts of his child, committed without his knowledge or authority, express or implied. Such a case would have been upheld by the civil law, under the operation of which the child occupied the position almost of a slave, but has never been permitted *Page 560 wherever English law has shaped statutes and decisions. The rule generally followed in America is that the father is not liable in damages for the torts of his child, committed without his knowledge, consent, participation, or sanction, and not in the course of his employment of the child." It is further said: "A father is not liable for torts of his minor child solely upon the ground of that relationship. [Citing many authorities.] The common-law rule of the parent's nonliability for the torts of his minor children seems to be well recognized in England, although but two cases can be found in which the courts have been called upon to determine the question."
The Missouri court has held that it is not enough to make the father liable that he knew the child was heedless or vicious. See Baker v. Haldeman, 24 Mo. 219, 69 Am. Dec. 430; Paul v. Hummel, 43 Mo. 119, 97 Am. Dec. 381. The general subject is further dealt with in a case note to 74 Am. St. Rep., page 801; Meers v. McDowell, 110 Ky. 926, 62 S.W. 1013, 53 L.R.A. 789, 96 Am. St. Rep. 475.
We have no statute regulating the subject in Mississippi, and Mississippi is a common-law state. It will therefore be seen from an examination of the authorities that, in the absence of a statute, there is no liability under the common law, except as stated in the foregoing authorities. The majority seem to ignore the common law and follow the civil law, although the civil law has never been adopted in this respect in this state. Pothier, in his work on obligations, as quoted in the note of 10 L.R.A. (N.S.) page 933, says: "The doctrine that fathers and others shall be responsible for the acts of children under their care, which it was in their power to prevent, appears highly reasonable; but I am not aware of any case in which it is adopted in the English law." Thus both Pothier and the Texas Court of Civil Appeals *Page 561 state that there is no case holding the father liable for the act of his child, except as above stated. Therefore it seems to me that the majority opinion is merely personal opinion clothed with the solemnity of law. It is a dangerous thing to assume to mold the law to suit one's own opinion or what should be the law, or what might constitute justice in the absence of law. I do not think there is any basis of liability in the present case, and think that the judgment of the court below should be affirmed.