The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1891-07-20

DEMO, ITS. Burnham VS.. Holt, IA
n. H., 367. go
In Scott VS.. Watson, 46 Me-, 5oz,
it was held that an action of trespass
may be maintained against an IN
FAINT, although he did the act oy
command of his father.
Cases exist where father mas
been held liable for the act or MS
son as his servant when the father is
present and directs the act.
Where the tortious act Is done Dy
force, all authorities agree that the
age of the infant is unlmportant.
Baxter VS.. Bush, 20 VT, 400. Scott
vs.. Watson, 46 Me-, 1852.
It is clear from the above autnorl-
ties that in Great Britain and the
United States where the common
law prevails the present action could
not be maintained.
And we have in this kingdom
created by statute to which public
attention has not been drawn, the
responsibility of father in damages
for the I" trespass, injury and tortl-
GUS acts of his infant child" which
is totally at variance with the prln-
ciples Of the common law. And the
responsibility is broad and unquali-
fed, without the limitation common
in the countries where the civil law
prevails, to such acts of the infant as
are committed in the presence of the
parent and when he could have pre-
vented their commission.
/ have no hesitation in saying that
this principle is inconsistent with
the general principles of the common
law and the system of Jurisprudence
which exists here. But it is the law
of the land and must be enforced.
The two sections must be read
together, as all laws, in pari
materta should be Civil Code,
Section LIZ. And the true mean
ing to be derived from them is
that the father is responsible in
damages for the tortious acts of his
child under majority, for the words
''trespass and injury" in Section 1125
for which the father is responsible
imply wrong doing or tort, which
is made clear by Section 1888 max
ing father responsible for the
''tortlous acts" committed by his
children under majority.
By the Penal Code, Chap. ~,
Sec. 1, an infant uuder seven years
of age is incompetent to commit an
ofense. He is not doll capas. By
Section 2:
Between the ages of seven and
| fourteen years. competency to COM
NIT any alleged offense, and the fact
that the accused acted with intelli-
gence and understanding of the ma
ture of the act, shall be determined
by the evidence of the case, without
any general presumption for or
against THE same"
The child in the present case was
just two years old. II a child of
such tender years is not to be deemed
capable of committing any penal
offense, it is difficult to see how it
could at that age commit tortious
act. But if the limit of responsible
ity for penal offenses is not to be ap-
piled to tortious acts for which dam
ages can be claimed, I think the
reasoning is sound that requires that
the same rule should be applied to
the responsibility of father for the
tortious acts of his child as applies
to the same acts of the infant in
those jurisdictions where the infant
is itself responsible. At the tender
age at which the child in the case
before me was-a mere baby-not
emancipated from childish instincts
1T would be monstrous to hold it
capable of committing a tort. Judge
Cooley Up. 104, on Torts) says: ''The
absurdity of suit against child
three years old would be sufficiently
manifest" A child of two years can
not be held morally responsible for
the consequences of Intentional &C.
tlon, and if not morally, then not
legally responsible, and it follows
that the statute does not make the
father responsible for such an act,
for 1t lacks the element of wrong and
should be treated as an unavoid
able accident" For the above rea-
sons l find in favor Of the defendant.
q. L. Carter for plaintiff; W. o.
Smith for defendant.