Where, in divorce the custody of the child is awarded to the mother, after her death the right of the fathei has been held to be restored ; In re Blackburn, 41 Mo. App. 622; People v. Erbert, 17 Abb. Pr. (N. Y.) 399; Schammel v. Schammel, 105 Cal. 258, 38 Pac. 729 ; but where the custody was given to the father who had obtained the divorce on the ground of adultery, the court refused to restore the child to the mother ; In re Steele, 107 Mo. App. 567, 81 S. W. 1182. Where the mother having custody of the child under the decree of divorce died, she could not, by will, deprive the father of his right to resume the custody ; McKinney v. Noble, 38 Tex. 195 ; In re Neff, 20 Wash. 652, 56 Pac. 383 ; contra, Wilkinson v. Deming, 80 Ill. 342, 22 Am. Rep. 192. Where the children are placed in the care of the husband, the court is not pre cluded from making an order giving the di vorced wife access to them; [1891] P. 124.
A petition of a benevolent society averring that a boy of seven years living with his par ent would become a cripple for life unless subjected to a surgical operation, and pray ing that he should be committed to the so ciety for that purpose, was refused; In re Tony Tuttendario, 21 Pa. Dist. R. 561.
Where there was an ante-nuptial agree ment that children should be trained in the religious faith of the mother and after her death two infant children were taken by relatives of the father and trained in his religious belief, and after four years the father died, and applications for guardian ship 'were made by relatives of both father and mother representing opposing beliefs, it was held that the relatives of the father should keep the children, and that notwith standing the agreement, the four year period of training with the father's relatives had created attachments it was not wise to break, the decision being put squarely upon the modern view that in questions of cus tody the welfare of the child is the para mount consideration; In re Luck, 7 Ohio N. P. 49.
The rights of the father, while his chil dren remain in his custody, are to have au thority over them, to enforce all his lawful commands, and to correct them with modera tion for disobedience; Johnson v. State, 2 Humphr. (Tenn.) 283, 36 Am. Dee. 322; and these rights, the better to accomplish purposes of their education, he may delegate to a tutor or instructor; 2. Kent 205. See AssAuvr; CORRECTION.
Rights of action. There is no common law liability of a parent for torts committed by an infant ; 8 C. B. N. S. 611; Chastain v. Johns, 120 Ga. 977, 48 S. E. 343, 66 L. It. A. 958; Tifft v. Tifft, 4 Denio (N. Y.) 175;
Shockley v. Shepherd, 9 Houst. (Del.) 270, 32 Atl. 173 ; unless there is proof of actual service or agency; Brehl v. Lingeman, 41 Mich. 711, 3 N. W. 199; Broadstreet v. Hall, 168 Ind. 192, 80 N. E. 145, 10 L. R. A. (N. S.) 933, 120 Am. St. Rep. 356; or there is shown to have been authority ; Ferguson v. Terry, 1 B. Mon. (Ky.) 96; or acquiescence; Cam eron v. Heister, 10 Ohio Dec. 651; Hower v. Ulrich, 156 Pa. 410, 27 Atl. 37 ; or ratifica tion; Lamb v. Davidson, 69 Mo. App. 107; which, however, is not established by a vol untary offer of compromise; Paulin v. How ser, 63 Ill. 312 ; or compensation ; Baker v. Morris, 33 Kan. 580, 7 Pac. 267.
Eut where a parent kept an automobile for the general use of his family, and plain tiff was injured by it while driven by his daughter for her own pleasure, it was held that the father was liable ; Birch v. Aber crombie (Wash.) 133 Pac. 1020. To the same effect, Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351; contra: Doran v. Thom sen, 76 N. J. L. 754, 71 AU. 296, 19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 677. See note in 12 Mich. L. Rev. 153, which states that this doctrine appears never to have been recognized outside of automobile cases.
If the relation of master and servant ex ists, the law of that relation must be ap plied; Dunks v. Grey, 3 Fed. 862; Andrus v. Howard, 36 Vt. 248, 84 Am. Dec. 680. No presumption of service or agency results from the relation of parent and child; Kum ba v. Gilham, 103 Wis. 312, 79 N. W. 325 ; 27 Ont. App. Rep. 468; contra, Hower v. Ul rich, 156 Pa. 410, 27 Atl. 37; Gerhardt v. Swaty, 57 Wis. 24, 14 N. W. 851; but prob ably this be considered a question for the jury ; Adams v. Swift, 172 Mass. 521, 52 N. E. 1068; Sacker v. Waddell, 98 Md. 43, 56 Atl. 399, 103 Am. St. Rep. 374. The par ent may be held liable if his negligence en tered into the tortious net of the child; Johnson v. Glidden, 11 S. D. 237, 76 N. W. 933, 74 Am. St. Rep. 795 ; but allowing the latter to use fire arms is not necessarily neg ligent; Palm v. Ivorson, 117 Ill. App. 535; nor is keeping them within his reach; Hag erty v. Powers, 66 Cal. 368, 5 Pac. 622, 56 Am. Rep. 101.
In some states, usually those where the civil law prevails, there are statutes making the parent liable for the torts of the child; Marionneaux v. Brugier, 35 La. Ann. 13; Coats v. Roberts, id. 891; Miller v. Meche, 111 La. 143, 35 South. 491; 30 Low. Can. Jur. 166. See as to parent's liability, 10 L. R. A. (N. S.) 933, note, and as to the liability of an infant for torts, see 57 L. R. A. 674, note.