Summary
In Faith v. Massengill, 104 Ga. App. 348, supra, we rejected the theory that a different test should be applied where the child was a plaintiff (contributory negligence) and when he was a defendant (primary negligence).
Summary of this case from Brady v. LewlessOpinion
38990.
DECIDED SEPTEMBER 6, 1961.
Action for damages. Whitfield Superior Court. Before Judge Davis.
Hardin, McCamy, Minor Vining, Carlton McCamy, for plaintiffs in error.
Mitchell Mitchell, D. W. Mitchell, Jr., contra.
1. ( a) Under the allegations of the instant petition a cause of action was set forth against the infant defendant, an eight year old child, it being a question for the jury's determination as to whether this defendant was of an age capable of exercising some degree of care, what degree of care was required of him, and if he violated that degree of care in respect to his conduct in the matter under investigation.
( b) The alleged violation of an ordinance prohibiting the discharge of air rifles or "BB" guns within the city limits of Dalton, Georgia, by the eight year old defendant did not constitute an act of negligence per se by said defendant.
2. ( a) The instant petition, which alleged that the father of the eight year old child was negligent in furnishing an air rifle to his son who was inexperienced in handling weapons of such character and in making the gun accessible to the child and in allowing him to shoot it in a residential section unsupervised by the father or any other mature person, stated a cause of action against the father for his original negligence in procuring and furnishing to a minor of eight years of age this instrumentality.
( b) The alleged violation of an ordinance of the city of Dalton, Georgia, making it unlawful for any parent having custody of any child under twelve years of age to permit such child to have in his possession any air rifle or "BB" gun within the corporate limits of said municipality constituted an act of negligence per se by the defendant father.
3. The instant petition did not state a cause of action against the defendant mother, and the trial judge erred in overruling the demurrers of this defendant to the petition.
DECIDED SEPTEMBER 6, 1961.
This is a suit for damages brought by Mrs. Ruth Massengill, as plaintiff, against Harold E. Faith and Mrs. Thelma C. Faith and Richard Lamar Faith, their minor child of the age of eight years, as defendants, seeking the recovery of damages on account of an injury sustained by Mrs. Massengill as a result of being struck in the eye with a "BB" pellet fired from an airrifle by the minor, Richard L. Faith, while playing upon the premises of the parents. It is alleged by the plaintiff that on the morning of February 14, 1959, she decided to visit the mother and defendant, Mrs. Faith, for the purpose of having the defendant assist her in rolling up her hair; that as she reached the yard of the defendant Faith, there were several young children, including the minor son, Ricky Faith, playing in the yard of the defendants, and that Ricky Faith had in his possession an air rifle which discharges or propels pellets, one of which is alleged to have struck plaintiff in the eye; that as the plaintiff was walking across the yard to the home of the defendants, she was suddenly struck in the right eye by a pellet from the airrifle, inflicting the injury sued upon. The plaintiff alleged that the air rifle is an instrument which, if not properly used, is a dangerous weapon likely to produce serious injury to human beings. The plaintiff alleges specifically that the defendant, Ricky Faith, was not discharging the gun toward plaintiff with any intention of striking her, but was firing the gun at an object (matches) lying on a concrete sidewalk in an attempt to strike and light the matches and that the pellet which struck the plaintiff ricocheted off the sidewalk into the air, striking the plaintiff in the eye.
Negligence is alleged against the minor, eight years of age, in having possession of the gun and firing the same indiscriminately in a thickly populated residential section, when he was inexperienced and untrained in the firing of such a rifle, and in firing the same at matches lying on a concrete surface when he knew or should have known that the pellets would likely ricochet from the sidewalk in all directions; in firing the gun against the concrete surface causing the pellets to ricochet when he knew or should have known of the presence of plaintiff; and in failing to observe the plaintiff as she approached his home and in firing the rifle before she had reached a place of safety.
The plaintiff alleges the following acts of negligence against the father, Harold E. Faith: In furnishing the air rifle, which is a dangerous instrumentality, to a minor son inexperienced in handling rifles of such character when the father knew or should have known that the son would likely injure or damage some innocent bystander in discharging the gun in the indiscriminate manner alleged; in making the gun accessible to the child by leaving the same in the room with toys when defendant by the exercise or ordinary care should have known that the child would likely take the gun and use the same in the manner referred to; in allowing him to shoot the same in a residential section unsupervised by the father or any other mature person; in failing to place the gun in a place inaccessible to the minor son and allowing the minor son, only eight years of age, to use and fire the gun when he knew that the son was inexperienced in the handling and shooting of firearms of the type alleged.
Negligence is alleged against the mother, Mrs. Thelma Faith, in the following particulars: In allowing the son to fire the gun in a residential section without supervision; remaining in the house and leaving her son unsupervised while in the yard, with knowledge that he would likely obtain possession of the gun and discharge it indiscriminately; in failing to determine that the son actually had possession of the gun and was firing the same in the yard of the defendant's home, when the mother was present and could have easily supervised and controlled the activities of said child, had she known of the activities; in permitting the gun to be easily accessible and in failing to keep it in a place of safety and in allowing and permitting the son, only eight years of age, to use and fire the gun.
In an amendment to the petition it was alleged that the defendant, Richard L. Faith, was guilty of negligence as a matter of law in that he violated a city ordinance of Dalton, Georgia, prohibiting the discharge of air rifles and "BB" guns within the city limits of said municipality, a copy of said ordinance being attached to the petition. In a second amendment to the petition, it was alleged that the parents were guilty of negligence per se in violation of a city ordinance making it unlawful for any parent having custody of any child under twelve years of age to permit such child to have in his possession any airrifle or "BB" gun within the corporate limits of Dalton, Georgia.
The defendants each demurred to plaintiff's petition, generally and specially.
The trial judge overruled the demurrers and the case is before this court on exception to the court's rulings on the demurrers.
1. (a) It is the contention of counsel for the minor defendant that as a matter of law an eight year old child cannot be guilty of actionable, primary negligence; and that, accordingly, the plaintiff's petition as to this defendant failed to state a cause of action. Counsel, however, has cited no cases in support of this contention; and we have been unable to find any in the reported cases of the appellate courts of this State or of other jurisdictions.
Both this court and the Supreme Court, on numerous occasions, have decided the question of whether or not a child of tender years is chargeable with contributory negligence in avoiding consequences of another's negligence. In McLarty v. Southern Ry. Co., 127 Ga. 161, 162 ( 56 S.E. 297), it was held that: "The care and diligence required of an infant of tender years is not fixed by any invariable rule with reference to the age of the infant or otherwise. It depends upon the capacity of the particular infant, taking into consideration his age as well as other matters. These are all questions for determination by the jury. See 3 Michie's Dig. 559 (aa), 561 (cc) and cit.; Manchester Mfg. Co. v. Polk, 115 Ga. 542, 545. In each case it is to be determined whether an infant of the age and capacity of the one in question would, under the circumstances of the case, be chargeable with negligence on account of his conduct at the time of the transaction under investigation."
Courts of this State have consistently held, however, that a child of six years of age and under could not as a matter of law be guilty of contributory negligence. Red Top Cab Co. v. Cochran, 100 Ga. App. 707 ( 112 S.E.2d 229); Riggs v. Watson, 77 Ga. App. 62 ( 47 S.E.2d 900) (child of age, 5 years, 2 months, 25 days); Anthony v. Dutton, 73 Ga. App. 389 ( 36 S.E.2d 836) (4 1/2 years); Crawford v. Southern Ry. Co., 106 Ga. 870 ( 33 S.E. 826) (4 1/2 years); Christian v. Smith, 78 Ga. App. 603 ( 51 S.E.2d 857) (5 years). The courts have also consistently held that as to a child over seven years old it is a question for the jury. Mayor c. of Madison v. Thomas, 130 Ga. 153 (3) ( 60 S.E. 461) (7 1/2 year old child); Huckabee v. Grace, 48 Ga. App. 621 ( 173 S.E. 744) (8 year old child); Savannah, Fla. c. Ry. Co. v. Smith, 93 Ga. 742 ( 21 S.E. 157) (9 year old child). As to a child seven years of age there exists some conflict of authority. In Harris v. Combs, 96 Ga. App. 638, 643 ( 101 S.E.2d 144), it was held that a seven year old child was too young to be guilty of contributory negligence. However, in the earlier cases of Cohn v. Buhler, 30 Ga. App. 14 ( 116 S.E. 864); Simmons v. Atlanta W. P. R. Co., 46 Ga. App. 93 ( 166 S.E. 666); and Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752 ( 92 S.E.2d 720), it was held that a jury question as to the due care to be exercised by a seven year old child was presented.
Thus, it seems well established in this State that it would be a question for the jury's determination as to whether an eight year old child, the age of the present defendant, could be guilty of contributory negligence in regard to the transaction under investigation. It is contended by counsel for the defendant that it might be argued with logic that because of the early development of the instinct for self preservation a child becomes capable of contributory negligence before he has the ability to make the more sound judgment as to the likelihood that another will be harmed by his conduct. It appears, however, that the courts of other jurisdictions have taken the view that the same tests should be applied in determining both primary and contributory negligence. See Annotations, 67 A.L.R. 2d 570; 174 A.L.R. 1170; 173 A.L.R. 890; 73 A.L.R. 1277; 27 Am. Jur. 813, Infants, § 91.
In the absence of any authority in this jurisdiction with reference to the question of the primary negligence of a child of tender years and being unable to ascertain any sound or legally justifiable reasons for applying a different standard with respect to primary negligence than that applied to contributory negligence, we do not think that it can be said that a child of eight years of age is as a matter of law incapable of being guilty of primary negligence. Accordingly, the instant petition stated a cause of action against the infant defendant, it being a question for the jury to determine whether this defendant was of an age capable of exercising some degree of care, what degree of care was required of him, and if he violated that degree of care in respect to his conduct in the matter under investigation. See Code § 105-204.
(b) Since under Code § 26-302 an infant under the age of 10 years shall not be considered or found guilty of any crime or misdemeanor, we do not think the violation of a penal ordinance of the city of Dalton, Georgia, prohibiting the discharge of air rifles within the vicinity of said municipality by this eight year old defendant, can be considered as an act of negligence per se. Accordingly, the trial judge erred in overruling the demurrers to paragraph 48 of the petition and in refusing to strike the same from the amended petition.
2. (a) The instant petition which alleges that the defendant Harold E. Faith was negligent in furnishing the air rifle to his son who was inexperienced in handling weapons of such character and in making the gun accessible to the child and in allowing him to shoot it in a residential section unsupervised by the father or any other mature person, clearly stated a cause of action against the father for his original negligence in procuring and furnishing to a minor of eight years of age this instrumentality. Accordingly, the trial court did not err in overruling the general demurrer of this defendant.
(b) Nor did the trial court err in overruling the demurrer to paragraph 49 of the petition as applied to this defendant. This paragraph set forth an ordinance of the city of Dalton making it unlawful for any parent having custody of any child under 12 years of age to permit such child to have in his possession any air-rifle or "BB" gun within the corporate limits of said municipality, and alleged that the violation of same was negligence per se. We think it clear that this ordinance was enacted for the purpose of protecting the person and property of the inhabitants of that community and that accordingly a violation of same may constitute negligence per se. Huckabee v. Grace, 48 Ga. App. 621, supra.
3. Under Code § 49-102 the father, if alive, is the natural guardian of his minor child and as such is entitled to its custody and management. Taylor v. Jeter, 33 Ga. 195 ( 81 AD 202); Lamar v. Harris, 117 Ga. 993 ( 44 S.E. 866); Williman v. Williman, 138 Ga. 188 ( 74 S.E. 1077). Under the allegations of the instant petition it was the father who procured the "BB" gun and furnished it to his minor child for his use. Whatever moral right the mother may have had to voice the claims of motherhood and protest this action, it is our opinion that there was no legal duty devolving upon her, generally, to oppose her husband's will and prevent the use of this gun by her son. The proper regard for the sanctity of the parental relation demands this finding. The mother is not chargeable with the negligence of the father merely because of the conjugal relation existing between them. Nor is the mother negligent in simply failing to keep a constant and unremitting watch and restraint over her children. See Atlanta Charlotte Airline Ry. Co. v. Gravitt, 93 Ga. 369 ( 20 S.E. 550, 26 LRA 553, 44 ASR 145).
Accordingly, it is our opinion that neither the allegations of the petition which aver generally that the mother was negligent in permitting the use of the gun and its easy accessibility to her son nor the allegations which contend that the mother was negligent in remaining in the house and leaving her son unsupervised while in the yard and in failing to determine that the son had possession of the gun and was firing it, in the absence of allegations of knowledge of the actual circumstances on the part of the mother, stated a cause of action against the mother. Nor do we think that the ordinance enumerated in division 2 had application to the mother since the father was the parent having the custody and control over the minor son.
Accordingly, the trial judge erred in overruling the demurrers of this defendant to the petition.
Judgment affirmed in part and reversed in part. Townsend, P.J., and Frankum, J., concur.