Opinion
42439.
ARGUED NOVEMBER 9, 1966.
DECIDED JANUARY 20, 1967. REHEARING DENIED FEBRUARY 3, 1967.
Action for damages. Cobb Superior Court. Before Judge Ingram.
Powell, Goldstein, Frazer Murphy, Frank Love, Jr., K. W. Gilchrist, for appellant.
R. M. Reed, D. B. Howe, Perren Lane, Berl T. Tate, for appellees.
1. The allegations of the petition are sufficient to show a cause of action against the owner of a riding rotary lawn mower for the consequences of his act in knowingly permitting the son of the other owner, age 6, to operate the mower without adult supervision under conditions likely to produce injuries to a third person, as shown in this case by the operation in an area where rocks had washed or been thrown from the owner's driveway onto the property of the child's father, and were known to be present on the lawn, one of which the mower blades struck and propelled into the eye of another child, causing loss of sight.
2. Negligence may be alleged to show the injurious conduct of a child, age 6, in support of an action against another who bears responsibility on account of the conduct of the child, even though the child cannot be charged with contributory negligence to defeat or diminish recovery in an action in his behalf, or with negligence to support an action directed against him.
3. In an action against the owner of a riding rotary lawn mower, based on injuries caused while it was being used by a child, age 6, allegations to the effect that the mower was being used with the knowledge and permission of the owner are proper and essential.
4. Allegations showing that the owner of a rotary riding lawn mower was negligent in failing to anticipate that a child, age 6, might operate the mower in an area where rocks were present on adjoining property, and that the owner was negligent in permitting rocks to be deposited there from his driveway, raised issues for jury determination of actionable negligence.
5. The trial judge did not err in overruling general and special demurrers, including motions to strike parts of the petition, of the owner of the mower who was not the parent of the child operator.
ARGUED NOVEMBER 9, 1966 — DECIDED JANUARY 20, 1967 — REHEARING DENIED FEBRUARY 3, 1967 — CERT. APPLIED FOR.
Brennin Harrison, a minor acting by and through Louise Harrison, his mother, as next friend, brought this action in Cobb Superior Court against Thomas E. Miles and Bernard Phillips, to recover damages for the loss of his right eye. The petition shows that on March 18, 1963, defendant Miles had invited his sister, Louise Harrison, to visit his home. Upon arrival she parked her automobile in the driveway at the Miles home. Mark Phillips, age 6, the son of defendant Bernard Phillips, was operating a Jacobsen riding rotary lawn mower toward the Harrison vehicle parked on the adjacent driveway about six feet from the boundary, in an attempt to scare Brennin Harrison, age 8, who was trying to re-enter his mother's automobile. A number of rocks had been washed or thrown from the Miles' driveway onto the Phillips' property, and the rotary blades of the mower struck and threw one of these rocks, causing it to hit and injure plaintiff's right eye, which had to be removed and replaced by an artificial eye. Thomas E. Miles and Bernard Phillips are the joint owners of the mower, and it was being used without adult supervision by Mark Phillips, with the knowledge and permission of the owners. Specific acts of negligence against Miles are alleged, inter alia, in failing to prohibit the use of the mower by Mark Phillips because of his age and lack of experience, in permitting the use of a dangerous instrumentality by Mark Phillips without requiring close supervision, in failing to anticipate the negligence of Mark Phillips in operating the mower in the area where rocks were present on the Phillips' property, and in permitting rocks from his driveway to be washed or otherwise deposited on the Phillips' property, knowing the likelihood of injury by operation of the lawn mower in the area. Further acts of negligence are alleged in respect to Bernard Phillips, under the doctrine of respondeat superior as to his son, and in furnishing and allowing his son to operate the mower without adult supervision, and in failing to anticipate that his son would operate the mower in the area where rocks were present.
The case comes to this court on the appeal of Miles to the overruling of his general and special demurrers, including motions to strike parts of the petition.
1. "A person who intrusts another with a dangerous instrument or article, under such circumstances that he has reason to know that it is likely to produce injury, is liable for the natural consequences of his act." 65 CJS 949, Negligence, § 69. Succinctly stated, the petition in this case against defendant Miles is predicated on the theory that Miles is liable for the consequences of his act in knowingly permitting the use of his rotary lawn mower by another under foreseeable conditions whereby the mower while so being used was a dangerous instrumentality likely to produce injuries. This court has held that a petition against the owner of a truck for personal injuries sustained by its negligent operation is good against a general demurrer, where the owner knowingly permitted its operation by an inexperienced, reckless, and incompetent driver, age about 13, having reason to foresee that such a driver would operate the vehicle in a manner dangerous and menacing to persons using the streets. NuGrape Bottling Co. v. Knott, 47 Ga. App. 539 ( 171 S.E. 151). To the same effect, see Burks v. Green, 85 Ga. App. 327, 329 ( 69 S.E.2d 686), and cases cited therein. Actual and not constructive knowledge is essential. Hines v. Bell, 104 Ga. App. 76, 82 ( 120 S.E.2d 892). The Burks case, supra, at pp. 330, 331, recognized that although an automobile is not per se a dangerous instrumentality ( Fielder v. Davison, 139 Ga. 509 ( 77 S.E. 618)), it could become one in the hands of an incompetent operator, and that liability of the owner arises because of his negligence in permitting the use under such conditions, and, as was also true in the NuGrape case, supra, not by application of the doctrine of respondent superior to the relationship of the owner and operator. See 60 CJS 1057, Motor Vehicles, § 431. For application of these principles we see no distinction between an automobile and a "Jacobsen riding rotary lawn mower" described in the petition in the present case. Either may be a dangerous instrumentality when used by an incompetent operator, and the owner becomes liable for the consequences of his negligent act in knowingly permitting the use by such an operator. This situation distinguishes itself from that in John Deere Plow Co. v. Johnson, 98 Ga. App. 36 ( 105 S.E.2d 33), involving deficiencies in pleading a cause of action when an unknown child or children started an unattended tractor. The case of Graham v. Cleveland, 58 Ga. App. 810 ( 200 S.E. 184), cited and relied upon by defendant Miles as authority to reverse the ruling on general demurrer, for want of agency between the operator of the vehicle, a parking lot employee, and the owner, and lack of knowledge that the driver was incompetent, is inapplicable to the present case, except to the extent that the opinion (p. 815) recognizes owner liability for the operation of an automobile outside the doctrine of respondent superior when with actual knowledge the owner permits operation by an operator incompetent by reason of age, want of experience, physical or mental condition, or recklessness. As against general demurrer the allegations of the petition in the case sub judice are sufficient to show that Miles, as one of the owners of the Jacobsen riding rotary lawn mower, is liable for the consequences of his act in knowingly permitting the son, age 6, of the other owner, at least presumptively incompetent by reason of his age, to operate the mower under conditions likely to produce injury, that is, without adult supervision and with knowledge of conditions whereby the mower might propel rocks and cause injuries.
In reaching this result we have also considered the case of Herrin v. Lamar, 106 Ga. App. 91 ( 126 S.E.2d 454), an action on behalf of a minor against the parents of another minor for injuries caused when the minor plaintiff was run over and injured by a riding rotary lawn mower being operated by defendant's minor daughter, age 10, in the presence of and under instructions of the defendant wife. In that case this court determined that the allegations of negligence in permitting such a child of tender years to use the mower, knowing of the presence of the other child, and in furnishing such a mower to the daughter and permitting her to use it under the circumstances shown, where the daughter clearly failed to exercise ordinary care, supported a cause of action against the parents good against a general demurrer, under agency principles where it could not be said that the parents, with the wife acting as the agent of her husband, were in no way connected with, or did not ratify or gain any benefit from the activities of this daughter. While the agency aspect of that case supports the result reached, its absence does not warrant a different result in this case, for though it may be conceded that no agency relationship existed between the appellant in the present case and the other owner's minor child, the appellant's duty is primarily that of an owner exercising control of his personal property which could foreseeably become a dangerous instrumentality and cause injury when placed in the hands of an incompetent operator.
2. One paragraph of the petition alleges that Mark Phillips was operating the lawn mower negligently and without due regard for the safety of plaintiff. The trial judge overruled a special demurrer and motion to strike this allegation. Appellant contends that Mark Phillips, by reason of his age, was incapable of negligence, relying upon Riggs v. Watson, 77 Ga. App. 62 ( 47 S.E.2d 900), in which it was held that a child 5 years, 2 months, and 25 days old could not be charged with failure to exercise due care for his own safety or with contributory negligence. There the court was concerned with whether the acts of a child of such tender age could be used to defeat or diminish recovery in an action for the wrongful death of the child. To insist in the present case that the child, age 6, was incapable of negligence, only serves to emphasize that such a person is not a competent operator of a riding rotary lawn mower. As was pointed out in the Burks case, supra, p. 331, the injurious conduct of the operator resulting from his incompetency is a necessary factor in the liability of the owner. This is directly applicable to this case, irrespective of whether the injurious conduct which brought about the injury was deliberate, as alleged in the paragraph of the petition, or negligent as alleged in the paragraph under attack. The gist of the action against the owner is the owner's tortious conduct in knowingly furnishing the instrumentality as a means for the injurious conduct of the incompetent operator. E. g., in Davis v. Gavalas, 37 Ga. App. 242 ( 139 S.E. 577), the injured party actually alleged that the child, age 5, was incapable of negligence, and while the court determined that no action would lie against the child, his injurious conduct afforded the basis for determining that a cause of action was set out against the parent, who furnished the velocipede and knowingly permitted the child to ride on a public sidewalk at night, where, as reported in the case, the allegations, inter alia, were to the effect that he "used the vehicle and negligently collided with the plaintiff."
Code § 105-1806 prohibits infancy as a defense to a tort action, if the defendant has arrived at the age of discretion and accountability prescribed for criminal offenses. Code § 26-301 fixes criminal responsibility at age 14, or before that age if the child can distinguish between good and evil. Code § 26-302 bars conviction for a crime or misdemeanor of a child under the age of 10 years, "whose tender age renders it improbable that he should be impressed with a proper sense of moral obligation, or be possessed of sufficient capacity deliberately to have committed the offense." The courts of this state interpret Code § 26-302 to mean that a child below age 10 is totally incapable of committing any criminal offense. See Ford v. State, 100 Ga. 63 (1) ( 25 S.E. 845), involving a child of doubtful age; Mallard v. State, 28 Ga. App. 570 (1) ( 112 S.E. 296), where the record but not the opinion discloses evidence that the child was between 10 and 14; Clemmons v. State, 66 Ga. App. 16, 19 ( 16 S.E.2d 883), where the child was probably 13; and Canton Cotton Mills v. Edwards, 120 Ga. 447 (1) ( 47 S.E. 937).
None of the above cases, however, involves a direct holding under facts positively establishing the age of the child as below 10, but there are numerous holdings on the necessity of evidence to establish capacity for a child between 10 and 14, in order to hold the child criminally responsible. See cases annotated under Code § 26-301, catchword "Child."
Code § 105-204 defines due care for a child of tender years in terms of the capacity, mental or physical, for exercising such care in the actual circumstances of the occasion and situation under investigation, without specifying any arbitrary age limitations. Notwithstanding those judicial determinations absolutely barring criminal responsibility below age 10, supra, based on Code § 26-302, and the equation of tort responsibility to criminal responsibility, based on Code § 105-1806, the courts of this state in general have held, consonant with the provisions of Code § 105-204, that the capacity of a child, age 7 or above, to appreciate danger and exercise some degree of care, is a matter of fact for jury determination. Simmons v. Atlanta W. P. R. Co., 46 Ga. App. 93 (5d) ( 166 S.E. 666) and cases cited. Faith v. Massengill, 104 Ga. App. 348, 352 ( 121 S.E.2d 657), and cases cited. The courts have consistently held that a child, age 6 and under, is incapable as a matter of law of contributory negligence. Faith v. Massengill, supra, and cases cited.
We do not consider these holdings as barring a further determination that the conduct of a child of tender years, age 6 in this case, may not be termed negligent, in the sense of denoting a course of conduct for which another is being charged with liability, where the other person was under a duty to foresee such conduct and injury resulting therefrom. The Davis case, supra, clearly recognized that the conduct of a child, age 5, could be so termed.
3. Various special demurrers and motions to strike portions of the original petition and the petitions as amended are directed to allegations that the lawn mower was being used by Mark Phillips with the knowledge and permission of defendant Miles, without any allegation showing any right or duty of Miles to restrict the use of the mower by Mark Phillips. Miles, as an alleged co-owner, had the right and duty to control the use of the mower by a third party, in the absence of any allegations disclosing a relationship whereby he had relinquished such right and duty exclusively to the other owner or another person. The duty, as an owner, to control an instrumentality which foreseeably could produce injuries in the hands of an incompetent operator is paramount, and the existence of a parent-child relationship between the other owner and the child operator, which may involve additional duties, does not extinguish this duty, nor does it interfere with the parent-child relationship, for it involves direct control of the chattel and not the child. The contentions of the appellant in this respect are without merit.
4. Other special demurrers and motions to strike are directed to allegations of negligence in failing to anticipate that Mark Phillips would operate the lawn mower where rocks had washed onto the Phillips' lawn from the Miles' driveway, and to allegations of negligence in permitting rocks to be washed or otherwise deposited from his driveway on the Phillips' property. It is contended that such allegations disclose acts which, from the standpoint of negligence, are beyond the realm of foreseeability, particularly in that one paragraph of the petition shows that the rocks may have been thrown onto the yard by persons unknown. Regardless of how the rocks were deposited on the Phillips' lawn, the petition shows that Miles knew of the presence of the rocks on the lawn, and knew or permitted Mark Phillips to operate the mower. "The most common test of negligence is whether the consequences of the alleged wrongful act are reasonably to be foreseen as injurious to others coming within range of such acts, and what is reasonably to be foreseen is generally a question for the jury. . . The question for the jury is whether danger should have been recognized by common experience, or by the special experience of the alleged wrongdoer, or by a person of ordinary prudence and foresight." Thomas v. Williams, 105 Ga. App. 321, 326 ( 124 S.E.2d 409), and cases cited therein. "The rule well affirmed by the authorities is that under the law a person is required to anticipate or foresee and guard against what usually happens or is likely to happen; but this rule does not require him to anticipate or foresee and provide against that which is unusual and not likely to happen, or, in other words, that which is only remotely and slightly probable. The general test in such cases is not whether the injurious result or consequence was possible, but whether it was probable; that is, likely to occur according to the usual experience of persons. A wrongdoer cannot be held responsible according to occasional experience, but only for a result of consequence which is probable according to the ordinary and usual experience of mankind." Whitaker v. Jones c. Co., 69 Ga. App. 711, 716 ( 26 S.E.2d 545); Southern Mills v. Newton, 91 Ga. App. 738, 740 ( 87 S.E.2d 109). These principles were clearly recognized in Taylor v. Atlanta Gas Light Co., 93 Ga. App. 766 ( 92 S.E.2d 709), cited and relied on by appellant. There, although the manner of injury was substantially the same as in the case here, in that a lawn mower blade propelled a piece of pipe, the court was of the opinion that the allegations of the petition failed to show that the defendant gas company whose employees allegedly left the pipe on the lawn should reasonably have anticipated injury, or that the pleaded facts disclosed any duty to the plaintiff, under circumstances where there was an intervening cause over which defendant had no control. We think that the alleged conduct of Miles in failing to anticipate that Mark Phillips would operate the mower where rocks had washed onto the Phillips' lawn, and in permitting such rocks to be washed or otherwise deposited on the lawn, knowing that operation of the lawn mower in the area by a child of tender years might cause injury, are sufficient to raise issues for jury determination of actionable negligence.
5. The trial judge did not err in overruling Miles' general and special demurrers to the petition, including motions to strike parts of the petition.
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.