Summary
In Skelton, the defendants were grocery store owners who provided a pistol to their 14-year-old son who thereafter discharged the pistol and killed a customer.
Summary of this case from Schernekau v. McNabbOpinion
32753.
DECIDED FEBRUARY 17, 1950.
Damages; from DeKalb Superior Court — Judge Guess. October 21, 1949.
William S. Shelfer, for plaintiffs in error.
C. D. Stewart, Douglas C. Lauderdale Jr., contra.
1. The word "caused" more generally conveys the meaning of intention and affirmative action.
2. The intervention of an independent criminal act of a third person not reasonably to be foreseen by defendants bars recovery on alleged negligence of defendants.
3. The mere relationship of parent and child will not render a parent liable for the independent tort of a child.
4. The petition did not show relationship of master-servant or of agency or the violation of city ordinances so as to render defendants liable for the act of a third person.
DECIDED FEBRUARY 17, 1950.
Diana Gail Gambrell and David Lee Gambrell sued W. C. Skelton Sr., Mrs. Lillian E. Skelton and W. C. Skelton Jr. for the homicide of the petitioners' mother and wife. That part of the petition necessary for consideration here is as follows: "2. That this suit is brought for the malicious homicide of petitioners' mother, and wife, Mrs. Jimmie Lou Gambrell . . 3. Petitioners' mother and wife died as the result of being shot by the defendant W. C. Skelton Jr., on the 19th day of July, 1946. . . 6. That on the 19th day of July, 1946, petitioners' said mother and wife was in good health, and that she entered a grocery store located at 143 Whitefoord Avenue, S.E., Atlanta, DeKalb County, Georgia for the purpose of purchasing some groceries. 7. That said grocery store was owned and operated by the defendants named herein. 8. That after petitioners' said mother and wife had made her purchases, the defendant, W. C. Skelton Jr. took out from under the counter a pistol or revolver and carelessly, recklessly and maliciously pointed said pistol or revolver at petitioners' mother and wife. 9. That petitioners' mother and wife admonished said defendant W. C. Skelton Jr. to put away said pistol or revolver as same was dangerous. 10. That defendant W. C. Skelton Jr. failed and refused to put said pistol or revolver away as requested, but on the other hand he pointed same at petitioners' mother and wife and caused same to be discharged or fired. 11. That the bullet which was discharged from said pistol or revolver entered the body of petitioners' mother and wife near her navel and completely penetrated her body. 12. That the bullet in passing through the body of petitioners' mother and wife wounded her so severely that she died on July 27, 1946. 13. That said pistol was a dangerous instrumentality and that the defendants, W. C. Skelton and Mrs. Lillian E. Skelton, the parents of W. C. Skelton Jr., were negligent in furnishing said dangerous instrument to their said son. 14. That the said W. C. Skelton Jr. was 14 years of age at the time he fired the shot that killed petitioners' mother and wife, that he was capable of committing the acts of negligence complained of in this petition; that he well knew that the .38 caliber pistol or revolver was a dangerous instrumentality, and one likely to produce death. 15. That said defendant, W. C. Skelton Jr., was known by his parents and others to be of a reckless and irresponsible disposition. 16. That neighbors in the vicinity in which petitioners' mother and wife was shot had complained to the defendants W. C. Skelton Sr. and Mrs. Lillian E. Skelton about the reckless and wanton manner that the defendant W. C. Skelton Jr. had been brandishing said pistol and revolver. 17. Petitioners allege that the defendants W. C. Skelton Sr. and Mrs. Lillian E. Skelton were negligent in the following particulars: (a) In furnishing said defendant W. C. Skelton a pistol or revolver with actual knowledge of his reckless and wanton disposition. (b) In providing cartridges or shells for said revolver while same was in the possession of the defendant W. C. Skelton Jr. (c) In allowing the said W. C. Skelton Jr. to carry said pistol or revolver into the store at 143 Whitefoord Avenue, S.E., knowing that petitioners' mother and wife and others frequented said store as customers. (d) In failing to admonish the defendant W. C. Skelton Jr. about the reckless and wanton manner he was handling the pistol or revolver. 18. That the defendant W. C. Skelton Jr. was negligent in the following particulars: (a) In the manner in which he handled the pistol or revolver. (b) In causing the revolver to be fired when pointed towards petitioners' mother and wife. (c) In shooting petitioners' mother and wife as heretofore set out. (d) In committing the acts herein set out which caused the death of petitioners' mother and wife." The defendants demurred to the petition on the grounds: (1) that the petition set out no cause of action; (2) because there was a misjoinder of causes of action in that the action against the defendant W. C. Skelton Jr. was based upon his alleged wilful shooting of Mrs. Jimmie Lou Gambrell, whereas the cause of action against W. C. Skelton Sr. and Mrs. Lillian E. Gambrell was based upon alleged negligence in furnishing a pistol to W. C. Skelton Jr.; (3) that par. 13 should have been stricken because the allegation therein was a conclusion not supported by sufficient allegations of fact; (4) that par. 15 should have been stricken because the allegations thereof were vague and indefinite and were conclusions, that said paragraph did no show how or in what manner said W. C. Skelton Jr. had a reckless and irresponsible disposition; (5) that par. 16 should have been stricken because the allegations thereof did not constitute issuable facts and were prejudicial to the defendants. The trial court overruled grounds 1 and 2 and sustained grounds 3, 4 and 5 of the demurrer. To this ruling the defendants excepted pendente lite. The plaintiffs then filed the following amendment: "1. By adding to paragraph 13 of the original petition the following: `That said pistol was a .38 caliber Colt Special, and of such size and caliber as to produce death when fired; that said pistol was loaded with one or more .38 caliber shells or cartridges. That W. C. Skelton Sr. and Mrs. Lillian E. Skelton knew the potential danger of said pistol, and that they knew the reckless and wanton disposition of their son, W. C. Skelton Jr. 2. By adding to paragraph 15 the following: `That just two days prior to the date on which petitioners' mother and wife was fatally shot, the said W. C. Skelton Jr. did brandish said pistol on other customers in violation of the laws of this State. That all of these facts were well known to W. C. Skelton Sr. and Mrs. Lillian E. Skelton.' 3. By adding to paragraph 16 the following: `That the names of the neighbors are unknown to petitioners, but the names of said neighbors will be revealed during the trial of this cause.'" The defendants, after renewing their original demurrer, demurred to paragraph 1 of the amendment because the allegation that the defendants "knew the reckless and wanton disposition of their son, W. C. Skelton Jr." was a conclusion unsupported by sufficient allegation of issuable facts; to paragraph 2 and paragraph 3 of the amendment because the allegations thereof were irrelevant and immaterial and did not constitute issuable facts and were prejudicial to the defendants. The plaintiffs further amended by adding to the specific acts of negligence on the part of defendants W. C. Skelton Sr. and Mrs. Lillian E. Skelton, the violation of two Atlanta city ordinances, one pertaining to permits to deal in pistols and one pertaining to permits to purchase pistols. The trial court overruled the renewed demurrers, and the defendants except.
In their petition the plaintiffs allege that the defendant W. C. Skelton Jr. "caused" the pistol or revolver to be discharged or fired, and that he was negligent "in causing the revolver to be fired when pointed toward petitioners' mother and wife." While the words "caused" and "causing" are duplicitous in their meaning, it is more generally accepted that they convey the meaning of intention and affirmative action. 14 C.J.S., pp. 51-53. Construing the plaintiffs' petition most strongly against them, as we are required to do, it shows that the defendant W. C. Skelton Jr. wilfully and intentionally shot the plaintiffs' mother and wife. This view of the petition is strengthened by the plaintiffs' allegation that the suit was for the malicious homicide of the plaintiffs' mother and wife. Thus the petition showed that the alleged original acts of negligence of the defendants W. C. Skelton Sr. and Mrs. Lillian E. Skelton were broken by the intervening criminal act of W. C. Skelton Jr. In a suit for damages, where it appears upon the face of the plaintiffs' petition that there intervened between the alleged negligence of the defendant and the damage sustained by the plaintiff, the independent criminal act of a third person which could not have been reasonably foreseen by the defendant, and which was the direct and proximate cause of the damage, the petition should be dismissed on general demurrer. Andrews Company v. Kinsel, 114 Ga. 390 ( 40 S.E. 300); Pinnell v. Yellow Cab Company, 77 Ga. App. 73 ( 47 S.E.2d 774). The mere relationship of parent and child will not render the parent liable for an independent tort of the child. Such liability rests upon the same grounds upon which the parent will be responsible for the negligence or wrong of any other person. Hulsey v. Hightower, 44 Ga. App. 455 ( 161 S.E. 664). The Hulsey case, supra, is somewhat analogous to the present case. There the petition alleged that the defendant was negligent in furnishing his 15-year-old son a long-bladed knife with which the son intentionally inflicted a very serious injury upon the plaintiff. This court, in holding that the general demurrer to the petition should have been sustained, said: "The son had attained the age of accountability under the criminal law (Penal Code of 1910, § 33), and the petition does not go so far as to show that he was possessed of a positively vicious or criminal disposition, and the presumption was that he would not commit the criminal offense of stabbing, or of assault with intent to murder, as charged in the petition. The petition fails to show that the father should have anticipated such conduct upon his son's part, and therefore the act of the father in furnishing the knife could not be said to be the proximate cause of the plaintiff's injuries. The malicious and intentional act of the son was an occurrence which did not flow in the usual and ordinary course of events from a disposition which was merely reckless and indifferent, and it does not appear from the allegations that the father was forewarned and should have anticipated that such a thing would probably happen in consequence of his own act of furnishing the knife to his son." We think the plaintiffs' allegation that the defendants W. C. Skelton Sr. and Mrs. Lillian E. Skelton knew that W. C. Skelton Jr. had pointed the pistol at other customers just a few days prior to the shooting, was not sufficient to show notice on their part that W. C. Skelton Jr. would commit the criminal offense of murder or manslaughter. Nor do we think the mere allegation "that said store was owned and operated by the defendants named herein," was sufficient to show that the son was acting as servant or agent of the parents and within the scope of their employment. The allegation that the defendants W. C. Skelton Sr. and Mrs. Lillian E. Skelton were negligent in violating the Atlanta city ordinance pertaining to permits to deal in pistols, which we do not think relevant, and the ordinance pertaining to permits to purchase pistols, alone are not sufficient to bring the case within the purview of the holding in Spires v. Goldberg, 26 Ga. App. 530 ( 106 S.E. 585).
The petition did state a good cause of action against the defendant W. C. Skelton Jr., but not against the defendants W. C. Skelton Sr. and Mrs. Lillian E. Skelton.
The trial court erred in overruling the general demurrer of the defendants, W. C. Skelton Sr. and Mrs. Lillian E. Skelton.
Judgment affirmed in part and reversed in part. Sutton, C. J., and Worrill, J., concur.