66 S.E. 128 | N.C. | 1909
The plaintiff sued the defendant to recover damages for injuries received by him while on business in the store owned by the female (300) defendant, B. Stadiem, from a pistol-shot wound inflicted by the twelve-year-old son and an employee of the defendants, while carelessly handling the pistol. The defendant denied all the allegations of the complaint, and the matters at issue were presented to the jury in two issues, to wit:
1. Was the plaintiff injured by the negligence of the defendant, as alleged?
2. What amount of damages, if any, is the plaintiff entitled to recover?
The jury having responded to the first issue, Yes, and to the second issue, $350, judgment was rendered against the defendants, from which they appealed to this Court.
If the feme defendant, Bettie Stadiem, is answerable to the plaintiff for the damages resulting from the tort alleged, then the defendant D. Stadiem, her husband, living with her at the time, is jointly liable. Revisal, sec. 2105; Roberts v. Lisenbee,
The complaint, however, proceeds upon a twofold theory, and evidence was produced at the trial to support it, to wit: 1. That the boy, Moses Stadiem, was the servant and employee of the defendant, doing work in the store as clerk, and the injury to plaintiff was caused by the negligent and careless act of this servant, while about his master's business and while doing an act he was directed to do. 2. That the defendant, as a part of her business, conducted a pawnbroker's shop and received in pawn various articles, among them pistols, which (301) she also carried in stock for sale, and that these dangerous weapons were carelessly and negligently permitted to lie on the counters and in the windows of the store, within reach of a boy of the size of Moses Stadiem, and that he "fooled with them." The immediate circumstances of the injury are thus described by the plaintiff: "I went into the store to pawn my watch. I was to receive $7. The man went to get the money for me and laid it down on the counter, and just as I was in the act of picking it up a pistol went off; the ball hit the counter, just in front of me, struck my little finger, went through left thumb, went into my right hand and lodged at the base of my third finger, where it was immediately afterwards cut out. I turned to see where the shot came from, and there was a boy standing in front of me with the smoking pistol in his hand. At the time I was shot, Stadiem grabbed the boy and told him, `I have been telling you about fooling with pistols.'" The plaintiff further testified that the boy had been waiting on customers and asked his father what he was going to let him have on the watch. Another witness *294
for the plaintiff testified that he had seen the boy in the store, selling goods and handling them and behind the counter, and that there were a lot of guns and pistols lying on the counters and in the windows, so that anybody that wanted to could handle them. The boy, Moses, testified that a man came to pawn a pistol; then plaintiff came in. "Before loaning the money, we wanted to see whether it was all right. I snapped it to see," and it fired. Phelps, another clerk in the store, stated that while he was making out the pawn ticket he told the boy to bring the pistol to him, and while he was bringing it, it fired; that the man who pawned it said it was not loaded; that he did not examine it, but laid it on the counter and was waiting on plaintiff. The evidence produced at the trial, as to the employment of the boy to aid in the work of the store as clerk, was sufficient to carry the case to the jury, and it was for them to determine the fact. Wood on Master and Servant, p. 584; Perry v. Ford,
Passing the sufficiency of the evidence to establish the additional relation of master and servant to that of parent and child, we will consider the duty of the defendant (the proprietor of the store) to the plaintiff, a customer, while in the store. In Swinarton v. Le Bouttelier, 28 N.Y. Supp., 53, the duty is thus declared: "We hold, furthermore, that, having invited the plaintiff into his store for his benefit, and having authorized and induced her to confide in the good conduct of his servants, to whom, in the transaction of his business, he committed (302) her, he thereby assumed the duty, by the exercise of reasonable care, of protecting her from injury by the misconduct of such servants, and that he is answerable to her for any injury she has sustained by such misconduct." In Mattson v. R. R.,
Affirmed.
Cited: Monroe v. R. R., post, 377; Linville v. Nissen,