Kuhns v. Brugger, Appellant.
Supreme Court of Pennsylvania
October 7, 1957
reargument refused November 12, 1957.
390 Pa. 331 | 135 A.2d 395
I most emphatically dissent.
John G. Gent, with him Curtze & Gent, for appellant.
Charles E. Kenworthey, with him Frank B. Quinn, James H. Hardie, Quinn, Leemhuis, Plate & Dwyer, and Reed, Smith, Shaw & McClay, for appellees.
OPINION BY MR. JUSTICE BENJAMIN R. JONES, October 7, 1957:
On July 23, 1953 a tragic and unfortunate event occurred which has resulted in this litigation. Albert G. Kuhns, 12 years old, was wounded by a bullet from a pistol discharged by his cousin, George A. Brugger, also 12 years old, while in the cottage of their common grandfather, George W. Bach, located at Manchester Beach, Erie County, and, as a result thereof, Kuhns sustained serious physical injuries.
Through a guardian, Kuhns instituted a trespass action, joined in by his parents, against George Brugger; later, by permission of court, the executor of the George W. Bach Estate was joined as an additional party defendant.1 A motion for severance of the actions having been refused, the suit against both de-
Both defendants have appealed, requesting judgments n.o.v., or, in the alternative, new trials. In considering these appeals the scope of appellate scrutiny of the evidence varies. Upon an appeal from the refusal to grant a motion for judgment n.o.v. the testimony must be read in the light most favorable to the verdict winner, all conflicts therein must be resolved in his favor, and he must be given the benefit of all facts and inferences from facts reasonably deducible from the evidence: Wolansky v. Lawson, 389 Pa. 477, 481, 133 A. 2d 843; Wilbert v. Pittsburgh Consolidated Coal Co., 385 Pa. 149, 154, 122 A. 2d 406; Lessy v. Great Atlantic & Pacific Tea Company, 121 Pa. Superior Ct. 440, 444, 183 A. 657. However, this rule does not apply upon appeal from the refusal of a new trial.2 In determining the propriety of the refusal of a new trial the present Chief Justice JONES stated in Wilbert v. Pittsburgh Consolidated Coal Co., supra (pp. 156, 157): “Practically all of the evidence was introduced by way of oral testimony the credibility whereof was necessarily for the jury whose verdict will
Bach, an elderly man, owned and occupied—at least, part of each year—a one story cottage at Manchester Beach on the shore of Lake Erie. This cottage was located in a somewhat isolated area in the immediate vicinity of which were several commercial fisheries. A hunting devotee, Bach owned various guns and other firearms including the Colt Woodsman .22 calibre automatic pistol which constitutes the focal point of this incident. When this pistol was not in use Bach kept it in a loaded condition in an unlocked dresser drawer in his unlocked bedroom.
At approximately noon on July 23, 1953, Bach‘s two young grandsons, Kuhns and Brugger, went fishing; upon their return at approximately 3:30 P.M. and during Bach‘s absence, the boys entered their grandfather‘s bedroom. Katrina Brugger—Brugger‘s 2 year old sister—was then playing in the bedroom. In a spirit of play Brugger picked up a so-called “under and over” gun—a combination shotgun and rifle—and pointed it at Kuhns. As he did this, Miss Fries, a great aunt of the boys, entered the bedroom and ordered Brugger to put away the gun which he did. A few minutes later Brugger went to his grandfather‘s
According to Brugger4 the shooting occurred in the following manner: “And I took it [the pistol] out, took it out of the holster, took it in my hand. I believe I had my finger on the trigger. And I pulled the slide back, and then the shot occurred.” The bullet, thus ejected, penetrated Kuhns’ body and perforated the spinal cord, paralyzing the entire lower portion of his body and destroying all voluntary control of his organs in that part of his body. His condition, as portrayed at trial, is such that he can no longer walk, requires constant care and medication and can never be gainfully employed.
The defendant Brugger takes the dual position that the evidence was insufficient as a matter of law to establish any negligence on his part and that the Court below, in submitting the question of his negligence to
Brugger‘s contention that he is entitled to judgment n.o.v. because of the lack of sufficient evidence of negligence on his part is clearly untenable. This Court, in Fredericks v. Atlantic Refining Co., 282 Pa. 8, 13, 127 A. 615, set forth the required rule of conduct when dealing with any dangerous agency: “A higher degree of care is required in dealing with a dangerous agency than in the ordinary affairs of life or business, . . . every reasonable precaution suggested by experience and the known danger ought to be taken . . .” See also Maternia v. Pa. R. R. Co., 358 Pa. 149, 56 A. 2d 233; Summit Hotel Company v. National Broadcasting Company, 336 Pa. 182, 8 A. 2d 302; Konchar et al. v. Cebular, 333 Pa. 499, 3 A. 2d 913. Any loaded firearm, including a pistol, is a highly dangerous instrumentality and, since its possession or use is attended by extraordinary danger, any person having it in possession or using it is bound to exercise extraordinary care. A person handling or carrying a loaded firearm in the immediate vicinity of others is liable for its discharge, even though the discharge is accidental and unintentional, provided it is not unavoidable: Lindh v. Protective Motor Service Co., Inc., 310 Pa. 1, 4, 164 A. 605; Winans v. Randolph, 169 Pa. 606, 32 A. 622; Knasiak v. Rambo, 57 Pa. Superior Ct. 8; Gaussman v. Philadelphia & Reading Railway Co., 55 Pa. Superior Ct. 542.5 When a person picks up a fire-
Brugger submits, however, that, because of his age, he was presumptively incapable of negligent conduct and therefore his conduct did not render him liable for the injury which followed the discharge of the firearm. In short, Brugger relies upon his age to absolve him of any culpability for his actions and the manner in which the Court below instructed the jury to secure a new trial.
Even though the standard of care applicable to a minor differs from that applicable to an adult,7 never-
Brugger at the age of 12 years was not to be judged by adult standards; on the contrary, it was necessary to inquire whether his conduct was such as should reasonably have been expected of a child of like age, intelligence and experience. Brugger‘s culpability or exculpability of actionable negligence depended upon a measurement of his conduct based on variable factors—his capacity and understanding based upon his age, intelligence, experience, etc.: a measurement properly to be made by a jury with the opportunity to evaluate his individual capacity to perceive danger. Concerning the capability of negligent conduct of a child between the ages of seven and fourteen it has been said: “Generally their conduct has been determined by a jury. This has been because the ascertainment of the capacity to perceive danger involves the determination of judgment factors, i.e., knowledge, intelligence, experience, character of the danger, which are often associated with questions of fact and hardly ever beyond reasonable doubt . . .“: 51 Dickinson L. Rev. 79, 84, 85. Whether Brugger at his age and un-
We have carefully examined the trial judge‘s instructions to the jury on the law applicable to the determination of Brugger‘s negligence and find such instructions free from error. The trial judge was singularly cautious in explaining to the jury the requisite standard of conduct of a 12 year old boy, the presumption in his favor and the yardstick to be applied in measuring his conduct. Appellant‘s complaint concerning that portion of the instructions which referred to the possibility that Brugger might have violated a criminal statute in pointing the pistol at Kuhns is without merit. Whoever wantonly or playfully points a pistol at another offends against our criminal code (
In considering the defendant Bach Estate‘s motion for judgment n.o.v. we must entirely eliminate certain portions of the testimony. Under the
Eliminating such testimony the record reveals that the pistol was owned by Bach, that it was kept in an unlocked dresser drawer in his unlocked bedroom with a clip of cartridges in its handle, that young Brugger not only was aware of the existence of the pistol—having been shown it on several occasions by Bach—but also its place of containment in the bedroom, that the unlocked bedroom was open to members of the family, including young grandchildren, that Brugger and Kuhns were accustomed to enter the bedroom, that Kuhns was injured in the bedroom by a shot from a firearm and the pistol was on the top of the dresser immediately after the shooting, that Mrs. Bach related a conversation with Kuhns after the shooting in which he expressed no hard feelings toward Brugger in connection with his injury—this evidence, with
The possession of this loaded Colt pistol did not constitute Bach an insurer against liability for injuries arising from its use nor render him liable without fault; it did, however, impose upon him a very serious and grave responsibility. Its possession placed upon him the duty of exercising not simply ordinary, but extraordinary care so that no harm might be visited upon others. We are not called upon to determine whether the possession of other instrumentalities or objects, such as knives, medicines, poisonous substances, etc., would impose the same degree of care under similar circumstances; we are simply to determine the degree of care imposed upon the possessor of a loaded pistol, a weapon possessing lethal qualities, under the circumstances. In this connection the language of Mr. Justice GIBSON in Sullivan v. Creed, 2 (Ir.) K.B.D. 317, 2 BRC 139, is appropriate: “A hatchet, a bottle of poison labeled ‘poison‘, the same bottle unlabeled, a loaded gun, gunpowder, or dynamite, all represent articles of varying degrees of danger, and the greater the danger the higher is the standard of the diligence which the law exacts.”
The duty imposed upon Bach encompassed all those persons who might suffer harm or injury from the pistol‘s discharge and included the pistol‘s use not only by Bach but its use by a third person if Bach knew or had reason to know that such person was likely to use the pistol in such a manner as to create “an unreasonable risk of harm to others.”12
Over many years Bach‘s grandchildren were visitors and guests at the cottage. Not only were the general living quarters of the cottage unrestricted to them but
In that bedroom were kept not only fishing equipment but, at least, two firearms—all attractive to interested boys. Not only was Brugger aware of the fact that his grandfather possessed this pistol but he knew that it was kept in the bedroom; of these facts the grandfather was cognizant. Despite knowledge that the grandchildren frequented the unlocked bedroom Bach not only kept the pistol in an unlocked drawer but also in a loaded condition, i.e. the clip of cartridges was in the pistol handle.
It is contrary to every human experience to expect that children, particularly boys, would not want to touch and handle a pistol. There is something magnetic about highly engined firearms with their harmonious lines and graceful proportions which attracts both young and old, whether the ordnance be a beautiful revolver, an old-fashioned fowling piece or a piece of artillery. Bach knew or should have known that any 12 year old boy, such as either of his two grandsons, might rummage around his bedroom and, finding the pistol, handle it. Applying either the “foresight” or the “hindsight” test, it is evident that Bach could have anticipated and foreseen the likelihood of harm resulting from leaving the loaded pistol in an unlocked drawer in a bedroom frequented by children.13
When Brugger came upon this pistol his first impulse—common to all boys—was to see if he could operate it. He, of course, entertained no desire to bring
Under the circumstances Bach was under a duty to keep this pistol away from his young grandchildren. Counsel for the Bach Estate argue that the decedent had a perfect right to keep this pistol in his home if only to protect himself against nocturnal prowlers. It is argued: “Where else should George Bach, in the exercise of reasonable prudence, have kept a gun for protection against unexpected midnight intrusion except in the dresser drawer of his private bedroom, where it would be readily available in case of need?” No one can question the right or the prudence of Bach being armed against possible midnight prowlers and intruders. However, this shooting did not take place at nighttime, but in the afternoon in a room where the presence of young grandchildren might be anticipated. As common prudence, in behalf of self-protection, justified the possession of the pistol for immediate use at night, equal prudence, in behalf of protecting children, dictated that the pistol be kept under lock and key in the daytime, especially in the grandfather‘s absence.
We are not confronted with the question of a grandparent‘s liability for the tortious conduct of a minor grandchild; on the contrary, we are determining whether the grandparent by his own conduct was guilty of negligence, and whether, if negligent, his negligence was the proximate cause of Kuhns’ injury. Bach‘s liability depends on the nature of the instrumentality involved, the place, the time and the persons likely to be brought in contact with the instrumentality. The gist of the liability sought to be imposed is that Bach was negligent in permitting a highly dangerous instrumentality to be in a place
The Restatement of the Law of Torts, supra, §308, declares: “It is negligent to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to
The affixation of liability under circumstances similar to the instant situation is neither novel nor without precedent in other jurisdictions.15
to have foreseen that the boy might—I do not say would, but that he might—use the gun negligently? This appears to me to be the ultimate and crucial question in the case. . . . However, no one individual can determine what would be done by this hypothetical creature [a reasonable man] under any given state of circumstances otherwise than by his own experience, and, as the experience of one man usually differs from that of another,16 our law wisely says that what is ‘reasonable’ is to be determined by the jury—that is, it is to be the resultant of the, to a certain extent, varying opinions of twelve different persons. . . .”
The precise question herein presented is one of first impression in this Court, although somewhat similar situations have been presented in the Superior Court. In Swanson v. Crandall et al., 2 Pa. Superior Ct. 85, the defendant father kept a loaded revolver in the upper drawer of a chiffonier located in a bedroom occupied by his wife and small child; the defendant‘s 5 year old daughter discovered and discharged the revolver wounding a nursemaid. The Superior Court held that the facts did not constitute a basis for recovery by the nursemaid. The Swanson decision might be distinguished upon the ground that there was no evidence that the child obtained the revolver from the drawer—the place where the defendant kept it—on the day of the accident; however, the language of this decision indicates that the father‘s act in keeping a loaded re
Mendola et al. v. Sambol, 166 Pa. Superior Ct. 351, 71 A. 2d 827, is very apposite. In that case the defendant-father kept a .22 calibre repeating rifle in his home; on the evening in question the father and a 11 year old son were going hunting for rats; while the father performed some chores he placed the gun unattended behind the living room door; the son found the gun, took it to the car in readiness for the hunting trip and then proceeded to demonstrate the operation of the gun to a 7 year old child and the gun was discharged injuring the child. In upholding a verdict for plaintiffs, the Superior Court found that the defendant was negligent and such negligence was the natural and probable cause of the accident “since it was the natural and probable consequence of his negligent act in making the loaded gun accessible to his son.” It is particularly significant that the Court recognized that there “are few things as attractive to a young boy as a gun” and that, both before and since the Restatement of the Law of Torts, it was the accepted rule that a father‘s conduct in permitting his child to have access to a dangerous instrumentality and the child‘s use of it to the injury of another may be negligence depending on the circumstances. In Fleming et al. v. Kravitz, 260 Pa. 428, 103 A. 831, a 6 year old boy was playing with a toy air gun in the barrel of which was the stem of an ordinary match; the boy discharged the gun with the result that the match struck the eye of another boy
Under the circumstances herein presented the question of Bach‘s liability was clearly for the jury to determine. The jury having found that he was negligent, and the evidence being sufficient to sustain such finding, judgment n.o.v. was properly refused.
The Bach Estate argued that the trial judge erred in refusing to sever the two actions for trial, especially in view of the Act of 1887, supra, which rendered inadmissible the testimony of Kuhns and Brugger as against the Bach Estate. When Kuhns’ and Brugger‘s testimony were offered the Court very clearly instructed the jury that they were not to consider such testimony in determining the liability of the Bach Estate. In the trial judge‘s charge this question was again discussed and the jury was warned that Kuhns’ and Brugger‘s testimony were not to be considered; the trial judge then said: “It will be necessary for you to determine the liability as to him [Bach], from testimony given otherwise than by Albert G. Kuhns and George A. Brugger as to events during the lifetime of George W. Bach.” The instruction in this respect could not have been more clear. The liability of the Bach Estate was not dependent on the testimony of Kuhns and Brugger: as the Court below said in its Opinion: “Eliminating the testimony of Kuhns and Brugger under the direction of the court, the jury had more than sufficient facts and inferences from which to determine Bach‘s responsibility and liability. In addition to the facts previously herein recited Dr. Ray H. Luke
The Bach Estate, moreover, did not present this question in the statement of questions involved. In line with our well established rule this argument which related to a question not presented in the statement of questions involved should not be considered on this appeal: Rule 35, Rules of the Supreme Court of Pennsylvania: Kerr v. O‘Donovan, 389 Pa. 614, 630, 134 A. 2d 213; Blue Anchor Overall Co. v. Pa. L. Mut. Ins., 385 Pa. 394, 402, 123 A. 2d 413; Burke Appeal, 378 Pa. 616, 108 A. 2d 58.
In behalf of their motions for a new trial, both defendants allege trial errors, all of which we have considered. We see no merit in the contention that the Bach Estate was prejudiced in the eyes of the jury because, in his opening statement to the jury, counsel for the plaintiff said that Bach was the president of the American Sterilizer Company. The judge instructed the jury that Bach‘s position had nothing to do with the issue. Nor was the Bach Estate prejudiced to its harm because the jury panel was asked whether any of them were stockholders or employees of the American Sterilizer Company.
The appellants find fault with various remarks made by plaintiffs’ counsel in his summation to the jury. We see nothing in those utterances which go beyond what is generally heard in zealous partisan arguments to juries.
It is contended further that the Court‘s charge was inadequate and misleading both as to negligence and contributory negligence features. Counsel in their briefs quote various portions of the Court‘s charge and consider them as isolated from the remaining parts of the charge. Without conceding that any particular statement made by the judge was improper or incorrect, we are convinced that taking the Court‘s charge as a whole it properly propounded the law applicable to the particular circumstances under discussion.
The appellants submit also that the trial judge erred in sending out a memorandum with the jury on possible verdicts. The evidence introduced on expenses incurred and to be incurred was voluminous and intricate. The memorandum was given for the purpose of guiding the jury, and was in no sense a direction as to what they should do. We find no fault with the lower Court‘s explanation, as given in his opinion: “The first item on the memorandum suggested the verdict for the defendants in case there was no right of recovery because neither defendant was guilty of negligence or the plaintiff was guilty of contributory negligence. The breakdown of the various possible verdicts if a recovery was to be allowed was in the court‘s opinion necessary, and it was proper. An examination of that memorandum will indicate the difficulty the jury would have had in correctly considering and allocating the many items involved under the testimony.”17
Strangely enough, the Bach Estate, while arguing that the verdict was excessive, complains as to the manner in which the lower Court reduced the verdict: “By way of illustration of the arbitrary manner in which the reductions were made by the lower Court, attention is called to the Court‘s conclusion that the award for minor plaintiff‘s food and education expenses and care should be reduced from the aggregate of $75,175.40 awarded by the jury to $47,540.00.”
We find no error which would justify a retrial of this case, and the judgment is accordingly affirmed.
Mr. Justice COHEN dissents.
DISSENTING OPINION BY MR. JUSTICE BELL:
Plaintiffs sued young Brugger and subsequently amended their complaint to join his grandfather‘s estate. The motion for judgment n.o.v. raises an important question: Did plaintiffs prove that George W. Bach, the deceased grandfather, was negligent in leaving a loaded revolver in the top bureau drawer of his bedroom, or, expressed another way, did plaintiff prove a want of due care under the circumstances of this case?
Albert G. Kuhns, 12 years old, was wounded on July 23, 1953, by a bullet from a pistol discharged by his 12 year old cousin, George A. Brugger, while in the bedroom of their grandfather, George W. Bach, in his cottage in an isolated part of the country along the shores of Lake Erie. The boys were visiting their grandfather
A man‘s home is no longer his castle, but until today it has been the home of himself and his family. Ever since early Biblical times, in nearly every civilized part of the globe, except recently in Communist countries, the “family” has been the most important and the most sacred thing in life except God. The family unit
The majority decision of necessity will require a parent and grandparent to keep under lock and key (and keep the key constantly in his or her pocket) every revolver, carving knife, butcher knife, and every possibly-dangerous household article, as well as every medicine closet, in order to be legally safe from suit by a member of the family or one of their young playmates. If, for example, a burglar or robber entered a
I would hold as a matter of law that, from a legal, practical, family and public-policy point of view, Bach was not guilty of negligence and I would enter a judgment n.o.v. as to the executor of the will of George W. Bach.
Why was a fair trial for Bach a “practical” impossibility? The evidence in the case which was admissible against Bach alone and all the reasonable inferences therefrom, amounted (at best for plaintiffs, according to the majority‘s view of negligence), to slightly more than a scintilla. In spite of this the trial Court admitted, in this joint trial, evidence which was admissible against Brugger but not against Bach; and this inadmissible evidence as to Bach was so much stronger than the scintilla of legally admissible evidence (against Bach) that it could not fail to prejudice the jurors against Bach, and could not possibly be eliminated from their minds when they came to decide Bach‘s due care or want of due care.*
The majority‘s refusal of a new trial is untenable. The majority say that if you eliminate the testimony of Kuhns and Brugger, the jury still had sufficient, although barely sufficient facts (and inferences therefrom) to justify a verdict of negligence against Bach. That would be the proper test in considering, not a new trial, but an n.o.v. Nevertheless, in sustaining the lower Court‘s refusal of a new trial, the majority now unwittingly apply the legal test for an n.o.v. instead of the test for a new trial. The basic question on this point is not whether, eliminating the inadmissible testimony of Kuhns and Brugger, there was barely sufficient evidence to fasten negligence upon Bach—the question is whether, when you take a scintilla of evidence of negligence and pile upon it (relatively) strong and direct inadmissible evidence of (under the majority‘s theory) negligence, you can justify a failure to grant a severance and a new trial by applying the test which is applicable only in questions involving n.o.v., namely, were there sufficient facts and inferences therefrom to justify a verdict?
Two additional reasons make the granting of a new trial even more imperative. The memorandum as to liability and damages (for the parents, and for Albert for pain, suffering, humiliation and embarrassment, etc.) which the trial judge sent out to the jury, was, in my opinion, unfair and undoubtedly prejudicial. Furthermore, Kuhns’ father and mother recovered a verdict, in accordance with said memorandum, of over
For the aforesaid reasons I would enter a judgment non obstante veredicto in favor of the Bach Estate. If a judgment n.o.v. is refused, I would grant a new trial in the interest of justice, because the dismissal of the motion for a new trial by the Court below constituted a palpable and gross abuse of discretion.