Landis, Gdns. v. Condon, 2179

2179 | Ohio Ct. App. | Apr 3, 1952

This is an appeal on questions of law from a judgment of the Common Pleas Court dismissing plaintiffs' amended petition after the sustaining of defendants' general demurrer thereto.

By the amended petition, the plaintiffs, parents of the minor child, Carl Landis, instituted this action in his behalf, alleging:

"That on the date alleged Carl Landis, while walking along a corridor in the Colonel White School, the child of the defendants, Fred Condon, aged fourteen years, did willfully and maliciously attack the son of Nathan and Clara Landis by jumping upon his back and throwing him to the floor of said corridor."

The injuries suffered are set out, and the amended petition continues and avers:

"That the parents and guardians of said Fred Condon, well knew said child to be of vicious propensities and disposition, and that said child should not have been at large, without a proper guard or watch over said Fred Condon, and that said parents, the defendants herein, were negligent in letting said child run at large, knowing full well the reckless and vicious disposition of said child."

The brief of plaintiffs, appellants herein, quotes the decision of the trial court on the demurrer as follows:

"But the difficulty with the amended petition is that the facts with regard to the source of knowledge of the child's vicious character are wholly omitted and we are supplied only with the conclusion that the defendant parents possessed such knowledge. And a mere conclusion of fact or law is not admitted by demurrer."

Condensing the amended petition, it avers the fact of the assault, which it is claimed was willful and malicious; that it was made by the son of the defendants; that the son had vicious propensities and disposition, known to the parents; and that they negligently failed to properly guard or restrain the child.

There is a paucity of adjudication in Ohio upon the question presented. Of course, it is a safe proposition to say that conclusions of law are not sufficient against general demurrer, but the averment of knowledge is a mixed conclusion of law and fact or of fact alone, and in many instances it is considered to be adequate pleading. For instance, in negligence actions against a city for the maintenance of a nuisance in the streets. In these cases it is essential that notice to the city be pleaded and proved, but such notice is charged by an averment that the city knew or should have known the dangerous condition of which complaint is made.

We are satisfied that the averment of the vicious tendencies of the child of defendants, together with the averment that they were well known to his parents is sufficient against a general demurrer. In the case of Cluthe v. Svendsen, 9 Dec. Rep., 458, 13 W. L. B., 633, it is said that the gist of the action is that the negligence of the parent with knowledge of the vicious propensities of the child made the injury possible.

While the court held in Ringhaver v. Schlueter, 23 Ohio App. 355" court="Ohio Ct. App." date_filed="1927-01-17" href="https://app.midpage.ai/document/ringhaver-v-schlueter-6675663?utm_source=webapp" opinion_id="6675663">23 Ohio App. 355,155 N.E. 242" court="Ohio Ct. App." date_filed="1927-01-17" href="https://app.midpage.ai/document/ringhaver-v-schlueter-6675663?utm_source=webapp" opinion_id="6675663">155 N.E. 242, that the parent was not liable for the tort of the minor charged, the reason for the holding was, in part, at least, that the act complained of was not in itself evidence of a weak or vicious mind. Thus, the parent could not be held to be chargeable with knowledge of any vicious propensities of the child.

It is said in Evans v. Cricket, 2 Dec. Rep., 404, 405, 2 W. L. M., 603:

"So, in petitions under the code * * * which requires the facts to be stated, `allegations of ownership, possession, * * * notice, demand, delivery,' and mixed questions of law and fact, * * * may be averred, although the averment is somewhat in the form of a conclusion."

See, also, Bates' Pleading, Practice, Parties Forms (4 Ed.), 1880, and the form of petition at page 1884.

"An averment of knowledge is not a conclusion of law. * * * It is a statement of fact * * *." American Surety Co. of NewYork v. Multnomah County, 171 Or., 287" court="Or." date_filed="1943-04-06" href="https://app.midpage.ai/document/american-surety-co-v-multnomah-county-3838292?utm_source=webapp" opinion_id="3838292">171 Ore., 287, 138 P.2d 597" court="Or." date_filed="1943-04-06" href="https://app.midpage.ai/document/american-surety-co-v-multnomah-county-3838292?utm_source=webapp" opinion_id="3838292">138 P.2d 597, 148 A. L. R., 926.

It is our judgment that the amended petition was good against the general demurrer, and that the action of the Common Pleas Court in sustaining the demurrer and entering judgment of dismissal was prejudicially erroneous.

The judgment is reversed, and the cause is remanded with instructions to overrule the demurrer.

Judgment reversed.

WISEMAN and MILLER, JJ., concur.