Opinion by
Plaintiff’s son died as a result of a gunshot wound inflicted by a minor child under the age of sixteen, who had
The Act of June 10, 1881, P. L. Ill, section 1, makes any person, who “shall knowingly and wilfully sell or cause to be sold to any person under the age of sixteen years any cannon, revolver, pistol or other such deadly weapon,” guilty of an offensei. The court below held liability could not be imposed until the presumption of innocence was overcome by evidence so preponderating as to fairly lead to the conclusion the act complained of was committed by defendant or under his positive orders, relying on Catasauqua Mfg. Co. v. Hoрkins,
The court below, in the present case, confused civil with criminal liability. In a civil аction at common law,
Defendant was then and is now responsible for the acts of his servant done within the scope of authority, as in other actions of like nature, where the relation of principal and agent exists. The Act of 1881 merely substitutes, for the proof necessаry to show lack of capacity, the hard and fast rule of sixteen years of age. Children under that age have been legislatively declared utterly unfit tо handle firearms. The negligent act is solely referable to the unlawful sale to a minor under sixteen. Where the sale is made in the ordinary course of business, it is immaterial whether the clerk or the owner sells the weapon. A principal is liable in damages because of the criminal acts of his agent,, where such acts are within the scope of the agent’s employment: 26 Cyc. 1529; A. & E. Enc. of Law, 2d edition, vol. 20,176. See also Faiola v. Calderone,
“When the defendant sold the shell to Samuel (a minor), he violated the statute, thereby making himself liable for any natural or probable harmful result which might follow in the wake of his wrongful act”: Shaffer v. Mowery,
Plaintiff’s son stands in a position different from that of the boy to whоm the gun was sold. Plaintiff’s son was a stranger to defendant’s transaction. The statute does not coyer injuries to third persons; their legal status is the same as if the stаtute did not exist; the common law doctrine of contributory negligence applies. Assuming plaintiff’s son was between the ages of fourteen and fifteen, hе is presumed to have capacity to appreciate and avoid danger: Nagle v. Allegheny Valley Railroad Co.,
The evidence shows the boys were playing with the gun before they reached the сemetery gate where the accident took place; it is also clear this conduct did not continue to the gate but had ceased before it was reached. Only one explanation of the gun’s discharge appears in the testimony: “Q. What happened when you got down to that gate? A. We were down at the gate and down a little ways. I shot Lee McMillen. I had the gun over my arm and it just went off some way and shot him.” Unless defendant’s evidence brought the boy’s carelessness to the gate, and showed the' playing there caused the gun’s discharge, the court was bound to submit the case to the jury on the evidence above quoted,
The court below refused to admit evidence of the dress and general appearance of Charles Meyers at the time the gun was purchased and shortly thereafter, for the purpose of showing defendant wilfully and knowingly sold the gun to a minor. The boy wore short trousers and a blouse waist. Personal apрearance should be received as some indication of a child’s age; it may be slight evidence, but its weight is for the jury. It might be, under given circumstances, extrеmely difficult to tell age by observation, but this relates more generally to older persons. Where age is one of the necessary ingredients of a сrime, appearance, standing alone, would hardly be considered sufficient to establish the fact. Here we have the testimony as'to age, thе boy’s general appearance and the manner of dress; under these circumstances, the evidence should have been admitted.
The assignments of error are sustained and the judgment is reversed with a venire facias de novo.