Meers v. McDowell

110 Ky. 926 | Ky. Ct. App. | 1901

Opinion of the court by

JUDGE HOBSON

reversing.

Appellant filed this suit in the Larue Circuit Court. A general demurrer was sustained to the petition, and the action was dismissed. The sufficiency of the petition is the only question to he determined on the appeal. The allegations of the petition are as follows: The plaintiff George M. Meers, is the father of Shelbum Meers, an infant 1(6 years of age, residing with the plaintiff. The defendant, Al'onzo McDowell, is the father of Ollie McDowell, an infant--years of age, of weak and undeveloped mind for a child of his age, and in the custody and control of his father. The defendant, notwithstanding his son Ollie was at any time incapable of making proper use of dlangerous weapons, negligently permitted him to have in his possession a loaded riñe, and while in possession of the rifle he shot Stielburn Meers, plaintiff’s infant son, inflicting upon him injuries which permanently deprived plaintiff of his son’s services, of the value of $1,500, and caused expenditures by plaintiff, for nursing, medicine, and medical attention for liis son, to the amount of $500. Defendant’s son Ollie was known by him to be wholly incompetent to make proper use of a deadly weapon, and was negligently permitted by him to have and use the rifle; and, while he wa,s in possession of the rifle, defendant recklessly gave to his said son Ollie intoxicating liquor, and the son was under the influence of the liquor at 'the time of the shooting, which -was the result of the defendant’s negligence, as started.

In Dixon v. Bell, 1 Starkie, 287, the declaration alleged that the defendant sent a young maidservant for a loaded gun, that he knew her to be too young and indiscreet to be intrusted with the oare and custody of it, and that she carelessly and improperly shot the plaintiff’s minor son with the gun, severely wounding him. The girl was between 13 and 14 years of age. The defendant sent word by her to ‘the person having the gun to take the priming out. This was, done. 'She took the gun and presented it in play at the plaintiff's son, saying she would shoot him, and drew the .trigger. The gun went off. Lord Ellen-borough submitted to the jury the question whether the defendant was guilty of negligence in intrusting the gun to a servant of such an age, wiho, under all the circumstance®, was likely to make such a use of it as a person of proper discretion would not have done, and instructed them that, if the gun ought not to have been intrusted to such a person, they should find for the plaintiff. The jury returned a verdict against the defendant, which was sustained by the.court. In Carter v. Towne, 98 Mass., 567 (96 Am. Dec., 682), the defendant sold gunpowder to a minor of the age of 8 years, whom he knew to be unfit to be intrusted with it. The child was injured by an explosion of the powder. The defendant was held liable. The court said: “By the well settled rule of the common law, a person who negligently uses a dangerous instrument or .article, or causes or authorizes its use by another person in such a manner or under such circumstances •that he has reason to know that it is likely to produce injury, is responsible for the natural and probable consequences of his act to any person injured who is not himself in fault. The liability does not rest on privity 'of contract between the parties to the action, but on the duty of every man so to use 'his own property as not to injure the person or property of others.” In Binford v. Johnson, 82 Ind., 426 (42 Am. Rep., 508), the defendant sold cartridges for use in a toy pistol to two boys, one aged 10 and .the other 12 years, and instructed them how to use the cartridges. Another boy 6- years old subsequently picked up the toy pistol containing one of the cartridges, and shot with it one of the boys who bought them. The dealer was held liable for the shooting of the child. The court quoted with approval from an English case: “The law of England in its care for human life, requires consummate caution in the person who deals with dangerous weapons.” It approved this as also the law in America, and said: “A man who places in the hands of a child an article of a dangerous character, and one likely to cause injury to the child itself or to others, is guilty of an actionable wrong. If a dealer should sell to a child dynamite, or other explosives of a similar character, nobody would doubt that he had committed a wrong for which he should answer in case injury resulted. So, if a druggist should sell to a child a deadly drug likely to cause harm to the child or injur3’ to others, he would certainly be liable to an action.” These cases are approved by the text writers. See Cooley, Torts, 594; Bislh. Noncont. Laiw, section 151; 3 Lawson, Rights, Rem. & Prae-., section 1145. They -rest upon the principle that in the use of firearms, which are necessarily dangerous, all persons are bound to take care to avoid injury to others in proportion to the probability of such injury. If the defendant’s child was, from age or mental weakness or the use of intoxicants, incompetent to be intrusted with a deadly weapon, and the defendant knew the danger, or should have known it in the exercise of reasonable care, he should not have permitted him to use the loaded rifle. See note, Chaddock v. Plummer (Mich.) 14 L. R. A., 675 (s. c. 50 N. W., 135).

It will be observed that the action is by the father for the injury to him from the loss of the son’s services, and the expenses incurred by him in consequence of the son’s injury. In several cases this court has sustained actions of this character. Railroad Co. v. Willis, 83 Ky., 57, (4 Am. St. Rep., 124); Railway Co. v. Carroll, 31 S. W., 132, (17 Ky. L. R. 274). Judgment reversed and cause remanded, with directions to overrule the demurrer to the petition, and for further proceedings consistent with this opinion.