This case is before this court on a joint appeal by the appellant plaintiffs from the grant of summary judgments in favor of the defendants in two actions. One action was by Samuel Jackson Scarboro, the father of an injured son, seeking recovery of hospital and medical bills incurred by him in behalf of the injured son, Forester David Scarboro, brought against a young boy, alleged to have thrown a rock which caused the injury, and his father. The other suit was by the injured boy, through his father as next friend, against the same parties defendant. The theory on which recovery was sought is shown by the pleading in each case, which alleged: "That on or about 2:00 p.m. on March 4, 1972, defendant, Renee Lauk, *360 wilfully and wantonly threw rocks at plaintiffs son with malice and with intent to injure plaintiff. That defendant Renee Lauk had previously thrown rocks at this plaintiffs son and at other individuals with intent to injure said persons and defendant Frank W. Lauk had knowledge of the dangerous course of conduct of defendant Renee Lauk. That despite knowledge of defendant Frank W. Lauk of the dangerous course of conduct of his son, defendant Renee Lauk, Frank W. Lauk negligently failed to exercise appropriate control over his said son so as to prevent injury to third persons.” The thrown rock caused the plaintiffs son to lose the sight of one eye. Upon the hearing on the motion for summary judgment the evidence showed without conflict that the defendant, Renee Lauk was six years old at the time of the occurrence and that he threw the rock that injured Forester Scarboro; that neither Frank Lauk nor his wife knew of any previous occurrence of rock throwing or similar activity on the part of their son, Renee, although there was testimony of a baby sitter that she had told Mrs. Lauk that an older son of theirs had engaged in shooting a pellet gun at a neighbor’s dog. Mrs. Lauk did not recall the conversation. Also, the baby sitter testified Mrs. Lauk had told her it would not be necessary to "watch” the children when they were outside, while Mrs. Lauk, in answer to a question as to what instructions she had given the sitter "with regard to the supervision of the children while they were outside of the house,” replied "to watch them” and "[s]he was hired to watch the children and take care of them.” Appellants contend that this evidence created a question of credibility of the witness, Mrs. Lauk, and that for this reason a summary judgment was improper. The evidence was in conflict as to which group of boys, the one containing Renee, or the one containing Forester, started the rock throwing. Renee denied his intention to hit anyone. Held:
1. The defendant child being six years of age at the time of the alleged tort was, as a matter of law, not liable therefor even though wilful. Code § 105-1806;
Brady v. Lewless,
2. " 'Under the common law, traditionally, parents were not liable in damages for the consequences of the torts of their minor children solely because of the existence of the parent-child relationship. Unless the parent participated in the minor’s tort, or through negligence caused or permitted the tort to occur, courts often absolved parents from liability, unless some other relationship, such as that of principal and agent, or master and servant, existed between parent and child.’ 8 ALR3d 614, Parent and Child, § l[a]. The decisions of this court and of the Court of Appeals have been in accord with these common law principles. The rule enunciated in Georgia is that the liability of a parent for an injury committed by his child is governed by the ordinary principles of liability of a principal for the acts of his agent, or a master for his servant. Code § 105-108.
Chastain v. Johns,
3. Failure to keep an "unremitting watch and re
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straint” over children in their own yard in the absence of knowledge of facts and circumstances requiring such action is not negligence. See,
Faith v. Massengill,
4. It thus appears that the "discrepancy” between the testimony of the sitter and the mother were as to matters neither relevant nor material to the cause of action attempted to be asserted in the present case. The conflict, therefore, not being as to material matters does not create such conflict as would present a matter of credibility for a jury determination. See,
Daniels v. Luton,
5. The trial judge did not err in granting summary judgment in favor of the defendant father in both actions.
Judgment affirmed.