*1 1966] 81 Cooper Inc. Meg., Tranter v. Opinion Coubt. miscarriage justice, or affect trial or cause a fair parties. rights the substantial not follow auto new trial does showing for “Reversal matically of error course from a probably was, generally There never fair trial. jury perfectly trial. conducted be, will never and The jury is one of a new trial which calls for error prejudiced significance as to have result. such Mich v. Smolenski, 63; 249 v. Sheehan Miskiewicz It 239. must be one Dalrymple, Mich might say have that the result well can which we (1959), Mich different.” Rouse Gross been 475, 481.
Judgment court affirmed, of the circuit plaintiff-appellee. to the costs concurred. JJ., Quinn,
Burns v. BENNETT.
WHALEN the Court. Injury —Air Guns. Statutes —Violation—Personal 1. gas air, pertaining spring, to the use statute criminal held, on the operated handguns, to create civil permitting his child to use of a 752.891, 752.892). (CLS 1961, statute violation §§ [1, [3] [4] [5, [6] 2] 41 41 Am 39 Am 53 Am Am Jur, Jur, Pleading Jur, Pleading Jur, Jur, References Evidence Parent Trial § § and Child § § 190. 77. 157 et 342. for Points seq. § 56. in Headnotes App Negligence Dangerous Instrumentality —Air Gun. — instrumentality placing An not a per se. a minor ehild is not the hands of *2 Liability 3. Same—BB Parent for Act of Child —State- Gun — of Which Relief Can Be Granted. ment of Claim on by plaintiff alleged negligence who of action was stated Cause giving child, parent permitting in to minor gun unsupervised by adult, gun discharged use an when ehild to playmate injured while the hands a the child and 117.2). eye playmate (GCR 1963, of another Judgment Judgment Pleading—Affidavits. n t. Summary — — held, Summary judgment, improperly granted plain- in case where tiff’s stated a cause aetion defendant’s affidavits were not sufficient to shorv defend- precautions ant such exercised as to make unforeseeable (GCR 1963, 117.2).
Separate Opinion. J. Gillis, Negligence Dangerous 5. —Air Gun — Instrumentality Question — Jury. for by super- Whether air utilised son without adult defendant’s dangerous instrumentality jury vision held, was a a matter for by parent injured consideration in action who was being by playmate. while used Instrumentality Dangerous —BB Gun. 6. Same — The Court cannot assiime that BB used chil- im, dren case at bar were same hind as one held not to be a dangerous instrumentality years ago. in another case decided 75 Dangerous — — -- Instrumentality Population 7. Same BB Gun Density. Density population in the area is a to be considered factor determining imposed upon whether should be dangerous instrumentality the use a BB as a for permits when unsupervised he his minor child the gun. Appeal (Philip A.), from Berrien; Hadsell May Submitted 1966, Division at Grand Rapids. (Docket 1,018.) July No. Decided Whalen guardian Complaint by Whalen, Donald minor, and Donald Whalen, of Brian estate Bennett, Donald behalf in his own injuries an when Brian Whalen for sustained sons was dis- one of Bennett’s owned air charged. Summary defendant. Plain- appeals. for trial. and remanded Reversed tiff George Keller, for Doyle, (John Lilly, Bonow, File D. Piatt <&
Troff, counsel), for defendant. defendant in this case J. The Fitzgerald, aged at the father of two the time sons purchased He had 1960, of the accident involved. guns, given at two Christmas, to them designed propel commonly guns, as BB known *3 following Christmas, de- BB shot. months the handling boys in the use and fendant instructed the super- allowing guns, them under them to use they proficient use, their vision. As more became they guns parental to the off the were allowed take premises with- with and on some occasions consent, supervision. adult out guns boys BB 4, 1961, took the
On November breezeway their an rack in unlocked parental permission left home, plaintiff’s 9-year-old premises company age. the same Brian, and a fourth about son, following guns nearby They field, took the guns, horseplay, juvenile then some one boy, Davies, was of the fourth dis- the hands Chris striking right charged, Brian sight. eye, inflicting damage to his severe began on himself Plaintiff action behalf the father minor Donald Bennett, his son 4 Mici-i op the Court. boys his of the two who owned the amend complaint sought damages theory on the ed (CLS §§ 1961, 752.891, PA No 186 752.892, 28.436[42]), §§ Ann 28.436[41], Stat 1962 Rev duty statutory created on the of a permit away of a BB from his t.o supervision, domicile without adult and on the addi negligent boys theory tional of a entrustment dangerous instrumentality. asserting
A motion for inapplicable, the statutes were that as a matter dangerous law BB were not instrumentalities, proximate and that there was an absence of cause, granted by appeal claim the trial court from that order filed with this Court. appeal, questions On asked are whether BB dangerous instrumentalities na- of such a allowing
ture that a father, a minor access to one supervision, may charged neg- without adult ligence, making injuries by him liable another; supra, and, further, whether the cited, statute im- poses any liability question on him. The main appeal, appears however, to be whether defendant guilty of actionable on the state transpired they affairs as here, and whether cause of action has been stated question, The first that of whether a BB dangerous instrumentality, was settled ago the case Chaddock v. Plummer (14 Rep 283), LRA St specifically held instrumentality. that an was not a places great trial court re opinion quotes liance on this case and in its *4 following portion of that decision and comments thereon: “ may dangerous weapon ‘This be a ** certain sense. shot fired from it
a will The the Couet.. person, eye kill put small birds a and will out the in com- animals. These and some small every day over children; and mon Benton a dealer at in one season them were sold Harbor inhabitants]. village [in 3,700 a dangerous of chil- in the hands it is not more But toys. many other and a arrow than bow and dren hardly good this sense to hold be It would intrinsically dangerous obviously and air that it is put negligence a child in the hands of to years age.’ nine far the in- as the issue “This to seems decide has not been concerned, as that case case is stant If that decision to this date. or reversed
modified higher by a done it must be overruled, to court.” a over- that manifest however, us,
It seems to placed and on Chaddoch Case reliance has been holdings are not to be found it that to ascribed that the Chaddoch Case Indeed, it seems therein. . distinguished readily case at bar. from the can be purchased an air Chaddoch, defendant boy 9-year-old at was school son. While for his neighbor away home, was the defendant discovering gun, by, boy de- asked came gave wife, him, she to shot, for BB fendant’s along at a hen instruction that he shoot with put eye premises. coop out Plaintiff’s ricocheting that a BB court held shot. instrumentality, conclud- not following language: opinion ing its per opinion, my se “In it was place buy toy init the the defendant age; hands of nine his many intervening act without the too causes were buying knowledge between defendant, of the the injury, the defendant to hold had, his own son in this case. for its use liable in If accident, manner, contributed dif- *5 4 - Opinion the Court. express upon question I arise, would ferent supplied.) opinion.” (Emphasis no difference between Chaddoch Here, then, the Chaddoch, In neither the de- case at bar. the and fendant minor direct connec- nor his son injury resulting in to the incident the tion with the plaintiff. might of the role of be said Whatever party Chaddoch, not a wife she was carefully action. As stated Justice to the rests on the result reached Chaddoch Morse, express the as what with an disclaimer factor, there been show- been had result would have ing accident. contributed that the son had of defendant’s contribution connection instant case results sons to explicitly question presentation avoided of being true, Chaddoch court. This the Chaddoch presents of to consideration the facts no bar Case short, does in the instant matter. Chaddoch control. as follows: in issue reads
The statute spring, gas, regulate “An the use of certain act to provide penalty operated handguns or air and to for violation of this act. Michigan People enact: “The the State of of age person years shall 1. No under “See. handgun designed possess any manu-
use or factured exclusively propelling BB’s not ex- gas spring, ceeding air, .177 calibre means curtilage he is domicile unless of his outside age. accompanied by person over Any provisions person who violates the “Sec. guilty act of a misdemeanor.” of this appellants’ agree contention difficult to It is part liability on the this statute creates civil offending parent. directed toward It is may and while the minor himself, title the act v. Cotjkt. op the sufficiently legislature broad to infer that in- degree regulation tended those before fact us, remains that hard the statute is not couched toas create civil such terms parents offender. haveWe *6 little doubt but that the thrust of the statute was protect persons property, but sanctions imposed pre- are criminal and not do not civil, and application negligence sent a situation for per se rule.
Regarding negligence the matter whether can purchases be to a ascribed who and allows gun by to BB access his minor son, and whether person to a third is foreseeable from that only say canwe that the record is not “open granting and shut” as the of defendant’s ap- motion for would make it pear. Defendant that contends there was no fore- seeability, placing heavy point reliance on the only parental per- were be used frequently mission and that admonition repeated. deposition of defendant belies this conten- tion : you personally “Q. Now, did ever tell them that they premises could take the off the
you? talking your you. We’re not about but wife, “A. I’m not sure. gave “Q. you don’t You even know whether ever permission, way? them either “A. No.”
Defendant further cites the recent decision of this App Court in Muma v. Brown 1 Mich held that as matter law there was no foreseeability that a minor child would steal his parents’ keys cupboard automobile where they cup par- in a been secreted and drive the 4 the Coubt. injuring Chad- case, That like auto, ents’ parents distinguished, in that the
dock, can be practical pre- prudent measures to taken had vent access of their to the automobile minor son. depositions review of the A jury-submissible persuades that a case us
instant issue of motion for and that raised, fact is summary judgment not have should allegations granted. of a cause Sufficient been are found therein asser action for foreseeability not strike us a lack do tions import plaintiffs denied should right to have the case submitted. appellants. Costs to
Reversed and remanded.
J.
P.
concurred with
J.,
Fitzgerald,
Holbrook,
(concurring).
I
concur
Gtllis,
*7
majority opinion because
at in the
results arrived
issue
am
is
factual
I
instant case which should
convinced
jury.
presented to a
granting
motion for
The trial court
(1891),
Plummer
v.
relied on Chaddock
283).
Rep
(14
St
In the instant case we do not have description type weapon involved. gun.” refer a “BB hand types “Now, the number of mates of hand- operated high They air arms runs in the thousands. toy patterns, low-powered types
include for short- range target shooting types power use, and indoor enough ful for use small birds, rodents, ultra-precision types rivalling accuracy vermin, cartridge weapons of the best at short distances, finally, types powerful enough for deer and hunting.” boar H. B. W. Smith Gas, &Air, Spring p of World, Guns ‘air-guns’ loosely (as “The term used _ booh) every long title of this to mean arm projected which the bullets or missiles are compressed term Properly applied, air. however, the air-gun means a smooth, tvith a non-riflecl propellant compressed barrel in which the air.” Wesley (1955), p L. Air-Guns and Air-Pistols, jury, opportunity A should have the to ascertain particular type guns the fendant’s son. of air utilized the de- cannot
We assume that these were the same as those described court in years ago. Density the Chaddoch Case population of the area where the were utilized by jury. would be another factor to be considered ap- Reversed remanded for trial. Costs to pellants.