Baker v. White

• Decision Date: 12 December 1933
• Parties: BAKER v. WHITE et al.
• Court: Kentucky Court of Appeals

65 S.W.2d 1022

251 Ky. 691

BAKER v. WHITE et al.

Court of Appeals of Kentucky

December 12, 1933

Appeal from Circuit Court, Bell County.

Action by Robert Baker, an infant, by his father and next friend John N. Baker, against L. B. White and another. From a judgment dismissing the petition, plaintiff appeals.

Affirmed.

R. L Pope and J. D. Pope, both of Knoxville, Tenn., and J. M Gilbert, of Pineville, for appellant.

W. T. Davis, of Pineville, for appellees.

CREAL Commissioner.

Robert Baker, an infant, by his father and next friend, instituted this action against L. B. White and the Middlesboro Hardware Company, a corporation, seeking to recover damages for personal injuries resulting from the explosion of a firecracker alleged to have been sold by defendant in violation of an ordinance of the city of Middlesboro.

According to the allegations of the petition, the Middlesboro Hardware Company is engaged in wholesale and retail business, selling all kinds of hardware, arms, ammunition, etc., in the city of Middlesboro, and L. B. White is engaged in the retail mercantile business therein. In October, 1930, the Middlesboro Hardware Company from its place of business sold to its codefendant several packages of firecrackers, and thereafter, about the 20th day of December following, the latter, from his place of business in the city, sold and delivered a quantity of such firecrackers to Eskey and Estill Lorton, infants. On the following day the Lorton boys went to the home of plaintiff, and, while there, one of the Lorton boys and plaintiff placed a firecracker in a bottle, and, while attempting to light same, it exploded bursting the bottle, destroying plaintiff's right eye, necessitating the removal of plaintiff's right eyeball and greatly impairing the vision of his other eye. For the alleged injuries and consequent pain and suffering, the petition prays damages in the sum of $10,000. It is further alleged in the petition that, at the time such sales were made, an ordinance which had theretofore been adopted, making it unlawful to sell, give away, barter, set off, or discharge fireworks of any description in the city of Middlesboro, was in full force and effect, and that the sale by each of the defendants was unlawfully, wrongfully, and intentionally made in direct violation of such ordinance.

Defendants filed separate demurrers to the petition which were sustained, and, plaintiff declining to further plead, the petition was dismissed, and he is appealing.

Aside from the averment of the petition that the sale of firecrackers was made in violation of the city ordinance, it does not charge appellees with any negligence or violation of duty toward appellant. The cause of action attempted to be set up is rested solely upon the alleged violation of an ordinance forbidding the sale of fireworks within the city and prescribing a penalty for its violation, and not upon any act or conduct, which, independent of the ordinance, would render appellees liable for damages resulting from such a sale. It is argued by counsel for appellant in effect that the petition states a good cause of action, in that it charges (1) that appellant is an infant of very tender years, and (2) that the sale was made in violation of the ordinance. Counsel enter into a discussion of the care due children of tender years, and especially with respect to placing explosives or other dangerous instrumentalities in their hands, and cite authorities bearing on the liability of persons exposing them to such dangers. The doctrine announced in the authorities cited is recognized and adhered to in this and practically all other jurisdictions, but it follows from what has already been said with regard to the allegations of the petition that it has no application here, since nothing is said as to the age or immaturity of the Lorton boys, except that they were infants.

Argument that injuries following a sale in violation of the city ordinance gives a cause of action to the person injured is predicated on the provisions of section 466, Kentucky Statutes, which reads: "A person injured by the violation of any statute may recover from the offender such damage as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed."

In a number of cases it has been held by this court that, by virtue of the quoted section of the statute, a person injured as a result of a violation of another section of the statute has a cause of action against the offender. Pirtle's Adm'r v. Hargis Bank & Trust Company et al., 241 Ky. 455, 44 S.W.2d 541, and cases therein cited.

Therefore it is apparent that the only question to be determined is whether a city ordinance is a "statute" within the purview of the quoted section of our statutes. That section was enacted at the 1892 session of the General Assembly as section 21 of an act concerning the construction of statutes. Acts 1892, c. 107, § 21. In determining the legislative will and meaning in its enactment, courts are not restricted to the language of that particular section, but may look to the act as a whole as well as to the conditions of the laws of the state in force at the time of its passage, and to such other prior or contemporaneous facts and circumstances as may throw light on the intention of the Legislature. Panke v City of Louisville...