Brittingham v. Stadiem

• Decision Date: 18 November 1909
• Parties: BRITTINGHAM v. STADIEM et al.
• Court: North Carolina Supreme Court

66 S.E. 128

151 N.C. 299

BRITTINGHAM v. STADIEM et al.

Supreme Court of North Carolina

November 18, 1909

Appeal from Superior Court, Guilford County; Moore, Judge.

Action by J. C. Brittingham against B. Stadiem and another. Judgment for plaintiff, and defendants appeal. Affirmed.

The utmost caution must be exercised by persons having the possession and control of dangerous instruments, such as firearms, that harm may not come to others from contact with them; the degree of care being commensurate with the dangerous character of the article.

The plaintiff sued the defendant to recover damages for injuries received by him while on business in the store owned by the female defendant, B. Stadiem, from a pistol shot wound inflicted by the 12 year old son and an employé of the defendants, while carelessly handling the pistol. The defendant denied all the allegations of the complaint, and the matters at issue were presented to the jury in two issues, to wit: (1) Was the plaintiff injured by the negligence of the defendant, as alleged? (2) What amount of damages, if any, is the plaintiff entitled to recover? The jury having responded to the first issue "Yes," and to the second issue, "$350," judgment was rendered against the defendants, from which they appealed to this court.

J. A Barringer, for appellants.

Stern & Stern and Taylor & Scales, for appellee.

MANNING J.

If the feme defendant, Bettie Stadiem, is answerable to the plaintiff for the damages resulting from the tort alleged then the defendant D. Stadiem, her husband, living with her at the time, is jointly liable. Revisal 1908, § 2105; Roberts v. Lisenbee, 86 N.C. 136, 41 Am. Rep. 450. The tortious act alleged having been committed by Moses Stadiem, the 12 year old son of the defendants, the first question presented is the liability of the defendants by virtue of this relationship. "Relationship does not alone make a father answerable for the wrongful acts of his minor child. There must be something besides relationship to connect him with such acts before he becomes liable. It must be shown that he approved such acts, or that the child was his servant or agent." Johnson v. Glidden, 74 Am. St. Rep. 795, in the note to which a large number of the decisions of the American courts are collected by Mr Freeman; Mirich v. Suchy, 74 Kan. 715, 87 P. 1141; Chastain v. Johns, 120 Ga. 977, 48 S.E. 343, 66 L. R. A. 958; Evers v. Krouse, 70 N. J. Law, 653, 58 A. 181, 66 L. R. A. 592; 21 Am. & Eng. Enc. 1057. Wherever the principles of the common law prevail, this is the well-established doctrine. If there were in this case nothing more than the relationship to connect the parent with the wrongful act of his child, we would be constrained to reverse the judgment and hold that defendants were not liable. The complaint, however, proceeds upon a twofold theory, and evidence was produced at the trial to support it, to wit: (1) That the boy, Moses Stadiem, was the servant and employé of the defendant, doing work in the store as clerk, and the injury to plaintiff was caused by the negligent and careless act of this servant, while about his master's business and while doing an act he was directed to do. (2) That the defendant, as a part of her business, conducted a pawnbroker's shop, and received in pawn various articles, among them pistols, which she also carried in stock for sale, and that these dangerous weapons were carelessly and negligently permitted to lie on the counters and in the windows of the store, within reach of a boy of the size of Moses Stadiem, and that he "fooled with them."

The immediate circumstances of the injury are thus described by the plaintiff: "I went into the store to pawn my watch. I was to receive $7. The man went to get the money for me and laid it down on the counter, and, just as I was in the act of picking it up, a pistol went off. The ball hit the counter just in front of me, struck my little finger, went through left thumb, went into my right hand, and lodged at the base of my third finger, where it was immediately afterwards cut out. I turned to see where the shot came from, and there was a boy standing in front of me with the smoking pistol in his hand. At the time I was shot, Stadiem grabbed the boy and told him: 'I have been telling you about fooling with pistols."' The plaintiff further testified that the boy had been waiting on customers, and asked his father what he was going to let him have on the watch. Another witness for the plaintiff testified that he had seen the boy in the store, selling goods and handling them, and behind the counter, and that there were a lot of guns and pistols lying on the counters and in the windows, so that anybody that wanted to could handle them. The boy, Moses, testified: That a man came to pawn a pistol. Then plaintiff came in. "Before loaning the money, we wanted to see whether it was all right. I snapped it to see," and it fired. Phelps, another clerk in the store, stated: That, while he was making out the pawn ticket, he told the boy to bring the pistol to him, and, while he was bringing it, it fired; that the man who pawned it said it was not loaded; that he did not examine it, but laid it on the counter and was waiting on plaintiff. The evidence...