Capps v. Carpenter

• Decision Date: 11 January 1930
• Docket Number: 28,997
• Citation: 129 Kan. 462,283 P. 655
• Parties: CARROL CAPPS, a Minor, etc., Appellee, v. A. B. CARPENTER, Appellant
• Court: Kansas Supreme Court

283 P. 655

129 Kan. 462

CARROL CAPPS, a Minor, etc., Appellee, v. A. B. CARPENTER, Appellant

No. 28,997

Supreme Court of Kansas

January 11, 1930

Decided January, 1930.

Appeal from Crawford district court, division No. 1; LELAND M RESLER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PARENT AND CHILD--Liability for Torts of Child--Knowledge of Child's Malignant Disposition. A. B. Carpenter gave his son Joe, eight years old, a gun shooting steel shot BB size, expelled by a spring compressed by a lever and released by a trigger, the gun having the general appearance of the familiar "air gun." While Joe was playing with a playmate, Carrol Capps, who was nearly seven years old, Carrol's right eye was injured, and Carrol sued Joe's father for damages. The petition alleged that Joe was not only mischievous, but also cruel, treacherous, selfish, arbitrary, domineering, and prone and inclined to impose on, chastise, and inflict punishment on his playmates; that Carpenter knew or should have known of Joe's propensities; and that Joe said to Carrol, "You turned my rabbit out, and I'm going to shoot your eye out," whereupon Joe shot Carrol in the right eye. Carelessness or incompetence in use of the gun was not charged. Held, the court improperly submitted to the jury the nature of the gun as a dangerous agency, the essence of the cause of action being not the nature of the chattel, but whether Joe had such a malignant disposition he would likely shoot some playmate if he had the gun, and his father knew or from known facts should have known of the disposition.

2. SAME -- Knowledge of Child's Malignant Disposition -- Evidence of Particular Manifestations. Evidence of particular manifestations of malignant disposition toward playmates was admissible, provided the instances were strictly relevant and of marked significance. Trivial instances of rough behavior toward playmates were not admissible.

3. SAME--Knowledge of Child's Malignant Disposition--Admissibility of Evidence as to Reputation. Joe's reputation for possessing a malignant disposition was admissible to show his father knew or should have known of the disposition. Evidence of reputation for possessing other propensities was not admissible.

A. H. Carl, of Pittsburg, and John A. Hall, of Pleasanton, for the appellant.

C. S. Denison, E. V. Bruce, Carrie S. Denison, all of Pittsburg, and S. H. Allen, of Topeka, for the appellee.

Burch J. Jochems, J., not participating.

OPINION

BURCH, J.:

The action was one by Carrol Capps, a minor, against A. B. Carpenter, for damages for personal injury inflicted by Carpenter's minor son, Joe Carpenter. Plaintiff recovered, and defendant appeals.

Carpenter permitted Joe to have and use a spring gun. It was of the size, weight and appearance of the familiar "air gun," but the missile, a steel shot BB size, was expelled by a spring compressed by a lever and released by a trigger. In target shooting the shot would penetrate a paper put on a post for the target. Sometimes a shot would dent the wood. Sometimes a shot would bury in the wood--texture of the wood and distance of the gun from the target not stated. The gun was not a firearm, did not belong to any branch of the weapon family, and was used for diversion and amusement. Because such articles are called "guns," boys who receive them as gifts become persons of importance to themselves and their playmates; but compared to guns, they are toys.

At the time of the injury Carrol was nearly seven years old and Joe was eight. The boys were sitting in a porch swing at the Carpenter home. Carrol screamed, jumped out of the swing, and ran home. He had sustained an injury to his right eye. The petition pleaded that Joe was not only mischievous, but was also cruel, treacherous, selfish, arbitrary, domineering, and prone and inclined to impose upon, chastise, and inflict punishment on his playmates and associates near his own age; that Joe's father knew or should have known Joe's disposition and habits; that, nevertheless, Joe's father gave him a dangerous agency, the gun. The petition also contained the following:

"That on or about the 16th day of July, 1927, this plaintiff, as a playmate of defendant's said minor son, was sitting in a lawn swing on defendant's premises, conversing with said defendant's said minor son. That said defendant's son had said air gun in his hands while so sitting in said swing, as aforesaid. That said defendant's minor son thereupon and while in said swing, pointed said air gun at this plaintiff, and told this plaintiff to 'stick 'em up,' and further said, 'you turned my rabbit out, and I'm going to shoot your eye out.' Thereupon defendant's said son pointed said air gun at plaintiff's right eye, shot plaintiff in said right eye with said gun, . . ."

At the trial Carrol testified substantially in the language of the petition. A girl scrubbing the porch of a house next to the house directly across the street testified she heard Joe say "I'm going to shoot you," and testified Carrol jumped out of the swing "hollering with his eye, said he shot him in the eye."

There was no dispute that the swing was four feet long, its seat was sixteen inches deep, and the swing hung by chains from the porch ceiling and tilted easily. Joe said Carrol had the gun when he was hurt, Joe was watching a boy on the street, and he did not know how Carrol got hurt. When produced at the trial, the end of the gun barrel was split, so that two angular corners were slightly exposed. There was evidence that the gun was in the same condition as it was when the injury occurred, but there was some evidence indicating the spring and trigger of the gun might have been removed after the injury. Joe was sitting on the right side of Carrol when Carrol was injured. The gun itself is approximately three feet long. Joe was in the habit of using the gun, and the proof was that he shot left-handed because his right eye was crossed.

Plaintiff neglected to call as a witness the physician who treated Carrol's eye, or any other witness to prove the nature of the wound. Called by defendant, the physician testified the eye was cut by a piece of metal, or something which would cut, and the wound could not have been caused by a BB shot or bullet of any kind. The wound healed in the ordinary way, and the cut, which was about seven-sixteenths of an inch long, was such that it would leave a scar. At the request of the court, the physician looked at Carrol's eye, and testified he could still see the cut across the eye. He said, "You can see the scar now." No witness, lay or expert, disputed the physician's testimony, unless Carrol did, who, when describing the occurrence, said, "It kinda blew my eye out on my cheek."

In order to show that Joe was a boy who would likely inflict bodily harm, testimony of specific acts was introduced, and in order to show that Joe's father knew or should have known he was a boy who would likely inflict bodily harm, testimony of his general reputation was introduced.

The court instructed the jury as follows:

"11. You are instructed that if you find from the evidence in this case that about July 1, 1927, the defendant, A. B. Carpenter, gave his minor son, Joe Carpenter, a dangerous agency or weapon commonly known as an air gun, said gun being designed to and it did shoot, with great force and violence, shot and bullets, and permitted his minor son to use said air gun in and about his home and neighborhood where said defendant and minor son resided, and you further find that at the time of giving said dangerous agency or weapon to his minor son he knew, or had knowledge either express or implied, that his minor son was mischievous, treacherous, selfish, arbitrary, domineering, and inclined to impose upon, chastise and inflict punishment upon his playmates and associates of about his own age, and knowing the disposition and habits of his minor son, permitted his said minor son to use said dangerous weapon in and about his home and neighborhood where said defendant and his minor son resided, such acts and conduct on the part of the defendant A. B. Carpenter would be negligence, and he would be liable to respond in damages for any injury that resulted therefrom."

The jury returned special findings of fact:

"Q. 1. Was A. B. Carpenter present at the time the injury occurred? A. Not in person.

"Q. 3. State the act of negligence on the part of A. B. Carpenter which resulted in the injury. A. By giving his son a dangerous weapon commonly known as an air gun.

"Q. 4. Did A. B. Carpenter consent to the act by Joe Carpenter which caused the injury? Yes, by implied consent.

"Q. 5. By what word or act did A. B. Carpenter express his consent that Joe Carpenter do the act which caused the injury? A. Negligent act, by giving him the gun.

"Q. 6. Was Joe Carpenter under the direction and control of A. B. Carpenter at the time of the injury? A. Yes, by implied control."

The court should not have permitted the subject of dangerous agency to go to the jury. The gun was not a dangerous agency and defendant's negligence did not consist in giving his son a dangerous agency, as the jury found. The gun was just what it was in the hands of the dealer who sold it, and in the hands of Joe's father, and was just what it would have been in the hands of an experienced hunter. A boy's sword of lath can injure an eye, and innumerable toys and house and garden and farm articles, utensils and implements are capable of inflicting serious bodily injury. That does not make them dangerous instrumentalities. In order to lay a foundation for liability of a father for accident occurring while his minor son was driving the father's automobile, some courts...