Carron v. Guido

Decision Date29 May 1934
Docket Number6100
Citation54 Idaho 494,33 P.2d 345
PartiesANGELO CARRON and BERENICE CARRON, His Wife, Appellants, v. SAM GUIDO, Respondent
CourtIdaho Supreme Court

NEGLIGENCE-SALE OF AMMUNITION TO MINOR-PROXIMATE CAUSE-UNLAWFUL ACT - NEGLIGENCE PER SE - HUSBAND AND WIFE-AGENCY-PROOF-QUESTION FOR JURY-MOTION FOR NONSUIT.

1. In action for death of boy shot by another boy with ammunition purchased at defendant's store, motion that defendant's wife who sold the ammunition be made party defendant on ground that full determination of case could not otherwise be made, held properly denied where it was unnecessary to protect her rights or for complete determination of controversy (I. C. A., sec. 5-324).

2. In action for death of boy shot by another boy with ammunition purchased at defendant's store, facts recited in count distinguished from conclusions, did not show negligence, so that evidence thereunder was properly excluded.

3. Motion for nonsuit admits truth of plaintiff's evidence and of every fact which it tends to prove or which can be gathered from any reasonable view of evidence and plaintiff is entitled to benefit of all inferences in his favor which jury would have been justified in drawing, had case been submitted to them.

4. Intervention of third person or of other and new direct causes does not preclude recovery if injury was natural or probable result of original wrong.

5. Violation of law intended for protection of a person and others like situated, which results in his injury and is proximate cause of it, is negligence per se 6. Whether store owner's wife, who sold to boys ammunition which resulted in accidental death of boy, was agent of store owner held for jury.

7. Husband may constitute his wife his agent and render her acts within scope of her apparent authority binding on him.

8. Agency need not be established by production of contract or other direct proof, but it may be inferred from all facts and circumstances in evidence, including conduct of parties.

9. When evidence tends to show agency existed, question whether it did exist is for jury.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Guy Stevens, Presiding Judge.

Action for damages. Judgment of nonsuit. Reversed.

Reversed and remanded with direction. Costs awarded to appellants.

F. E Tydeman, for Appellants.

The respondent was guilty of negligence.

In making the sale a law was violated. It was negligence per se. The sale was made by the servant, agent, or employee of respondent, and he was liable for the results of their acts. (Sec. 17-7215, I. C. A.; 45 C. J. 720, 726; Curoe v. Spokane etc. Ry., 32 Idaho 643-647, 186 P. 1101, 37 A. L. R. 923; Smith v. Oregon Short Line Ry. Co., 32 Idaho 695-699, 187 P. 539; Brixley v. Craig, 49 Idaho 319, 288 P. 152; Hopkins v. Droppers, 184 Wis. 400, 198 N.W. 738, 36 A. L. R. 1156, 1160.)

Access to the stock of goods, her possession thereof and the fact that she sold the shells is sufficient to prove that the wife of respondent was acting as his agent or servant, and he was charged with liability for her tort. (Flaherty v. Butte Elec. Ry. Co., 43 Mont. 141, 115 P. 40-43; Dibble v. San Joaquin L. & P. Co., 47 Cal.App. 112, 190 P. 198, 199; Jessin v. Peterson, Nelson Co., 18 Cal.App. 349, 123 P. 219.)

The defendant is liable under the circumstances in this case for the acts of his wife. (Fulton Inv. Co. v. Farmers' Reservoir & Irr. Co., 76 Colo. 472, 231 P. 61; Kirkhart v. United Fuel Gas Co., 86 W.Va. 79, 102 S.E. 806.)

Acts within the apparent scope of an agent's authority are binding on the principal. (Bevercombe v. Denney & Co., 40 Idaho 34, 231 P. 427; Madill v. Spokane Cattle Loan Co., 39 Idaho 754, 230 P. 45.)

The sale was the proximate cause of the accident. There were no intervening causes. It was not necessary that the evidence show absolutely and without qualification that the negligence of the defendant was the proximate cause of the accident. The question is only whether there was sufficient evidence to make it necessary for the court to deny the motion for nonsuit. Where on question of proximate cause men's minds may honestly differ, it should always be submitted to the jury. (Tendoy v. West, 51 Idaho 679, 9 Pac (2d) 1026.)

The evidence showed that the sale was the proximate cause of the accident. (Scrivner v. Boise Payette Lumber Co., 46 Idaho 334, 268 P. 19; Antler v. Cox, 27 Idaho 517-527, 149 P. 731; 45 C. J. 909, 902, 920; 62 C. J. 1115; Terry Dairy Co. v. Nalley, 146 Ark. 448, 225 S.W. 887, 12 A. L. R. 1208.)

Merrill & Merrill, for Respondent.

The mere relationship of husband and wife or parent and child is insufficient to establish agency. (Hopkins v. Droppers, 184 Wis. 400, 198 N.W. 738, 36 A. L. R. 1156.)

A husband is not liable for the torts of his wife nor minor child if he did not participate therein. (Norris v. Corkill, 32 Kan. 409, 4 P. 862, 49 Am. Rep. 489; Murray v. Newmyer, 66 Colo. 459, 182 P. 88; Schuler v. Henry, 42 Colo. 367, 94 P. 360, 14 L. R. A., N. S., 1009.)

The selling of the cartridges was not the proximate cause of injury to the appellants. (Hartnett v. Boston Shoe Store, 265 Ill. 331, 106 N.E. 837, L. R. A. 1915C, 460; Seith v. Commonwealth Elec. Co., 241 Ill. 252, 89 N.E. 425, 132 Am. St. 204, 24 L. R. A., N. S., 978.)

The violation of this kind of statute affords no action for negligence unless it is alleged and proved that the violation (here sale to minor) was the proximate cause of the injury. (Kelly v. Troy Laundry Co., 46 Idaho 214, 267 P. 222; George v. McManus, 27 Cal.App. 414, 150 P. 73; Tendoy v. West, 51 Idaho 679, 9 P. 2d 1026.)

MORGAN, J. Givens, Holden and Wernette, JJ., concur. Budge, C. J., dissents.

OPINION

MORGAN, J.

Appellants commenced this action against respondent to recover damages for the death of their son, 12 years old, who was accidentally shot and killed by a boy named Johnson, 13 years old, with ammunition purchased by the boys at respondent's store. The trial resulted in a judgment of nonsuit, from which this appeal was taken.

After the action was commenced, and prior to trial, appellants moved that respondent's wife, who sold the ammunition during her husband's absence from the store, be made a party defendant. The motion was overruled and the ruling is assigned as error. The reason for the motion is stated therein as follows:

"This motion is made upon the files, records and proceedings had herein and for the reason that the verified complaint herein shows that a full determination of the case cannot be had unless Carmela Guido is made a party defendant."

"I. C. A., sec. 5-324, provides:

"The court may determine any controversy between parties before it when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties the court must then order them to be brought in, . . . ."

Assuming respondent's wife would have been a proper party defendant she might have been sued with her husband. No fact is shown to have been brought to appellants' knowledge, bearing on the right to make her a party to the action, after it was commenced. It does not appear to have been necessary to make her a party in order to protect her rights, nor in order that there might be a complete determination of the controversy existing between appellants and respondent. The denial of the motion was not error.

The complaint contained two counts, in the first of which appellants sought to recover on the theory that respondent was liable for the death of appellants' son because he sold the boys a quantity of 22-caliber cartridges, with one of which their son was killed, and that the selling was in violation of I. C. A., sec. 17-2715, which makes it a misdemeanor to sell or give to any minor, under the age of sixteen years, any gunpowder, dynamite or other explosive, or any shells or fixed ammunition of any kind, or any firearms of any description, without the written consent of the parents or guardian of such minor first had and obtained. The second count was based on the theory that respondent kept the cartridges in a place easily accessible to minors and that he knew, or should have known, of their dangerous character and the likelihood of the boys being injured by them.

Respondent objected to the introduction of testimony on the ground that neither count stated sufficient facts to constitute a cause of action. The objection was overruled as to the first count and sustained as to the second.

Appellants complain of the ruling on the second count. It is alleged therein that respondent had in his place of business certain pistol and rifle cartridges which were highly dangerous when in possession of persons less than sixteen years of age and unfamiliar with their use; that he knew, or should have known, of their dangerous character, and negligently allowed them to remain in his stock of goods where they were kept on open shelves, easily accessible, and that he negligently allowed and caused some of them to come into possession of appellants' son and the other boy, who were less than sixteen years of age, and that as a direct result of such negligence on respondent's part appellants' son was killed by the explosion of one of the cartridges.

The facts recited in the second count, distinguished from conclusions, do not show negligence on respondent's part. The ruling complained of was correct.

The acts of the court sustaining the motion for nonsuit and entering judgment of dismissal are assigned as error.

"A motion for nonsuit admits the truth of plaintiff's evidence and of every fact which it tends to prove or which can be gathered from any reasonable view of it,...

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