Charlton v. Jackson
| Decision Date | 02 June 1914 |
| Parties | ANNA V. CHARLTON, Respondent, v. ROBERT J. JACKSON et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. George H. Shields Judge.
AFFIRMED.
Judgment affirmed.
Glendy B. Arnold for appellants.
(1) The undisputed evidence shows that plaintiff was a bare licensee in the home of the defendants. The rule is well settled that the owner of premises owes to a licensee no duty as to the condition of such premises unless imposed by statute, save that he should not knowingly let him run upon a hidden peril or wantonly or wilfully cause him harm. The licensee enters upon the premises at his own risk and enjoys the license subject to its concomitant perils. 29 Cyc., 449; Barry v Cemetery Assn., 106 Mo.App. 358; Glaser v Rothschild, 221 Mo. 180; Butler v. Railroad, 155 Mo.App. 287; Menteer v. Scalzo Fruit Co., 240 Mo. 177; Ward v. Kellog, 64 Mo.App. 61. (2) It is not actionable negligence for the father to keep a shotgun in his home within easy access of his minor children. Such fact was certainly not a violation of any duty to plaintiff. O'Brien v. Loomis, 43 Mo.App. 29; Hagerty v. Powers, 66 Cal. 368; Swanson v. Crowdell, 2 Pa.Super. Ct. 85; Locker v. Ewald, 11 Ohio, S. & C. P. Dec. 337; Mamberg v. Bartos, 83 Ill.App. 481. (3) Parents are not liable for the independent torts of their minor children committed while not acting as their agents or servants and in which the parents do not participate as joint tortfeasors. Needles v. Burke, 81 Mo. 569; Baker v. Haldeman, 24 Mo. 219; Paul v. Hemmell, 43 Mo. 119; S. v. Saling, 21 Mo. 387; Dudley v. Maxwell, 131 Mo.App. 676; O'Brien v. Loomis, 43 Mo.App. 29; Broadstreet v. Hall, 10 L.R.A. (N. S.) 933; Hagerty v. Powers, 66 Cal. 368. (4) When the father and mother live together the father is the "natural guardian" of their minor children, and as such has the "care of their persons" and regulates and controls their moral conduct, and the mother has no legal authority over the children. She is entitled only to reverence and respect. R. S. 1909, sec. 403; 1 Blackstone Com., 453; Commonwealth v. Murray, 4 Binn. 487. (5) The wife is not liable for the husband's torts when he is not acting as her agent, and she is not liable for her own torts committed by her at the command and direction of her husband--he alone is liable. Dudley v. Houston, 58 Mo. 361; Flesch v. Lindsay, 115 Mo. 1; Bishop on Married Women, sec. 43; 2 Kent's Com., 149; 1 Blackstone Com., 453.
Campbell Cummings, George P. Burleigh and Dwight D. Currie for respondent.
(1) Robert J. Jackson and Laura Jackson, husband and wife, and parents of their co-appellant, Kenneth Jackson, are liable to the respondent for the reason that at the time of the injury to the respondent, and previous thereto, they had the control and custody of their minor son, Kenneth Jackson, and, although knowing his disposition and his predilection to the negligent handling of firearms, they permitted him to own, handle and use a deadly weapon, with which he injured respondent. Dixon v. Bell, 1 Starkie, 287, 5 Maule and S. 198; Johnson v. Glidden, 11 S.D. 237; Meers v. McDowell, 110 Ky. 926, 62 S.W. 1013-1014; Hoverson v. Noker, 60 Wis. 511; Phillips v. Barnett, 2 City Court Rep. (N. Y.) 20; Binford v. Earhart, 70 Iowa 285; Carter v. Town, 98 Miss. 567; Palm v. Iverson, 117 Ill.App. 535; 21 Am. and Eng. Ency. of Law (2 Ed.), 1057-1058; 29 Cyc. 1666. (2) Where the father and mother are living together they are jointly entitled to the custody of their children and either parent has a right to discipline their child and to enforce parental authority. 29 Cyc. 1585; Rowe v. Rugg, 117 Iowa 606; 29 Cyc. 1588. (3) All three of the appellants are jointly liable because their negligent acts combined so as to ultimately result in the injury to the respondent. The father's negligence consisted in allowing the boy to have possession of the gun while under his parental control, which control continued at all times, and the mother's negligence also consisted in permitting the boy to have possession of the gun and to continue to have possession of and access to it after he was left in her personal charge and control during the father's absence, during all of which time both father and mother knew of the boy's reckless disposition and immature years. This negligence of father and mother, combined with the boy's reckless handling of the loaded gun, completes the chain of negligent acts which resulted in the injury to the respondent, and each party who commits an act which goes to make up a series of acts resulting in injury to a third party is liable for such injury. Consolidated Ice Machine Co. v. Keiffer, 134 Ill. 481; Ferry Co. v. Nolan, 135 Ind. 60; Osage City v. Larkin, 10 Am. St. 186; Flaherty v. Railroad, 12 Am. St. 654; Cuddy v. Horn, 46 Mich. 596; Slater v. Mersereau, 64 N.Y. 138; Village of Carterville v. Cook, 129 Ill. 152; Railroad v. Shapleigh, 105 Ill. 364; 21 Am. and Eng. Ency. Law, pp. 496-7; Colgrove v. Railroad, 20 N.Y. 492; Barrett v. Railroad, 45 N.Y. 628; Schneider v. Railroad, 59 N.Y.S. 543; Compton v. Erie Bros., 124 N.C. 591; Shelton v. Railroad Co. & Tel. & Tel. Co., 89 Tenn. 423; Tel. & Tel. Co., v. Crank, 27 S.W. 38; Barnes v. Masterson, 39 A.D. 612; Joseph v. Electric Co. & Tel. Co., 104 La. 634; Horning v. Tel. Co., 95 N.Y.S. 625; Railroad v. Conery, 61 Ark. 381; Nagel v. Railroad, 75 Mo. 653; Bragg v. Railroad, 192 Mo. 231; Harrison v. Electric Light Co., 195 Mo. 606; Weathers v. Railroad, 111 Me.App. 315. (4) The question of whether the respondent was an invited guest, licensee of a trespasser at the time at which she received her injuries does not enter into the case. Appellant's cases in regard to defect in or dangerous condition of the premises are not in point. The injury was not caused by any defect in the premises. Moreover, even in the cases of dangerous premises or vicious animals, a duty is owing to licensees and even trespassers not to knowingly permit them to run upon a hidden peril. It was the duty of the appellants to keep a gun out of the hands of their son, who was of immature years and of a reckless and negligent disposition, and this duty they owed even to trespassers who were on the premises with their knowledge. 29 Cyc. 4430; Herrick v. Nickson, 121 Mich. 284.
This is a suit for damages accrued to plaintiff on account of the alleged joint and concurring negligence of the three defendants. Plaintiff recovered and defendants prosecute the appeal.
Plaintiff received her injuries through being shot in the right side, by means of a shotgun in the hands of defendant Kenneth Jackson, a minor, thirteen years of age. Kenneth Jackson is a defendant here, and the other two defendants are Robert J. Jackson, his father, and Laura Jackson, his mother.
It appears plaintiff resided adjoining and as immediate neighbor to the Jackson home. Friendly relations existed between the two families, and plaintiff was in the home of the Jacksons as a caller--that is, not an expressly invited guest, but to pay a social visit--at the time she was shot. Plaintiff, together with Mrs. Jackson and another lady, was in the dining room of the Jackson home when Kenneth Jackson entered with a shotgun and deliberately leveled and fired it at plaintiff. There is no suggestion in the case that plaintiff was intentionally or wantonly shot by defendant Kenneth Jackson, but the case proceeds on the grounds of negligence alone.
The petition avers, and the evidence tends to prove, that Kenneth Jackson was a reckless, indiscreet boy of thirteen years of age, wholly unfit to possess and control such a dangerous instrumentality as a shotgun. Notwithstanding this, Kenneth was permitted to own and control the gun, in that a neighbor had given it to him not long before, and his two codefendants--that is, his parents--permitted him and even his younger brother, to handle and use it. The negligence averred in the petition and relied upon throughout the case is the separate but concurring acts of the three defendants. The petition proceeds on the theory that as the father, Robert J. Jackson, is vested by law with the legal custody and control of the minor, he was derelict in permitting the boy to keep such a dangerous weapon, and that such control and custody devolved upon the mother, Laura Jackson, a few days theretofore because the father was absent from home, and she, too, was therefore likewise negligent. It appears the father was not at home at the time plaintiff was shot by the son and had not been at home for several days, being away on business. In this view, the petition charges defendant Robert J. Jackson was negligent in that he permitted his minor son to own and control a shotgun when he knew the boy was reckless and careless and highly indiscreet, and that defendant Laura Jackson, the mother, on whom the duty of control devolved in the absence of the father, was negligent, too, in permitting the son so known by her to be reckless, careless and indiscreet, to possess and control the gun in the absence of the father.
The evidence tends to prove all of the averments of the petition and the jury so found the fact to be by awarding a verdict against the three defendants.
There can be no doubt that one who has suffered an injury as a result of the separate negligent acts of several defendants which concur and co-operate together to produce it, may maintain his action against one or all of the defendants as he chooses. The proposition is not even a debatable one. [See Miller v. United Rys. Co., 155 Mo.App. 528, 134 S.W. 1045.]
It is a rule of the common law that a parent is not liable in damages...
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