Charlton v. Jackson

• Decision Date: 02 June 1914
• Docket Number: No. 13665.,13665.
• Citation: 167 S.W. 670,183 Mo. App. 613
• Parties: CHARLTON v. JACKSON et al.
• Court: Missouri Court of Appeals

167 S.W. 670

183 Mo. A. 613

CHARLTON v. JACKSON et al.

No. 13665.

St. Louis Court of Appeals. Missouri.

June 2, 1914.

Rehearing Denied June 17, 1914.

1. ACTION (§ 50*) — TORTS — JOINDER OF DEFENDANTS.

One who has suffered an injury as the result of the separate negligent act of several defendants, which concur and co-operate to produce it, may maintain an action against one or all of the defendants at his election.

2. PARENT AND CHILD (§ 13*) — TORTS OF CHILD — LIABILITY OF PARENT.

Though a parent is not liable at common law for the torts of his children committed without his knowledge, consent, participation, or sanction, and not in the course of his employment of the child, he may be liable for negligence touching his control of the child in permitting him to use dangerous weapons inimical to the safety of others.

3. PARENT AND CHILD (§ 13*) — TORTS OF CHILD — LIABILITY OF PARENTS.

Defendants, father and mother of a son 13 years of age, with knowledge that he was reckless, and without ordinary discretion, permitted him to have a shotgun. On a previous occasion the boy, with the knowledge of the parents, had pointed the gun at plaintiff, a neighbor, and plaintiff had reprimanded him therefor. During the absence of the boy's father, plaintiff called, and, while in the house, the boy entered the dining room with the gun and deliberately leveled and fired it at plaintiff, causing the injuries complained of. Held, that the father was negligent in permitting the boy to use the gun with knowledge of his propensities, and the mother was also negligent in permitting the child to use the gun during the father's absence, and both were liable for the injuries sustained.

4. PARENT AND CHILD (§ 13*) — INJURY TO UNINVITED GUEST — USE OF WEAPON BY CHILD.

Where plaintiff, as an uninvited guest, went to defendants' house to make a social call she was entitled, even had she been a trespasser, to protection against injury by the negligent use of firearms by defendants' minor son.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by Anna V. Charlton against Robert J. Jackson and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Glendy B. Arnold, of St. Louis, for appellants. Campbell Cummings, Geo. P. Burleigh, and Dwight D. Currie, all of St. Louis, for respondent.

NORTONI, J.

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, 13 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 13 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...