Driesse v. Verblaauw

• Decision Date: 29 January 1931
• Citation: 153 A. 388
• Parties: DRIESSE v. VERBLAAUW.
• Court: New Jersey Supreme Court

153 A. 388

DRIESSE

v. VERBLAAUW.

Supreme Court of New Jersey.

Jan. 29, 1931.

Action by Marinus Driesse, general administrator and administrator ad prosequendum of the estate of Aaron Driesse, deceased, against Tunis Verblaauw. On motion to strike out complaint.

Motion denied.

Louis C. Friedman, of Paterson, for plaintiff.

Jacob Stam, of Paterson, for defendant.

MACKAY, S. C. C.

The complaint in this case alleges that Marinus Driesse was duly appointed administrator ad prosequendum and general administrator of the estate of Aaron Driesse, deceased.

Tunis Verblaauw, the defendant, owned and operated a hardware store at Prospect Park, Passaic county, N. J., and had in his employ a clerk who acted as salesman and sold goods and merchandise for him. At a time when this employee was in charge of the store and defendant was not present in person, one Nicholas Sinning, fifteen years of age, went to defendant's store on March 29, 1930, with a 22 caliber revolver and purchased three boxes of loaded cartridges, known as 22-caliber Shorts, for the sum of 75 cents, without the permission of his parents and in violation of chapter 225 of the Laws of 1912, which makes it a misdemeanor to sell cartridges of this kind to a hoy under the age of sixteen years without the written consent of his parents. The defendant claims that while his clerk was in charge of the store two young men entered who appeared to be well over age; that one of them exhibited a revolver for which he ordered cartridges for target practice; that these young men engaged in target practice; that when they finished, one of the young men, Sinning, by name, put the gun in his pocket and they then had a friendly wrestling match, in the course of which the gun went off and wounded the other young man Driesse, who died the following day, March 30, 1930, from the bullet wound received.

The following allegations are set out in the first count of the complaint: That the natural and proximate cause of the death of Aaron Driesse was the violation of the statute, etc; that Aaron Driesse left him surviving certain persons; and that the action has been commenced within twenty-four calendar months from the date of death.

The second count charges that defendant employed an incompetent servant whose incompetency was well known to the defendant from the date of his hiring to the time of the selling of the cartridges in question; that he permitted the incompetent clerk or employee to have control and possession of dangerous instrumentalities and sell and dispose of the same to minors without the minors' parents' consent; that the defendant negligently, carelessly, and wrongfully failed to advise his servant (the employee) of the inherent danger of the loaded cartridges and ammunition which was in the store, and carelessly, negligently, and wrongfully permitted dangerous instrumentalities to be within reach of his servant or employee; that the defendant carelessly, negligently, and wrongfully permitted a minor to be in charge of dangerous instrumentalities in his store in his absence, knowing that the minor in charge of his store would dispose of the cartridges, and carelessly, negligently, and wrongfully failed to advise the minor or employee in charge in his absence not to sell any loaded cartridges to minors, and carelessly, negligently, and wrongfully permitted dangerous instrumentalities to get into the hands and possession of Nicholas Sinning, a minor inexperienced in the handling of firearms, loaded cartridges, etc., and by reason thereof Nicholas Sinning purchased three boxes of cartridges.

The third count pleads the paragraphs in the first and second counts and then claims damages as general administrator, the claims in the first and second counts being those of the administrator ad prosequendum for damages.

The defendant contends that the complaint should be struck out because:

(1) The complaint admits that the defendant was not present and in charge of the hardware store at the time of the alleged sale of cartridges.

(2) The natural and proximate cause of the death of plaintiff's intestate, Aaron Driesse, could not have been the alleged violation by the defendant of the statute set forth in paragraph 13 of the first count (and likewise in the subsequent counts), in that the complaint shows that the defendant did not violate the statute, but the complaint alleges facts to show that defendant's clerk violated the statute.

(3) The natural and proximate cause of the aforesaid death was not the alleged violation of the statute by the defendant and/or his clerk, because of the intervention of an independent human agency, in that the aforesaid death was caused by one Nicholas Sinning, as described in paragraph 11, first count, of the complaint.

(4) The section of the Crimes Act recited does not require parents' permission for the sale of cartridges but only for the sale of the revolver. The complaint does not allege how the gun came into Sinning's possession; does not allege that it came into his...