Ellis v. D'Angelo

• Decision Date: 27 February 1953
• Citation: 116 Cal.App.2d 310,253 P.2d 675
• Parties: ELLIS v. D'ANGELO et al. Civ. 15173.
• Court: California Court of Appeals Court of Appeals

Page 675

253 P.2d 675

116 Cal.App.2d 310

ELLIS v. D'ANGELO et al.

Civ. 15173.

District Court of Appeal, First District, Division 2, California.

Feb. 27, 1953.

Hearing Denied April 27, 1953.

Shirley, Saroyan, Calvert & Sullivan, San Francisco, for appellant.

Alexander, Bacon & Mundhenk, San Francisco, Herbert Chamberlin, San Francisco, for respondent.

DOOLING, Justice.

The plaintiff appeals from a judgment for the defendants entered after a demurrer was sustained to her first amended complaint without leave to amend. The complaint is in three counts. Count one alleges a battery by defendant Salvatore D'Angelo, a minor of the age of four years; the second count alleges injuries suffered by the plaintiff as the proximate result of the minor defendant negligently shoving and pushing the plaintiff violently to the floor; the third count seeks a recovery from the parents of the child for their negligence in failing to warn or inform plaintiff of the habit of the child of violently attacking other people. According to the allegation the plaintiff was by the minor defendant 'pushed, impelled and knocked * * * violently to the floor' and suffered serious injuries including a fracturing of the bones of both her arms and wrists.

The two counts against the minor will be discussed together. Appellant points to the language of Civil Code, section 41: 'A minor, or person of unsound mind, of whatever degree, is civilly liable for a wrong done by him, but is not liable in exemplary damages unless at the time of the act he was capable of knowing that it was wrongful.'

This section is based upon sections 23 and 24 of the Field Commission's draft of a Civil Code which was submitted to the New York Legislature in 1865. This may be an anachronistic vestige of earlier common law principles, in other fields now outmoded, of liability without fault for trespass vi et armis (see Bohlen, Liability In Tort Of Infants And Insane Persons, 23 Mich.L.Rev. 9) but it remains true that our legislature in Civ.Code, sec. 41 above quoted by providing that a minor or person or unsound mind is civilly liable for wrongs done by him, and particularly by the qualification that he shall not be held for exemplary damages unless he was capable of knowing that the act was wrongful, has indicated clearly that it intended that a minor or person of unsound mind should be liable in compensatory damages for his tortious conduct even though he was not capable of knowing the wrongful character of his act at the time that he committed it. Startling as this idea may be at first blush, we are bound by this legislative declaration and taking it, and the state of the common law with relation to the liability of infants and persons of unsound mind of which it was intended as a codification, it is our duty to determine the legislative intent and to enforce it.

It is generally stated in 27 Am.Jur., Infants, sec. 90, pp. 812-813: 'Liability of an infant in a civil action for his torts is imposed as a mode, not of punishment, but of compensation. If property has been destroyed or other loss occasioned by a wrongful act, it is just that the loss should fall upon the estate of the wrongdoer rather than on that of a guiltless person, and that without reference to the question of moral guilt. Consequently, for every tortious act of violence or other pure tort, the infant tort-feasor is liable in a civil action to the injured person in the same manner and to the same extent as an adult. * * * Infancy, being in law a shield and not a sword, cannot be pleaded to avoid liability for frauds, trespasses, or torts. * * *

'A child of tender years may be held liable for acts of violence, and liability has often been imposed for the injuries caused by such acts, although committed in play and without the intent to inflict substantial injury. Of course, if the injury was an accident, or the acts of the child were only the natural activity of friendly play, there is no liability.'

So Prosser in his work on Torts, pp. 1085-1086 says:

'The law of torts * * * has been more concerned with the compensation of the injured party than with the moral guilt of the wrongdoer, and has refused to hold that an infant is immune from assault and battery, trespass, conversion, defamation, seduction, and negligence. * * *

'This general rule denying immunity must, however, be qualified in a number of respects. In many torts, the state of mind of the actor is an important element. For example, an intent to bring about physical contact is necessary to battery, and in most jurisdictions 'scienter,' or intent to deceive, is said to be essential to deceit. It has been recognized that a child may be of such tender years that he is not an intelligent actor and is incapable of the specific intent required, so that the tort has not been committed, and the event is to be classified as an unavoidable accident. Likewise, in the case of negligence, children have been recognized as a special group to whom a more or less subjective standard of conduct is to be applied, which will vary according to their age, intelligence and experience, so that in many cases immunity is conferred in effect by finding merely that there has been no negligence.'

The same qualification last quoted from Prosser is stated in 27 Am.Jur. sec. 91, pp. 813-814: 'The general rule that infants are responsible, like other persons, for their torts is subject to the qualification that the torts for which they are so liable must not involve an element necessarily wanting in their case. Their liability may be affected by their mentality. Thus, in the case of slander, malice is a necessary ingredient in the wrong. * * * It is obvious, therefore, that in the case of slander an infant cannot be held liable for his tort until he arrives at that age or acquires that capacity which renders him morally responsible for his actions. * * * There is authority to the effect that a minor charged with actionable negligence is not to be held to the standard of care of an adult without regard to his nonage and want of experience. Reasonable care, having regard to the age and stage of development of the individual, is required of minors as well as adults, and no different measure is to be applied to their primary than to their contributory faults. * * * A child is required to exercise only that degree of care which the great mass of children of the same age ordinarily exercise * * * taking into account the experience, capacity, and understanding of the child.'

See also 1 Cooley on Torts, 4th Ed., sec. 64, pp. 186-187, sec. 66, p. 194 et seq.; Harper on Torts, sec. 282, pp. 616-617.

From these authorities and the cases which they cite it may be concluded generally that an infant is liable for his torts even though he lacks the mental development and capacity to recognize the wrongfulness of his conduct so long as he has the mental capacity to have the state of mind necessary to the commission of the particular tort with which he is charged. Thus as between a battery and negligent injury an infant may have the capacity to intend the violent contact which is essential to the commission of battery when the same infant would be incapable of realizing that his heedless conduct might foreseeably lead to injury to another which is the essential capacity of mind to create liability for negligence.

We may take it as settled in the case of infants as stated in the quotation from Am.Jur. above set out that 'no different measure (of negligence) is to be applied to their primary than to their contributory faults.' In a case involving the question of the liability of an infant for his negligent conduct the court in Hoyt v. Rosenberg, 80 Cal.App.2d 500 at pages 506-507, 182 P.2d 234, at page 238, 173 A.L.R. 883, said: 'While the question as to whether a minor has been negligent in certain circumstances is ordinarily one of fact for the jury, an affirmative finding thereon * * * must conform to and be in accordance with the established rule that a minor is expected to use, not the quantum of care expected of an adult, but only that degree or amount of care which is ordinarily used by children of the same age under similar circumstances.' This is the same test applied in determining a child's contributory negligence. (19 Cal.Jur., Negligence, sec. 41, pp. 604-605.)

So far as the count charging the infant defendant with neglience is concerned the question presented to the court is whether as a matter of common knowledge we can say that a child four years of age lacks the mental capacity to realize that his conduct which is not intended to bring harm to another may nevertheless be reasonably expected to bring about that result. In the absence of compelling judicial authority to the contrary in the courts of this state we are satisfied that a four year old child does not possess this mental capacity. In the case of Crane v. Smith, 23 Cal.2d 288, 301, 144 P.2d 356, 364, the court said of a three year old child: 'And since Janice was too young to be guilty of contributory negligence, the appellant's liability to her is established.' In support of this holding the court cited Gonzales v. Davis, 197 Cal. 256, 240 P. 16, which involved a five year old child.

Appellant cites Baugh v. Beatty, 91 Cal.App.2d 786, 793, 205 P.2d 671, 675, where the court said of a four year old boy: 'Whether a minor of tender years has conducted himself with the care and prudence due from one of his years and experience is strictly a question of fact for the jury.' The court cited only Opelt v. Al. G. Barnes Co., 41 Cal.App. 776, 183 P. 241, which involved a ten year old child. The child had been bitten by a chimpanzee at a circus and the court later stated the question to be 'whether plaintiff knowingly and voluntarily invited the injury' and 'knowingly or consciously placed himself in danger.' Such conduct is more than negligence since it involves the intentional taking of a risk and the...