Faith v. Massengill

• Decision Date: 06 September 1961
• Docket Number: No. 2,No. 38990,38990,2
• Citation: 121 S.E.2d 657,104 Ga.App. 348
• Parties: H. E. FAITH et al. v. Ruth MASSENGILL
• Court: Georgia Court of Appeals

Page 657

121 S.E.2d 657

104 Ga.App. 348

H. E. FAITH et al. v. Ruth MASSENGILL.

No. 38990.

Court of Appeals of Georgia, Division No. 2.

Sept. 6, 1961.

Syllabus by the Court

1. (a) Under the allegations of the instant petition a cause of action was set forth against the infant defendant, an eight year old child, it being a question for the jury's determination as to whether this defendant was of an age capable of exercising some degree of care, what degree of care was required of him, and if he violated that degree of care in respect to his conduct in the matter under investigation.

(b) The alleged violation of an ordinance prohibiting the discharge of air rifles or 'BB' guns within the city limits of Dalton, Georgia, by the eight year old defendant did not constitute an act of negligence per se by said defendant.

2. (a) The instant petition, which alleged that the father of the eight year old child was negligent in furnishing an air rifle to his son who was inexperienced in handling weapons of such character and in making the gun accessible to the child and in allowing him to shoot it in a residential section unsupervised by the father or any other mature person, stated a cause of action against the father for his original negligence in procuring and furnishing to a minor of eight years of age this instrumentality.

(b) The alleged violation of an ordinance of the city of Dalton, Georgia, making it unlawful for any parent having custody of any child under twelve years of age to permit such child to have in his possession any air rifle or 'BB' gun within the corporate limits of said municipality constituted an act of negligence per se by the defendant father.

3. The instant petition did not state a cause of action against the defendant mother, and the trial judge erred in overruling the demurrers of this defendant to the petition.

This is a suit for damages brought by Mrs. Ruth Massengill, as plaintiff, against Harold E. Faith and Mrs. Thelma C. Faith and Richard Lamar Faith, their minor child of the age of eight years, as defendants, seeking the recovery of damages on account of an injury sustained by Mrs. Massengill as a result of being struck in the eye with a 'BB' pellet fired from an air rifle by the minor, Richard L. Faith, while playing upon the premises of the parents. It is alleged by the plaintiff that on the morning of February 14, 1959, she decided to visit the mother and defendant, Mrs. Faith, for the purpose of having the defendant assist her in rolling up her hair; that as she reached the yard of the defendant Faith, there were several young children, including the minor son, Ricky Faith, playing in the yard of the defendants, and that Ricky Faith had in his possession an air rifle which discharges or propels pellets, one of which is alleged to have struck plaintiff in the eye; that as the plaintiff was walking across the yard to the home of the defendants, she was suddenly struck in the right eye by a pellet from the air rifle, inflicting the injury sued upon. The plaintiff alleged that the air rifle is an instrument which, if not properly used, is a dangerous weapon likely to produce serious injury to human beings. The plaintiff alleges specifically that the defendant, Ricky Faith, was not discharging the gun toward plaintiff with any intention of striking her, but was firing the gun at an object (matches) lying on a concrete sidewalk in an attempt to strike and light the matches and that the pellet which struck the plaintiff ricocheted off the sidewalk into the air, striking the plaintiff in the eye.

Negligence is alleged against the minor, eight years of age, in having possession of the gun and firing the same indiscriminately in a thickly populated residential section, when he was inexperienced and untrained in the firing of such a rifle, and in firing the same at matches lying on a concrete surface when he knew or should have known that the pellets would likely ricochet from the sidewalk in all directions; in firing the gun against the concrete surface causing the pellets to ricochet when he knew or should have known of the presence of plaintiff; and in failing to observe the plaintiff as she approached his home and in firing the rifle before she had reached a place of safety.

The plaintiff alleges the following acts of negligence against the father, Harold E. Faith: In furnishing the air rifle, which is a dangerous instrumentality, to a minor son inexperienced in handling rifles of such character when the father knew or should have known that the son would likely injure or damage some innocent bystander in discharging the gun in the indiscriminate manner alleged; in making the gun accessible to the child by leaving the same in the room with toys when defendant by the exercise of ordinary care should have known that the child would likely take the gun and use the same in the manner referred to; in allowing him to shoot the same in a residential section unsupervised by the father or any other mature person; in failing to place the gun in a place inaccessible to the minor son and allowing the minor son, only eight years of age, to use and fire the gun when he knew that the son was inexperienced in the handling and shooting of firearms of the type alleged.

Negligence is alleged against the mother, Mrs. Thelma Faith, in the following particulars: In allowing the son to fire the gun in a residential section without supervision; remaining in the house and leaving her son unsupervised while in the yard, with knowledge that he would likely obtain possession of the gun and discharge it indiscriminately; in failing to determine that the son actually had possession of the gun and was firing the same in the yard of the defendant's home, when the mother was present and could have easily supervised and controlled the activities of said child, had she known of the activities; in permitting the gun to be easily accessible and in failing to keep it in a place of safety and in allowing and permitting the son, only eight years of age, to use and fire the gun.

In an amendment to the petition it was alleged that the defendant, Richard L. Faith, was guilty of negligence as a matter of law in that he violated a city ordinance of Dalton, Georgia, prohibiting the discharge of air rifles and 'BB' guns within the city limits of said municipality, a copy of said ordinance being attached to the petition. In a second amendment to the petition, it was alleged that the parents were guilty of negligence per se in violation of a city ordinance making it unlawful for any parent having custody of any child under twelve years of age to permit such child to have in his possession any air rifle or 'BB' gun within the corporate limits of Dalton, Georgia.

The defendants each demurred to plaintiff's petition, generally and specially.

The trial judge overruled the demurrers and the case in before this court on exception to the court's rulings on the demurrers.

Hardin, McCamy, Minor & Vining, Carlton McCamy, Dalton, for plaintiff in error.

Mitchell & Mitchell, D. W. Mitchell, Dalton, for defendants in error.

JORDAN, Judge.

1. (a) It is the contention of counsel for the minor defendant that as a matter of law an eight year old child cannot be guilty of actionable, primary negligence; and that, accordingly, the plaintiff's petition as to this defendant failed to state a cause of action. Counsel, however, has cited no cases in support of this contention; and we have been unable to find any in the reported cases of the appellate courts of this State or of other jurisdictions.

Both this court and the Supreme Court, on numerous occasions, have decided the question of whether or not a child or tender years is chargeable with contributory negligence in avoiding consequences of another's negligence. In McLarty v. Southern Ry. Co., 127 Ga. 161, 162, 56 S.E. 297, it was held that: 'The care and diligence required of an infant of tender years is not fixed by any invariable rule with reference to the age of the infant or otherwise. It...