Glean v. Smith, 42640

• Citation: 156 S.E.2d 507,116 Ga.App. 111
• Decision Date: 05 April 1967
• Docket Number: No. 42640,No. 3,42640,3
• Parties: Michael A. GLEAN, Jr., by Next Friend, v. H. L. SMITH
• Court: United States Court of Appeals (Georgia)

Page 507

156 S.E.2d 507

116 Ga.App. 111

Michael A. GLEAN, Jr., by Next Friend, v. H. L. SMITH.

No. 42640.

Court of Appeals of Georgia, Division No. 3.

April 5, 1967.

Rehearing Denied June 30, 1967.

Certiorari Denied Sept. 7, 1967.

Syllabus by the Court

The petition sets out a cause of action for injuries received by the 6 year old plaintiff who was wounded while playing on defendant's premises by a pistol accidentally discharged by the defendant's 3 year old son.

The petition alleges that the 6 year old plaintiff was a playmate of the defendant's children, that it had been the custom for these children to visit in each other's homes; that the defendant kept a loaded pistol in the top drawer of a child-size bureau (meaning a chest three to four feet tall) in the playroom of the defendant's residence; that defendant's 3-year-old son, in the normal course of playing, opened the drawer, removed the pistol and discharged the weapon at the plaintiff, causing him physical injury. The defendant was negligent (a) in failing to see that his children were properly supervised at play, and (b) in placing an intrinsically dangerous instrumentality in the immediate vicinity of children of tender years.

A general demurrer was sustained and the plaintiff appeals.

Long & Glean, M. A. Glean, Sr., Atlanta, William F. Braziel, Savannah, for appellant.

Brannen, Clark & Hester, Perry Brannen, Savannah, for appellee.

DEEN, Judge.

1. Where liability of a parent for the tort of a child is based on the parental relationship, the imputation of negligence must stem from an agency or master-and-servant relationship. Bell v. Adams, 111 Ga.App. 819(1), 143 S.E.2d 413, holding that a parent was not liable where the 17 year old son intentionally shot another with the father's rifle, which had been left in a place accessible to him, in the absence of allegations showing the parent should have foreseen that the son, if in possession of the weapon, would commit a criminal act.

2. Insofar as the petition alleges negligence on the part of the defendant in failing to supervise the play activities of an infant son too young to be capax doli, it is subject to same defect that existed in Assurance Co. of America v. Bell, 108 Ga.App. 766, 775, 134 S.E.2d 540, 546, where it was held: '(T)he mere fact that the child escapes the supervision of a parent, and that the parent knows harm could result if he or she is not present, is not a sufficient allegation of actionable negligence. The true test is not the fact of escape. It is whether (a) a duty was raised against the parent by the facts of the case of anticipating that in the absence of his supervision a particular type of injury to another will result, and (b) whether he then exercised reasonable care to control and supervise the infant to prevent such result.' See also Barlow v. Lord, 112 Ga.App. 352, 145 S.E.2d 272. The petition fails to include these essential allegations.

3. There can be no doubt but that a loaded pistol in the hands of a minor child too young to understand its nature is a dangerous instrumentality. Although the petition is loosely drawn and perhaps subject to special demurrer, as against a general demurrer the allegation that the defendant was negligent in placing an intrinsically dangerous instrumentality in the immediate vicinity of children of tender years is supported by allegations of fact that the pistol was in the drawer of a 'child size bureau' in a 'play room' in the defendant's home where he had infant children. The duty of the owner of land is to exercise ordinary care in keeping the premises safe. 'As to an infant * * * the owner of premises on which a dangerous thing exists may in legal duty be bound to use a greater quantum or precaution in behalf of such infant licensee than he would in behalf of...