Gudziewski v. Stemplesky

• Decision Date: 06 March 1928
• Parties: GUDZIEWSKI v. STEMPLESKY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 103

160 N.E. 334

GUDZIEWSKI

v.STEMPLESKY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 6, 1928.

Exceptions from Superior Court, Middlesex County; Nelson P. Brown, Judge.

Action by Joseph Gudziewski, p. p. a., against Adam Stemplesky and another. Verdict for plaintiff, and defendants bring exceptions. Exceptions overruled.

Howard A. Wilson and John J. Donohue, both of Boston, for plaintiff.

Edward J. Tierney, of Lowell, for defendants.

BRALEY, J.

The plaintiff, a boy about 10 years of age, was shot in the eye some time in November, 1924, while he was playing in the back yard of his house, located at 11 River street in the town of Maynard. The plaintiff testified that the house of the defendants was across the road from the plaintiff's home, and the jury could find that he saw Stephen Stemplesky, one of the children of the defendants, ‘kneeling down on the floor in the attic window’ of the defendants' house ‘with the barrel of a gun up before he was shot.’ The window was open a little and the barrel was in the open space. The gun held by Stephen was a pump gun, in which BB shot were put, and, when the plaintiff was hit and felt there was something in his eye, he put his hand to his eye and upon taking it away a BB shot fell out. The plaintiff further testified that he saw Stephen in Stephen's own yard with a pump gun more than two weeks before the accident, and that the shot was fired by Stephen. While it was undisputed that Stephen, who was 13 years of age, lived with his parents, there was no evidence that the defendants or either of them purchased or supplied Stephen with an air gun, or furnished him with ammunition therefor, and the jury was so instructed. It is plain there was no violation of G. L. c. 140, § 130, as amended by St. 1922, c. 485, § 8, which makes it a misdemeanor to furnish any ‘firearm, air gun or other dangerous weapon’ or ammunition to a minor under the age of 15.

The action, however, is at common law. The declaration alleges:

That ‘the defendants are the father and mother of Chester and Stephen Stemplesky; that on or about the 8th day of November, 1924, said Chester and Stephen Stemplesky, the sons of the defendants, both minors under 16 years of age, were not proper persons to have possession or control of air guns, or to use, fire or discharge the same, all of which the defendants well knew, or in the exercise of reasonable care ought to have known; that the defendants on or about said 8th day of November negligently and unlawfully suffered the said Chester and Stephen Stemplesky to have in their possession and control, and negligently and unlawfully gave in to the possession or control, of their said minor children a gun and ammunition to be used therewith; that said minor children negligently used, fired and discharged said gun, which the defendants negligently allowed and permitted their said minor children to have and use, and shot and severely wounded one Joseph Gudziewski * * * while * * * in the exercise of due care. * * *’

It is not shown that Chester had or used an air gun as alleged, and the use of the gun by Stephen was the tortious act around which the controversy centered, and for which the plaintiff contends the defendants are responsible. The plaintiff's due care is not questioned, and there was evidence for the jury that the plaintiff's injuries were caused by Stephen's conduct in the use of the gun which was discharged carelessly, if not recklessly. The record shows that other children, although not injured, were struck by shots concurrently fired by Stephen from the window. The questions are, whether the defendants or either of them knew or ought to have known that...