Hanks v. Booth, 57776

• Decision Date: 03 April 1986
• Docket Number: No. 57776,57776
• Citation: 716 P.2d 596,11 Kan.App.2d 149
• Parties: Michael R. HANKS, Appellee, v. Richard and Traci BOOTH, et al., Appellants.
• Court: Kansas Court of Appeals

Page 596

716 P.2d 596

11 Kan.App.2d 149

Michael R. HANKS, Appellee, v. Richard and Traci BOOTH, et al., Appellants.

No. 57776.

Court of Appeals of Kansas.

April 3, 1986.

Review Granted June 26, 1986.

Syllabus by the Court

1. There is no precise age at which a child may be said, as a matter of law, to have acquired such knowledge and discretion as to be held accountable for all his or her actions to the same extent as one of full age, and the question of capacity of a particular child at a particular age to avoid a particular danger is one of fact, falling within the province of a jury to determine.

2. An act performed with a designed purpose or intent on the part of a person to do wrong or to cause an injury to another is a willful act. Malice is a state of mind characterized by an intent to do a harmful act without a reasonable justification or excuse.

3. K.S.A. 38-120 requires both the act and its harmful result to be intended before parental liability will be imposed.

In this case, while there was evidence that the children willfully and intentionally lit matches and small piles of hay on fire, they believed the fires were extinguished and the evidence fails to prove the children intended to burn down the plaintiff's barn. The trial court should have granted the defendants' motions for a directed verdict.

James E. Benfer, III, of Law Offices of Benfer and Farrell, Topeka, for appellants Richard and Traci Booth.

Jay W. Vander Velde, of Atherton, Sanderson & Vander Velde, Emporia, for appellant Angie Richardson.

Marc A. Hurt, Emporia, for appellee.

Before BRISCOE, P.J., BRAZIL, J., and PORTER K. BROWN, District Judge, Assigned.

PORTER K. BROWN, District Judge, Assigned:

Plaintiff brought a civil suit against defendants, parents of three minor children, pursuant to K.S.A. 38-120, alleging: (1) The children willfully and maliciously damaged and destroyed plaintiff's barn by starting a fire; and (2) the children's conduct was due to parental neglect. The jury found for the plaintiff and the defendants appeal the trial court's denial of their motions for summary judgment and directed verdict.

Defendants contend that the trial court should have granted their motions for summary judgment because the minor children are presumed, as a matter of law, to be incapable of committing a willful or malicious act. We disagree and adopt the statement of the Kansas Supreme Court in Weber v. Wilson, 187 Kan. 214, 220, 356 P.2d 659 (1960):

"[I]t has been held that there is no precise age at which a child may be said, as a matter of law, to have acquired such knowledge and discretion as to be held accountable for all his actions to the same extent as one of full age, and the question of capacity of a particular child at a particular time in avoiding a particular danger is one of fact, falling within the province of a jury to determine. [Citation omitted.]"

The motions for summary judgment were properly denied.

Defendants next contend that the trial court should have granted their motions for directed verdict at the close of plaintiff's case because the plaintiff's evidence did not support his allegation that the children willfully or maliciously damaged or destroyed the property of the plaintiff.

The Kansas Supreme Court, in Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983), stated the scope of review that applies to the lower court's denial or grant of a directed verdict motion:

"In ruling on a motion for directed verdict pursuant to K.S.A. 60-250 the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for directed verdict. [Citations omitted.] The question is not whether there is literally no evidence supporting the party against whom the motion is directed, but whether there is evidence upon which the jury could properly find a verdict for that party. Even where facts are undisputed it is possible that...