Hatch v. O'Neill, 28207

• Decision Date: 16 November 1973
• Docket Number: No. 28207,28207
• Citation: 231 Ga. 446,202 S.E.2d 44
• Parties: Andrew P. HATCH et al. v. Michael O'NEILL et al.
• Court: Georgia Supreme Court

Page 44

202 S.E.2d 44

231 Ga. 446

Andrew P. HATCH et al. v. Michael O'NEILL et al.

No. 28207.

Supreme Court of Georgia.

Nov. 16, 1973.

Rehearing Denied Nov. 29, 1973.

Syllabus by the Court

An infant under the age of criminal responsibility is immune from suit for tort, under the provisions of Code § 105-1806.

Eugene McCracken, Savannah, for appellants.

MOBLEY, Chief Justice.

Andrew P. Hatch, a minor, suing through his father, Roddy J. Hatch, Jr., as next friend, and Roddy J. Hatch, Jr., individually sued Michael O'Neill, a minor and three adults. It was alleged that Michael O'Neill placed a rock in a described powerful sling shot, deliberately aimed the sling shot at the head of Andrew P. Hatch, and fired the sling shot from a distance of approximately three feet, causing the rock to strike Andrew P. Hatch in the right eye, which resulted in the loss of the eye.

A motion for summary judgment was filed as to the minor, Michael O'Neill, on the ground that he was nine years of age at the time of the occurrence, and would not be liable for a tort under the provisions of Code § 105-1806.

The plaintiffs filed a response to the motion for summary judgment, asserting that Code § 105-1806 violates the due process clauses of the State and Federal Constitutions, and also contending that such Code section does not protect a minor under the age of 13 from a suit for damages for a wilful tort.

The trial judge granted the motion for summary judgment and dismissed Michael O'Neill as a party defendant. The appeal is from that judgment.

1. Code § 105-1806 provides: 'Infancy is no defense to an action for a tort, provided the defendant has arrived at those years of discretion and accountability prescribed by this Code for criminal offenses.'

The appellants contend that this Code section, strictly construed, does not prevent an action for tort against an infant under the age of criminal responsibility, and means only that a minor over the age of criminal accountability can not claim any lesser standard of care in his conduct than that of an adult. The appellants also contend that this Code section should be construed with Code § 105-204, which provides: 'Due care in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation.'

Code § 105-1806, in identical language, appeared in the first Code of this state. Code of 1863, § 2996. At that time the age of criminal responsibility was 14, or before that age if the child knew the distinction between good and evil, but never under the age of 10. Code of 1863, §§ 4190, 4191. The present age of criminal responsibility is 13. Ga.L.1968, pp. 1249, 1270 (Code Ann. § 26-701). In the Code of 1861, as in the present Code, the section which is now 105-1806 is in the Chapter listing defenses to torts.

Code § 105-204 first appeared in the Code of 1895 § 2901). It was codified from W. & A.R. v. Young, 81 Ga. 397(2), 7 S.E. 912, which announced a rule for the determination of the standard of care required of a child, when considering the question of contributory negligence of the child, in an action to recover damages for an injury to the child.

There is little case law in Georgia construing the meaning of Code § 105-1806. In Central R. v. Brinson, 70 Ga. 207(5d), this court held: 'A person who is neither a lunatic, idiot nor insane, and who has arrived at fourteen years of age, or before that age, if such person knows the distinction between good and evil, is held responsible for crime; under ten years of age, he is not responsible; and he is equally responsible in cases of tort, provided he has reached those years of discretion and accountability prescribed by the Code for criminal offenses.' This statement indicates that tort liability coincides with criminal liability, but the case did not deal with an action for tort against a minor.

The Court of Appeals, in Brady v. Lewless, 124 Ga.App. 858, 186 S.E.2d 310, with two Judges dissenting, held that Code § 105-1806 means that a minor under the age of 13 is immune from suit for tort, and distinguished the rule as to the negligence of a child in an action for damages because of injuries to the child. Certiorari was denied by this court.

It is our opinion that the Court of Appeals correctly interpreted the meaning of Code § 105-1806. Since this statute determines the policy of this state as to torts of minors under the age of criminal responsibility, it is immaterial what the rule is in other jurisdictions, or what the rule was at common law.

2. The appellants assert that Code § 105-1806 violates the due process clauses of the State and Federal Constitutions in that it deprives them of a property right without due process of law by barring them from the recovery of lawful damages from the minor child, regardless of his culpability, wanton act, and negligence, and regardless of any standard of care which could be imposed upon a minor of his age under similar circumstances, the severity and permanance of the injury inflicted, his resources to pay damages, and any other fact or circumstance.

The question of the immunity of an infant who is under the age of criminal responsibility from liability for torts is a reasonable subject for regulation by the legislative branch of government, and it is not a denial of due process of law to provide that no cause of action exists for torts committed by infants of such age.

The trial judge did not err in granting the motion for summary judgment and dismissing Michael O'Neill as a defendant.

Judgment affirmed.

All the Justices concur, except GUNTER, JORDAN and INGRAM, JJ., who dissent.

JORDAN, Justice (dissenting).

I cannot see the logical distinction in saying that the 9 year old here involved is capable under the law of being guilty of contributory negligence to the extent that it could bar his recovery in a tort action, and at the same time holding that he cannot be guilty of some degree of actionable or primary negligence. See my dissent in Brady v. Lewless, 124 Ga.App. 858, 860, 186 S.E.2d 310.

INGRAM, Justice (dissenting).

This suit began when the appellants filed a complaint against Michael O'Neill, a nine-year old minor, and three adults. The allegations indicated that the defendant fired a rock with a slingshot at a distance of some three feet from the head of the appellant, Andrew Hatch, striking Hatch's eye and causing him to lose the eye. Upon motion of the defendant minor, the trial court granted summary judgment on his behalf upon the ground that Code § 105-1806 provided immunity from suit in tort for minors under the age of criminal responsibility, which, as set forth in Code Ann. § 26-701, is thirteen. The central issue on appeal is whether under Georgia law an infant under the age of criminal responsibility is immune from tort liability.

The majority of this court has construed Code § 105-1806 to grant such immunity, and in doing so has followed the construction placed upon the statute by the Court of Appeals of Georgia in Brady v. Lewless, 124 Ga.App. 858, 186 S.E.2d 310. This decision, I believe, is in error in three respects, which are discussed below: (1) it fails to take into consideration the rule as prevailed at common law, Code § 105-1806 being a codification of the common law; (2) it fails to reconcile the anomalous principle that an infant under the age of criminal responsibility may be accountable for contributory negligence under a standard of care set forth in Code § 105-204; (3) and it fails to take into account the impact and implication of liability insurance upon suits against infants.

By an Act of the General Assembly, assented to December 9, 1858, provision was made for the election of three commissioners, 'to prepare for the people of Georgia a Code, which would as near as practicable, embrace in condensed form, the laws of Georgia, whether derived from the common law, the Constitutions, the statutes of the State, the decisions of the Supreme Court, or the Statutes of England, of force in this State.' Ga.L.1858, p. 95. Code § 105-1806 first appeared in the 1861 Code of Georgia in § 2996 in the same language as it reads today: 'Infancy is no defense to an action for a tort, provided the defendant has arrived at those years of discretion and accountability prescribed by this Code for criminal offenses.' Under the penal provisions of the 1861 Code, criminal responsibility of an infant was provided for in two separate sections: § 4190. 'A person shall be considered of sound mind who is neither an idiot, a lunatic, or afflicted by insanity; or who hath arrived at the age of fourteen years, or before that age, if such person knows the distinction between good and evil;' and § 4191. 'An infant under the age of ten years, whose tender age renders it improbable that he or she should be impressed with a proper sense of moral obligation, or be possessed of sufficient capacity deliberately to have committed the offense, shall not be considered or found guilty of any crime or misdemeanor.'

In considering the meaning of these various provisions, inquiry must be made into the common law and the codified law prevailing at that time. No issue is taken with the exact meaning of the provisions of the penal law as of 1861. In the case of Ford v. State, 100 Ga. 63, 25 S.E. 845, the penal section as to the criminal responsibility of an infant below the age of ten was construed to mean a child of that age was conclusively presumed incapable of criminal guilt. Code Ann. § 26-701 now has the age of responsibility set at thirteen. What is demurred to is the inference this court has drawn, i.e., since the infant cannot commit a crime, he cannot commit a tort.

At common law, cases in which minors were sued for their torts were very rare. Sir Percy Winfield has suggested that the reason for the dearth of such cases was because minors were often not worth...