Howell v. Hairston
| Citation | 199 S.E.2d 766,261 S.C. 292 |
| Decision Date | 09 October 1973 |
| Docket Number | No. 19701,19701 |
| Court | United States State Supreme Court of South Carolina |
| Parties | , 65 A.L.R.3d 925 Lewis W. HOWELL and Mary Howell, Appellants, v. James D. HAIRSTON and Sharon Hairston, Respondents. |
Townsend & Thompson, Laurens, for appellants.
W. Paul Culbertson, Laurens, for respondents.
Plaintiffs Lewis W. Howell and Mary Howell instituted this action to recover actual damages sustained by them as a result of having to provide medical care to their son Bruce on account of his being shot in the eye with an air rifle by Bob Hariston, son of the defendants, James D. Hairston and Sharon Hairston. The plaintiffs appeal from the order of the trial judge granting the defendants' motion for a nonsuit.
The primary issue to be decided is whether the trial judge erred in granting the nonsuit. Because we answer this question in the affirmative, it is also necessary for us to resolve two additional issues which may arise at the new trial. The first concerns the admissibility of Mr. Howell' testimony that the defendants paid the plaintiffs $100 in partial payment of the medical expenses the latter incurred for the treatment of their son's eye; the second, whether the trial judge properly struck from the complaint an allegation that an air rifle is a dangerous instrumentality.
The complaint alleges that the defendants were negligent (1) in supplying an air rifle to their son without properly instructing him relative to the use thereof, (2) in knowingly permitting the use of the air rifle by their son upon the public playground of Lydia Mill without proper supervision, (3) in failing to exercise proper control of the use of the air rifle which they knew or should have known was being used in an unsafe manner, and (4) in entrusting the air rifle to their son when they knew or should have known that he was possessed with a malicious character and disposition and when they knew or should have known he was likely to fire the air rifle at other children.
The answer of the defendants is in essence a general denial; however, it admits that the defendants purchased an air rifle for their son prior to the date of the injury and that Bruce Howell was injured on June 27, 1972.
In considering whether a defendant is entitled to a nonsuit, the evidence and all inferences reasonably deducible therefrom should be viewed in the light most favorable to the plaintiff. If more than one reasonable inference can be drawn therefrom or if the inferences to be drawn from the testimony are in doubt, the case should be submitted to the jury. Cases collected, 18 South Carolina Digest Trial § 165 (1962, Supp.1972). We review the evidence in the light of this rule to determine if a jury issue was made out on the negligence question.
Bob Hairston was eleven years of age and Bruce Howell was nine when the incident occurred. The families of both lived in close proximity to the playground where the shooting took place and where both boys and other small children were accustomed to play. The playground was used by the neighborhood children on a regular basis, especially during the summer months. There were no facilities for the shooting of air rifles.
Both Mr. and Mrs. Hairston were away from their home during the day at their respective employments. They employed a maid; however, the testimony discloses that the maid did not really supervise the Hairston children, nor did she go outside the home to watch them. It is inferable that the son was at liberty on this day to take his air rifle and play where he chose. He was not accompanied by his parents nor by the maid on the playground. It is clearly inferable that he intentionally shot Bruce Howell.
Mr. Howell testified that subsequent to the shooting, Mrs. Hairston told him 'that she had tried to get Mr. Hairston to put these BB guns in the attic before someone got hurt with them,' but he had not done so. Such statement was susceptible of the inference that the Hairstons knew that under the circumstances their son should not have been allowed unsupervised possession of an air rifle.
Without exception, all of the plaintiffs' witnesses who were examined in regard to Bob's reputation characterized it as bad or described Bob as a 'bully' or in like terminology depicting aggressive and malicious tendencies. Liability for injuries inflicted by a minor with a gun may be predicated on the fact that the parents permitted the minor to have the gun, knowing the minor was of a reckless or malignant disposition. Annot., 68 A.L.R.2d 793 (1959).
It appears that the trial judge was of the opinion that it was incumbent upon the Howells to show that the Hairstons had first-hand knowledge of Bob's reputation. Such is not the case. The question is whether the parents knew or should have known the reputation of their child. If it was part of the general reputation of this boy that he was possessed of a malicious disposition, his parents would be chargeable with notice of such. Highsaw v. Creech, 17 Tenn.App. 573, 69 S.W.2d 249 (1933); Capps v. Carpenter, 129 Kan. 462, 283 P. 655 (1930). 'Where particular knowledge of a fact is sought to be brought home to a party, evidence of the general reputation and belief of the existence of that fact among his neighbors is admissible as tending to show that he also had knowledge of the same matter.' 29 Am.Jur.2d Evidence § 504 (1967).
In order to make a jury issue on a negligence question, it is not necessary that a plaintiff prove all of the specifications of negligence set forth in the complaint; it is sufficient if evidence in support of one specification be submitted. Whether one is negligent or prudent depends in large measure on all of the surrounding circumstances, and failure to use due care, amounting to negligence, may be proved by direct as well as by circumstantial evidence. In order to hold the parents of Bob Hairston liable, evidence must be submitted tending to prove that a prudent parent would not have entrusted Bob Hairston with an air rifle under the same or similar circumstances. A parent might be justified in entrusting an air rifle to a particular child while residing in a thinly populated rural area; the same parent might not...
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