A. J. Anderson Co. v. Reich

• Decision Date: 02 December 1922
• Docket Number: (No. 10064.)
• Citation: 249 S.W. 298
• Parties: A. J. ANDERSON CO., Inc., v. REICH.
• Court: Texas Court of Appeals

249 S.W. 298

A. J. ANDERSON CO., Inc., v. REICH.

(No. 10064.)

Court of Civil Appeals of Texas. Fort Worth.

December 2, 1922.

Rehearing Denied January 20, 1923.

Writ of Error Granted by Supreme Court February 28, 1923.

Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.

Suit by Florence Reich, as next friend of Adrian Bynum, a minor, against the A. J. Anderson Company, Inc. From a judgment for plaintiff, defendant appeals. Affirmed.

Marvin H. Brown and Charles T. Rowland, both of Fort Worth, for appellant.

Capps, Cantey, Hanger & Short, of Fort Worth, for appellee.

BUCK, J.

This suit was brought by Florence Reich, as next friend of her son, Adrian Bynum, a minor, to recover damages against the A. J. Anderson Company, a corporation alleged to have resulted from the exploding of a one-third pound of gunpowder, which it was alleged had been negligently sold and delivered to said minor by said company. There was a trial before a jury upon special issues submitted, and the jury found: (1) That on or about December 24, 1919, defendant sold to the minor a quantity of gunpowder. (2) That such selling was negligence. (3) That Adrian Bynum at said date was of such age and inexperience in the use of gunpowder that he was not aware of the danger to himself in handling or using the same. (4) That Adrian Bynum was not guilty of contributory negligence in attempting to handle and use said gunpowder in the manner in which he did explode the same. (5) That said Adrian Bynum was injured by the explosion in question, and that $12,000 was a reasonable compensation for such injuries. From a judgment against defendant for said sum, the defendant has appealed.

Negligence on the part of defendant was alleged in three respects, to wit: First, in selling the gunpowder to said minor; second, in refusing to sell said minor capsules or other receptacles in which a fuse or other means of conveying ignition to said gunpowder could be used; third, in directing and instructing said minor in the use of said gunpowder, and in directing said minor to place said gunpowder in a can and apply a match directly thereto. Defendant answered by a general denial, and specially pleaded that—

"If said instructions were given to said minor by an employee of defendant, that such act was not within the scope of his employment, and that therefore defendant was not liable for any damages resulting therefrom."

No evidence was introduced tending to support the second count. Hence the verdict returned on the special issues and the judgment rendered must rest, if at all, upon the first and third allegations of negligence.

Twenty-nine assignments are urged by appellant, but they will be grouped, where possible, in our discussion.

It is urged that the evidence shows that if any instructions were given by the clerk at the time of the sale, such instructions were given after the consummation of the sale, and at a time when the clerk was no longer engaged in his master's business in making the sale; that at most it is shown that such instructions were given voluntarily by the clerk, and not while the sale was being consummated, and that the master is not responsible for such or for any negligence shown therein. The only proof of the sale by defendant to Adrian Bynum was given in the testimony of Adrian Bynum and Paul Conley, a boy 10 or 11 years old. Adrian is shown to have been 10 years old at the time. Adrian testified:

"I bought some gunpowder from a man. I do not know his name. He was there in Anderson's store, over in the gun department. * * * I paid for the powder. I am asked to state what I said to the man and what the man said to me. I walked into the store. I saw the clerks, and I said to one, `I want to get some kind of explosive powder to put into capsules,' and he said, `Come back where the powder is.' He then said it would not go off in capsules; I would have to put it in a bucket. I had some capsules and I showed them to him. He said it would not go off in the capsules, but he did not tell me why. He said they were too small. He said or told me what it would go off in. He said put it in a can. He told me to do something else. He said, `Put a match to it and put it in a can.' He told me what to do. He said it would make a big noise. That is what I was hunting for. * * * We did something with the powder over at Mr. Bransford's house, or near his house. We exploded it. I stuck the powder in a can and then stuck a match to it, and it exploded in my face. The first match I put to it did not explode, and I was seeking what the matter was. * * * At the time this man told me to put this powder in a can and put a match there and that it would make a big noise, I did not know that that was dangerous to me. * * * I relied on what he told me; that is the reason that I did it."

He further testified that he had never bought any gunpowder before, but that he had been buying and shooting fireworks since he was eight years old; that he did not ask the clerk to give him any instructions, but that the clerk gave them voluntarily; that the witness told the clerk that he was going to "stick the powder in capsules, and he said it would not go off. I did not ask him to tell me how I would shoot it at all." But Paul Conley testified that the clerk, just as the two boys were starting out of the store, asked them what they were going to do with the powder; that Adrian said they were going to put it in capsules, and that the clerk told them to put it in a snuff box or can and make it air tight; that it would not go off if put in capsules.

A peremptory instruction for defendant was not called for on the ground that the evidence showed unmistakably that the instructions alleged and shown to have been made were made at a time when the clerk was not engaged in his master's business, under such cases as Railway v. Cooper, 32 S. W. 517, and Railway v. Currie, 100 Tex. 136, 96 S. W. 1073, by the Supreme Court; for Adrian's testimony indicates that the instructions were given while the sale was being made, and we are not prepared to hold that the giving of instructions, at such time by a clerk, how to use a dangerous explosive, especially to an infant of tender years, is so disconnected with the employment of the clerk as to render the master not liable for any negligence in giving the instructions. In fact, in our opinion, at least, it was a question for the jury whether it was negligence to sell gunpowder to a minor of such tender years, especially where the clerk selling it was informed by the minor that he intended to explode it.

In the case of Carter v. Towne, 98 Mass. 567, 96 Am. Dec. 682, it was alleged that—

"The defendants carelessly and unlawfully sold and delivered to the plaintiff two pounds of gunpowder, the plaintiff then being a minor of the age of eight years, and having neither experience nor knowledge in the use of gunpowder, and being an unfit person to be intrusted with the same, all which the defendants knew."

And that—

"The plaintiff, in ignorance of its effects, and using that care of which he was capable, exploded said gunpowder, and by such explosion was severely and dangerously burned."

A demurrer by the defendants was sustained and the plaintiff appealed. The court said:

"By the well-settled rule of the common law, a person who negligently uses a dangerous instrument or article, or causes or authorizes its use by another person, in such a manner or under such circumstances that he has reason to know that it is likely to produce injury, is responsible for the natural and probable consequences of his act to any person injured, who is not himself in fault. The liability does not rest on privity of contract between the parties to the action, but on the duty of every man so to use his own property as not to injure the persons or property of others."

In this case, the case of Dixon v. Bell, 1 Stark, 287, s. c., 5 Maule & S. 198, and other cases were discussed. In the cited case the court further said:

"The declaration in this case and the demurrer admits, that the plaintiff was a child of eight years old, had neither experience nor knowledge in the use of gunpowder, and was an unfit person to be intrusted with it; that the defendants, knowing all this, sold and delivered to him two pounds of gunpowder; and that he, in ignorance of its effects, and using that care of which he was capable, exploded it, and by the explosion was severely injured. This injury was clearly, within the authorities above cited, the proximate and natural consequence of the defendants' negligence in selling a dangerous article to a child who they knew to be, by reason of his youth and ignorance, unfit to be intrusted with it, and who probably, therefore, as they had reason to believe, might innocently and ignorantly play with it to his own injury. The case cannot be distinguished in principle from that of a man who delivers a cup of poison to an idiot, or puts a razor into the hand of an infant in its cradle. The want of any direct intention to injure does not excuse the defendants. `Every man must be taken to contemplate the probable consequences of the act he does.' By Lord Ellenborough, C. J., in Townsend v. Wathen, 9 East, 280."

In the case of Bosserman v. Smith, 205 Mo. App. 657, 226 S. W. 608, the plaintiff, a boy 8½ years old, went into defendant's store to buy some fireworks known as "red fire," which could be used without particular danger. Instead of the "red fire," the clerk sold and delivered to the child a sort of fireworks known as a "mine," which would explode when lighted with a match or fire. In passing on the negligence of the defendant in selling a dangerous article to the child, the Kansas City Court of Appeals said:

"There is no question but that the `mine' was an exceedingly dangerous article to be placed in the hands of a child of tender years, and it is well established that the sale of such an article to such a child is an...