Jackson v. Young

• Decision Date: 21 January 1972
• Docket Number: No. 3,No. 46670,46670,3
• Citation: 187 S.E.2d 564,125 Ga.App. 342
• Parties: Andrew J. JACKSON, Jr. v. Patricia YOUNG
• Court: Georgia Court of Appeals

Page 564

187 S.E.2d 564

125 Ga.App. 342

Andrew J. JACKSON, Jr. v. Patricia YOUNG.

No. 46670.

Court of Appeals of Georgia, Division No. 3.

Jan. 21, 1972.

Aynes, Feldman & Genins, R. John Genins, Atlanta, for appellant.

Long, Weinberg, Ansley & Wheeler, Ben L. Weinberg, Jr., J. Stephens Jenkins, Atlanta, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

This case involves a negligence action brought by a minor plaintiff, by next friend, against a minor defendant. The defendant, who was 12 years old at the time, is alleged to have negligently swung a golf club which struck the plaintiff in the eye and virtually destroyed the sight therein. Plaintiff was 8 years old.

Plaintiff appeals the grant of a motion for summary judgment to the defendant and enumerates the same as error. Held:

1. It has recently been held that a minor defendant who has not attained the age of 13 at the time of the tort is immune from suit. See Brady v. Lewless, 124 Ga.App. 858, 186 S.E.2d 310. Certiorari denied. However, the tort in that case did not occur until after 1968, when by legislation the age of discretion and accountability was raised from 10 to 13 years. The alleged tort in the present case occurred in 1966 when the age of discretion and accountability was still 10 years. The plaintiff herein having a right, vested by the law as it stood at the time of the incident in 1966, to sue a 12 year old minor for negligence, the subsequent action of the legislature in changing the age of accountability did not divest that right. Generally, legislation affecting substantive rights operates prospectively only, not retroactively. See F. H. Ross & Co. v. White, 224 Ga. 324(2), 161 S.E.2d 857. Thus, the defendant herein was not immune from suit because of age.

2. The defendant moved for a summary judgment, contending that the pleadings and depositions on file showed that there was no genuine issue as to any material fact and that the defendant was entitled to a judgment under the facts as a matter of law.

The court entered an order granting the motion, reciting therein that in doing so it had considered the depositions of plaintiff Andrew Jones Jackson, Jr., plaintiff's sister Katherine Elane Jackson, and defendant Patricia Young, and argument of counsel.

The evidence does not conflict in any material particular regarding what occurred. Patricia was in Andy's yard talking with Andy's sister. Andy and his friend, Mark, were hitting golf balls with one of Andy's father's clubs. Patricia wanted to hit a golf ball. She either asked Andy's permission or picked up the club after Andy had laid it down. In any event, there was no objection to her doing. Her intention to swing was known by Andy and Katherine. Patricia swung and hit Andy with the club on her follow through. She stated that she did not look behind her prior to swinging; that she figured Andy was behind her but she did not know how far; but that she did not know at the time she swung that he was within range of the club. Andy stated that he was watching Patricia; that he knew she was going to swing, but figured he was far enough away.

The contention is made in behalf of the 8 year old plaintiff that the 12-year-old defendant was guilty of negligence. On the other hand, the minor defendant argues that the plaintiff minor was contributorily negligent or assumed the risk. Unless the facts are so plain and palpable that they demand a finding by the court as a matter of law (Queen v. Craven, 95 Ga.App. 178, 97 S.E.2d 523; Atlanta Gas Light Co. v. Brown, 94 Ga.App. 351, 94 S.E.2d 612, these specific matters are to be determined by a jury. Howard v. Savannah Electric Co., 140 Ga. 482, 79 S.E. 112; Rothschild v. First National Bank, 54 Ga.App. 486, 188 S.E. 301; Eubanks v. Mullis, 51 Ga.App. 728, 181 S.E. 604; Southern Cotton Oil Co. v. Gladman, 1 Ga.App. 259, 58 S.E. 249; Columbus Power Co. v. Puckett, 24 Ga.App. 390, 100 S.E. 800; Hanchey v. Hart, 120 Ga.App. 677, 171 S.E.2d 918).

Since both plaintiff and defendant were respectively 8 and 12 years old at the time of the occurrence, they come within the age category of minors whose failure to exercise due care is for decision by a jury. Mayor, etc., of Madison v. Thomas, 130 Ga. 153(3), 60 S.E. 461; Cohn v. Buhler, 30 Ga.App. 14, 116 S.E. 864. 'There is no presumption of law that a child between the ages of seven and fourteen did or did not exercise due care, or does or does not have sufficient capacity to recognize danger or to observe due care.' Brewer v. Gittings, 102 Ga.App. 367, 116 S.E.2d 500. As was well said by Judge Bell in this controlling authority: 'It seems clear from the Georgia cases that the question of capacity or lack of capacity to be contributorily negligent in the case of children between the ages of seven and fourteen is a subjective one which necessarily depends in each situation upon the particular child's mental and physical capacity. Thus, there is no presumption that the child did or did not exercise due care or does or does not have sufficient capacity to recognize danger or to observe due care. See Simmons v. Atlanta & West Point R. Co., 46 Ga.App. 93(d), 166 S.E. 666; Southern Ry. Co. v. Chatman, 124 Ga. 1026, 1037-1038, 53 S.E. 692, 6 L.R.A.N.S., 283 (4 Ann.Cas. 675). Since the...