Langford v. Shu, 242

• Decision Date: 21 November 1962
• Docket Number: No. 242,242
• Citation: 128 S.E.2d 210,258 N.C. 135
• Court: North Carolina Supreme Court
• Parties: Athlyn B. LANGFORD v. Midgie L. SHU.

Page 210

128 S.E.2d 210

258 N.C. 135

Athlyn B. LANGFORD v. Midgie L. SHU.

No. 242

Supreme Court of North Carolina.

Nov. 21, 1962

McDougle, Ervin, Horack & Snepp and C. Eugene McCartha, Charlotte, for plaintiff, appellant.

Boyle, Alexander & Wade, Charlotte, for defendant, appellee.

SHARP, Justice.

This case involves a practical joke which caused unintended injury. However, the fact that it is a practical joke which is the cause of an injury does not excuse the perpetrator from liability for the injuries sustained. 52 Am.Jur., Torts, Sec. 90; 86 C.J.S. Torts § 20. Where voluntary conduct breaches a duty and causes damage it is tortious although without design to injury. 62 C.J., Torts, Sec. 22.

If an act is done with the intention of bringing about an apprehension of harmful or offensive conduct on the part of another person, it is immaterial that the actor is not inspired by any personal hostility or the desire to injure the other. See Annotation, Right of Victim of Practical Joke to Recover Against its Perpetrator, 9 A.L.R. 364.

In Johnston v. Pittard et al., 62 Ga.App. 550, 8 S.E.2d 717, six defendants, as a practical joke. persuaded plaintiff to go with them to a house in the country to see 'some wild women.' When they arrived at their destination, a vacant farm house, a man yelled from within and two shots were fired in plaintiff's direction. He 'ran in desperation and fear of his life and fell into a ditch as a result of which he sustained injuries. ' The Court of Appeals, in ordering a new trial after verdict for the defendants, held that the defendants would be liable if they should have foreseen that injurious consequences to the plaintiff were the natural and probable result of their conduct and that this was a question for the jury.

In Lewis v. Woodland et al., 101 Ohio App. 442, 140 N.E.2d 322, plaintiff sought damages for a back injury which occurred while she was a guest in the automobile of the defendant Jones when she jumped with fright after defendant Woodland dropped a life-like rubber lizard in her lap. She alleged that the act of Woodland was the result of a preconceived plan of both defendants to frighten her and cause her to react suddenly and violently. The jury returned a verdict in favor of the plaintiff against both defendants. The court ruled that 'the question of forseeability of the consequences of the defendants' perpetration of a joke was properly for consideration by the jury * * *. ' In the syllabus by the court it is said:

'Where a person's conduct is such as to frighten or cause an emotional disturbance to another, which the former should recognize as involving an unreasonable risk of bodily harm, the fact that the harm results solely from the internal operation of the fright does not protect the former from liability.

'Once it is shown that a person charged with frightening another should have anticipated that some injury would likely result from his conduct, * * * responsibility attaches for all consequences naturally resulting from the former's conduct * * * although it might not have been specifically contemplated or anticipated.'

The defendant in the instant case owed to the plaintiff the duty not to subject her to a fright which, in the exercise of due care or reasonable foresight, she should have known was likely to result in some injury to her. Kirby v. Jules Chain Stores Corp., 210 N.C. 808, 188 S.E. 625. Restatement of Torts, 1177, Sec. 436; Lewis v. Woodland, supra. The purpose of the box labeled 'Danger, African Mongoose, Live Snake Eater' was to produce sudden fright and to cause the affirghted person to recoil violently. The degree of fright generated would depend upon the fortitude of the individual victim.

Had the defendant herself demonstrated the box and sprung the trap which released the fake mongoose, there is no doubt that it would be for the jury to say whether or not she should have reasonably foreseen that some injury might result to the plaintiff from the perpetration of her joke. The question now arises whether the defendant is liable for the act of her eleven-year-old boy who released the furry object which frightened plaintiff into precipitous flight and caused her injury.

North Carolina is in full accord with the common-law rule that the mere relation of parent and child imposes on the parent no liability for the torts of the child. The parent is not liable merely because the child lives at home with him and is under his care and control. Apart from the parent's own negligence, liability exists only where the tortious act is done by the child as the servant or agent of the parent, or where the act is consented to or ratified by the parent. A parent is liable for the act of his child if the parent's conduct was such as to render his own...