Mazzilli v. Selger

• Decision Date: 28 September 1953
• Docket Number: No. A--2,A--2
• Citation: 13 N.J. 296,99 A.2d 417
• Parties: MAZZILLI v. SELGER et al.
• Court: New Jersey Supreme Court

Page 296

13 N.J. 296

99 A.2d 417

MAZZILLI v. SELGER et al.

No. A--2.

Supreme Court of New Jersey.

Argued Sept. 9, 1953.

Decided Sept. 28, 1953.

Robert C. Gruhin, Jersey City, for appellant (Morris Edelstein, Jersey City, attorney).

Elmer J. Bennett, Jersey City, for respondent Adam Selger (James P. Beggans, Jersey City, of counsel; Milton A. Dauber, Jersey City, on the brief; Carpenter, Gilmour & Dwyer, Jersey City, attorneys).

George J. Kaplan, Union City, for respondent Frances Selger.

The opinion of the court was delivered by

BURLING, J.

This appeal calls for review of civil actions wherein the gravamen of the complaints sounds in tort. Louis Mazzilli (hereinafter adverted to as the plaintiff) appealed to the Superior Court, Appellate Division, from judgments of dismissal entered against him in the Hudson County Court in favor of the defendants Adam Selger and Frances Selger. The Appellate Division affirmed the judgments. Mazzilli v. Selger, 23 N.J.Super. 496, 93 A.2d 216 (1952). Certification was allowed by this court on the plaintiff's petition therefor. 11 N.J. 593, 95 A.2d 645 (1953).

The plaintiff sustained severe injury to his face and other portions of his body on April 21, 1949 as a result of the discharge of a single barreled shotgun in his direction by Kenneth Selger, then of the age of nine years and ten months, the minor son of Adam and Frances Selger.

In order to obtain recompense for the damages occasioned by his injuries, the plaintiff instituted two civil actions in the Law Division of the Hudson County Court. In one he proceeded against Adam Selger (also adverted to in the pleadings as Adam Sulga) and his son, Kenneth, and in the other action he named as defendant the mother, Frances Selger (sometimes referred to in the pleadings as Frances Sulga). These two actions were consolidated for trial. At the conclusion of the introduction of evidence on the ensuing trial, the Hudson County Court, Law Division, on motions of the defendants Adam and Frances Selger, entered judgments of dismissal against the plaintiff and in favor of those defendants. The jury rendered a verdict for compensatory and punitive damages in favor of the plaintiff against the infant, Kenneth Selger, upon which judgment was entered in the County Court. The plaintiff appealed to the Superior Court, Appellate Division, from the judgments of dismissal. Kenneth Selger appealed to the Appellate Division from the 'denial of his motion to dismiss the Third Count of the complaint' addressed to him (the said third count was a claim for punitive damages), but did not otherwise appeal from the judgment of the trial court. The Superior Court, Appellate Division, ordered these appeals consolidated (on consent of counsel for all the parties thereto). After hearing on the consolidated appeals the Appellate Division affirmed the three judgments in all respects. Mazzilli v. Selger, supra. The plaintiff thereupon petitioned for and was allowed certification to review the judgments of the Appellate Division entered in favor of the defendants Adam Selger and Frances Selger. 11 N.J. 593, 95 A.2d 645 (1953). The son Kenneth Selger neither appealed nor petitioned this court for certification to review the judgment of the Appellate Division in his case. The present appeal involves only the judgments in favor of the defendants Adam Selger and Frances Selger.

Counsel have framed several questions for consideration by this court on the present appeal. Generally speaking, the legal questions involved are: (1) What are the applicable principles of law as to the nature and extent of duty of these parents to protect third persons from injury by their offspring? (2) What effect, if any, upon the performance of such duty, has the fact that the parents are living in separate residences and the infant is living with and is in the custody of one parent? The remaining questions relate to the factual aspects of the controversy calling for determination whether the trial court erred in dismissing the complaints against Adam Selger and Frances Selger, or either thereof.

As this court recently stated in Larocca v. American Chain & Cable Co., 13 N.J. 1, 5, 97 A.2d 680, 682 (1953): 'The fundamental principles pertinent to this case are that negligence must be proved and will not be presumed; that while proof of certainty is not required, the evidence must be such as to justify an inference of probability as distinguished from the mere possibility of negligence on the part of the defendant; * * *.' And it is well settled that on a motion for judgment at the close of the reception of all the evidence the trial court cannot weigh the evidence but must accept as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor. See for example, Wilson v. Savino, 10 N.J. 11, 18, 89 A.2d 399 (1952); Vadurro v. Yellow Cab Co. of Camden, 6 N.J. 102, 106, 77 A.2d 459 (1950).

Firearms have been a subject of legislative control, which indicates a recognition of damage which may ensue from the use of a dangerous instrument, especially in incompetent or unqualified hands. For example, see N.J.S. Title 2A, Administration of Civil and Criminal Justice, Subtitle 10, Crimes, Chapter 151, Weapons and Explosives, of which sections 10 and 11 (N.J.S. 2A:151--10, 11, N.J.S.A.) are instances and provide as follows:

'2A:151--10. Sale of weapons or loaded or blank cartridges to minors

'Any person who knowingly offers, sells, loans, leases or gives to any person under the age of 18 years, any of the firearms or instruments enumerated in section 2A:151--2 of this title, or a toy pistol from which a loaded or blank cartridge may be fired, or any loaded or blank cartridge therefor, is guilty of a misdemeanor.

'2A:151--11. Acquisition or use of firearms by minors; exceptions

'Any person under the age of 18 years who purchases, barters or exchanges any gun, pistol, toy pistol, or other firearm or any instrument or weapon from which any loaded or blank cartridges may be fired; or any person under the age of 16 years who carries, fires or uses any such instrument or weapon except in the presence of his father, guardian or some other responsible adult, or for the purpose of military drill under competent supervision, or for the purpose of competition or target practice in and upon a firing range approved by the governing body or the chief of police of the municipality in which such range is located, is guilty of a misdemeanor.'

The present actions are not grounded upon a premise that the violation of a statute was the proximate cause of injury. The basic philosophy applicable to an action of this category is that to render a person liable on the theory of negligence there must be some breach of duty on his part to the individual complaining, the observance of which would have averted or avoided the injury. 1 Shearman and Redfield on Negligence (Rev.Ed.1941), secs. 4, 5, pp. 10--12; Prosser on Torts (1941), sec. 30, p. 177, and sec. 31, pp. 178 et seq.; Harper on Torts (1933), sec. 68, pp. 157--158.

The duty in the present case is to be found in the principle that one has a duty not to permit a third person to 'use a thing or engage in an activity Which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others' (emphasis supplied). Restatement of the Law, Torts (Negligence) (1934), sec. 308. This rule in substance was applied in Wilson v. Brauer, 97 N.J.L. 482, 484--485, 117 A. 699 (E. & A.1922). Cf. Petry v. Hopping, 97 N.J.L. 418, 421, 118 A. 105 (Sup.Ct.1922); Driesse v. Verblaauw, 153 A. 388, 9 N.J.Misc. 173 (Sup.Ct.1931). Such a duty has been held to exist in connection with the storage or possession of dynamite cartridges in the home of the parent of an infant. Vallency v. Rigillo, 91 N.J.L. 307, 308, 102 A. 348 (E. & A.1917).

A corollary philosophy is expressed in the Restatement as follows:

'A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

(a) knows or has reason to know that he has the ability to control his child, and

(b) knows or should know of the necessity and opportunity for exercising such control.' Restatement of the Law, Torts (Negligence) (1934), sec. 316.

While no decision in this State seems to be a direct declaration of the philosophy thus expressed in the Restatement, it is inherent in Wilson v. Brauer, supra, and is apposite here.

Upon application of these principles we are of the opinion that the trial court erred in dismissing the plaintiff's claim against Frances Selger, but did not err in dismissing the claim against Adam Selger.

It is undisputed and is established without contradiction that at the time of the occurrence in question Adam and Frances Selger were living in a state of separation which had commenced in December 1945, occupying separate residences, and that proceedings were then pending in the Superior Court, Chancery Division, instituted (in the former Court of Chancery, in 1947) by Frances for separate maintenance for herself and Kenneth Selger, the infant son of the marriage, who was as a matter of fact in her custody, and a temporary decree or order of the...