Mendola v. Sambol
| Decision Date | 14 March 1950 |
| Parties | MENDOLA v. SAMBOL. MENDOLA et ux. v. SAMBOL. |
| Court | Pennsylvania Superior Court |
Argued November 17, 1949.
Appeals, Nos. 150 and 151, April T., 1949, from judgments of Court of Common Pleas of Washington County, Nov. T., 1948 No. 257, in cases of Robert Mendola, a minor, by Serafino B Mendola, his Guardian, v. Joseph Sambol and Serafino B Mendola et ux. v. Same.
Trespass for personal injuries. Before Cummins, J.
Compulsory nonsuit entered as to defendant wife; verdicts, in favor of plaintiff-parents in the sum of $ 1,474.85, and in favor of minor plaintiff in the sum of $ 500, against defendant husband, and judgments entered thereon. Defendant husband appealed.
Paul N. Barna, for appellant.
D. M. Anderson, Jr., with him Anderson & Anderson, for appellees.
OPINION
The minor-plaintiff, a seven-year-old child, suffered serious injury from a gunshot wound. The jury found that the injury was the proximate result of the defendant's negligence and awarded damages in favor of the child's parents to compensate them for hospital and medical expense incurred, and, in a second verdict against the defendant, made an allowance to the minor for pain and suffering. The lower court properly refused to enter judgments in favor of the defendant n. o. v. under the circumstances.
The verdicts establish these facts: Defendant had a .22 caliber repeating rifle which he kept in his home. On the evening in question he had invited his eleven-year-old son to go with him to a public refuse dump in Donora to shoot rats. He had brought the gun from his room and placed it unattended behind a door in the living room on the first floor of the house while he went to a chicken coop in the back yard. In the father's absence the son found the gun there and took it with him to the family automobile which was parked in front of the house, in readiness for the trip to the dump. The son saw the minor-plaintiff standing nearby and called the child to him to demonstrate the operation of the gun. Unknown to the son there were cartridges in the magazine of the rifle which the father had left in the gun after last using it. In showing the minor-plaintiff how the gun worked, defendant's son operated the mechanism which transferred a cartridge from the magazine into the firing chamber. This operation cocked the gun and the load was discharged into the leg of the plaintiff-child when defendant's son intentionally, or otherwise, pulled the trigger.
This case does not invoke the theory of vicarious liability imposed upon a father for the tortious conduct of his son. The verdicts of the jury charged the defendant with negligence, imposing liability on him because of his own acts in relation to the gun under the principle, which controls this appeal, stated thus in § 308 of the Restatement Torts: "It is negligence to permit a third person to use a thing or to 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 to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others". There are few things as attractive to a young boy as a gun. And in recognition of...
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