Milton Bradley Co. Of Ga. Inc v. Cooper
| Decision Date | 20 May 1949 |
| Docket Number | Nos. 32395, 32418.,s. 32395, 32418. |
| Citation | 79 Ga.App. 302,53 S.E.2d 761 |
| Parties | MILTON BRADLEY CO. OF GEORGIA, Inc. v. COOPER et al. BENSON. v. COOPER et al. |
| Court | Georgia Court of Appeals |
1. A petition brought against a wholesale merchant and a retail merchant, alleging that the wholesaler sold and delivered to the retailer's store, within the City of Atlanta, firecracker or torpedo toys known as "atomic bombs, " containing an explosive powder causing them to explode when coming into pressure contact with the ground or other surface, which were inherently dangerous instrumentalities, in violation of a valid municipal ordinance of the City of Atlanta and that the retail merchant negligently allowed his 12-year-old son to get a bomb from the store and throw it at the plaintiff, standing in the street, to scare him, which bomb exploded and struck the plaintiff in the face and left eye causing him to lose the sight of his eye, stated a cause of action against both defendants as against a general demurrer.
2. It was a question for the jury to say whether the injuries to the plaintiff were proximately caused by Milton Bradley Company's negligence, and were a natural and probable consequence of the sale and put into operation other causal forces, which were the direct, natural and probable consequences of the original sale, and whether intervening agencies between the original act of sale and the injuries could have reasonably been anticipated or foreseen by Milton Bradley Company.
3. Whether or not the alleged negligence of Benson in keeping the bombs in his store in an open and unguarded manner, and easily accessible to children, and in permitting his young son to take a bomb out of the store and injure the plaintiff, was a proximate cause of the plaintiff's injuries, was also a question for the jury.
Error from Superior Court, Fulton County; Ralph H. Pharr, Judge.
Suit by Glenn Cooper, by next friend, against the Milton Bradley Company of Georgia, Inc., and R. E. Benson, jointly and severally, for injuries sustained by the plaintiff in explosion of a torpedo, which was sold by the Milton Bradley Company of Georgia, Inc., to R. E. Benson, and which was taken from his retail store by his minor son and was thrown at the plaintiff. To review an adverse judgment, the defendants bring error.
Judgment affirmed.
Glenn Cooper, 15 years of age, by next friend, filed a suit for damages in Fulton Superior Court against Milton Bradley Company of Georgia, Inc., and R. E. Benson, jointly and severally. The allegations of the petition as amended are briefly but substantially as follows:
Milton Bradley Company is a wholesaler and vendor of merchandise, with its principal place of business in the City of Atlanta, and R. E. Benson operates a retail store at 494 Boulevard, in the City of Atlanta. That prior to April 2, 1948, Milton Bradley Company sold to defendant Benson a quantity of a certain firecracker or torpedo toy called an "Atomic Bomb" or "Feather Bomb." This bomb is made to be used as a toy but is not an ordinary toy, but is a dangerous instrumentality, be-ing operated by an explosive powder, so that when the bomb is thrown to the ground, or comes into pressure contact with some other surface, the explosion projects the bomb, which consisted in part of a steel head, through the air at unpredictable angles with violent force, and that it is capable of doing serious injury or even killing a human being. Benson is alleged to have kept the bombs in his store, open, unguarded, and easily accessible to children. It is alleged that his son, David Benson, 12 years of age, obtained possession of one of said bombs from his father's store, the son being permitted the general run of the store and allowed by his father to obtain from the store any merchandise therein without purchasing the same or obtaining prior permission; that young David Benson threw said bomb at the plaintiff in order to scare him as he was standing on the street in front of Benson's store; and that the bomb struck the pavement near the plaintiff, exploded, and struck him in the face and left eye, causing him to lose the sight of his eye.
Negligence is charged against Milton Bradley Company in selling the bombs to Benson for distribution through a retail store to the public, and negligence is charged against Benson in keeping said bombs in his store unprotected and unguarded, and in allowing and permitting his son to obtain possession thereof, and to explode a bomb within the City of Atlanta.
Negligence per se is also charged to both defendants in the alleged violation of an ordinance of the City of Atlanta, as follows: It was alleged that the sale of the bombs by Milton Bradley Company to Benson was made in the City of Atlanta, and that the defendant corporation knew at the time of the sale that the store of Benson where the bombs were delivered was located at 474 Boulevard, in the City of Atlanta; that each of the defendants knew, or in the exercise of due care should have known, of the inherent danger of said bombs, their dangerous character being apparent from a mere casual inspection thereof; and that said bombs, being in the nature of an exploding toy, were particularly attractive to young boys. The plaintiff alleged that his injuries and damages suffered and sustained were the direct and proximate result of the negligence of the two defendants as set out in his petition.
The defendants filed separate general demurrers to the petition, both of which were overruled in one order passed by the trial judge, the court holding that the petition stated a cause of action as to each of the defendants. Each defendant, by a separate bill of exceptions, excepted to this ruling. The sole question presented is whether the petition set out a cause of action as to either defendant. The two cases in this court can be decided in one opinibn.
No. 32395:W. K. Meadow and Spalding, Sibley, Troutman & Kelley, Atlanta, for plaintiff in error.
J. Richmond Garland, Louis M. Tatham, and Rache Bell, Atlanta, for defendants in error.
No. 32418:Rache Bell, Atlanta, for plaintiff in er-ror.
J. Richmond Garland, Louis M. Tatham, W. K. Meadow, and Spalding, Sibley, Troutman & Kelley, Atlanta, for defendants in error.
The trial judge, after citing a number of other cases in his order overruling the general demurrers, states that the cases of Spires v. Goldberg, 26 Ga.App. 530, 106 S.E. 585, and Hulsey v. Hightower, 44 Ga. App. 455, 161 S.E. 664, are of great assistance in deciding this case. In the latter case Hulsey was sued for furnishing a long-bladed knife to his minor son with which he stabbed the plaintiff. The son, 15 years of age, was alleged to be inexperienced in handling knives, careless, reckless, and indifferent as to the rights of others, which was known or should have been known by the father. This court held, one judge dissenting, that the father was not liable for the tort of his minor child, with which he was in no way connected, which he did not ratify, and from which he did not derive any benefit, citing Chastain v. Johns, 120 Ga. 977, 48 S.E. 343, 66 L.R.A. 958, and that "the liability of a parent for the tort of a minor child, under the law of this state, is analogous to the liability of a master for the tort of a servant while employed in the master's business and in the scope of his employment, " [44 Ga.App. 455, 161 S.E. 666], citing several cases. It was also held that the liability of a father for the negligence or wrong of his child does not depend upon the parental relation, but rests upon the same grounds upon which the father will be responsible for the negligence or wrong of any other person. These principles were held to be applicable where it is sought to hold a father liable for an injury by his child, independently of any fault on the part of the father, but not applicable where a liability is claimed against the father for a negligent or wrongful act which is personal to himself, although the act of his child may be the immediate cause of the injury; and it was held that, "if the act of a child is legally traceable to the negligence of its father, the latter may be held responsible for injury and damage occasioned thereby; but in such a case the cause of action is founded upon the negligence of the father, and not upon the negligence of the child plus the paternal rela-tion."
In the Spires case the defendant sold to a minor, in violation of a criminal statute, a pistol and cartridges to be used in it, and the purchaser some two months later loaned the pistol to another minor to be used in target practice. This second minor took the pistol to school, for the purpose of returning it to the lender, and while playing with and demonstrating it to another minor, it was discharged and the plaintiff was injured. This court held that where one vio lated a penal statute in selling a pistol to a minor, and injury results therefrom, he should be held liable for the injury if it was a natural and probable consequence of the violation of the statute and should reasonably have been anticipated as a natural and probable result of the unlawful act. And if, subsequently to the original wrongful act, a new cause intervened sufficient of itself to stand as the cause of the injury, the former will be considered as too remote. But if the intervening cause...
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