Rawley v. Commonwealth Cotton Oil Co.

• Decision Date: 12 December 1922
• Docket Number: 10685.
• Citation: 211 P. 74,88 Okla. 29,1922 OK 355
• Parties: RAWLEY v. COMMONWEALTH COTTON OIL CO. ET AL.
• Court: Oklahoma Supreme Court

211 P. 74

88 Okla. 29, 1922 OK 355

RAWLEY v. COMMONWEALTH COTTON OIL CO. ET AL.

No. 10685.

Supreme Court of Oklahoma

December 12, 1922

Syllabus by the Court.

It is well settled that the liability of a parent for the act of a minor son rests upon the same basic facts as the liability of a master for the acts of his servant, and does not result from the fact of the tort or act being purposely or willfully done, but from its being done in doing the master's or parent's business.

The law requires of persons having in their custody instruments of danger that they should keep them with the utmost care.

The mere employment of a watchman to guard property and keep away trespassers does not involve authority to shoot trespassers nor does it involve authority to loan firearms to children for any purpose.

Record examined, and held that the action of the trial court in sustaining a demurrer to the evidence was without error.

Appeal from District Court, Payne County; Arthur R. Swank, Judge.

Action by Milo Rawley, a minor, by J. R. Rawley, his father and next friend, against the Commonwealth Cotton Oil Company and others. From an order sustaining a demurrer to the evidence plaintiff appeals. Affirmed.

F. A Rittenhouse and Geo. B. Rittenhouse, both of Oklahoma City for plaintiff in error.

Wilcox & Swank, of Stillwater, for defendants in error.

KANE J.

This was an action for damages for personal injuries commenced by the plaintiff in error against the defendants in error. After the plaintiff introduced his evidence and rested, the trial court sustained a demurrer thereto, and it is to review this action that this proceeding in error was commenced.

The facts shown by the evidence to which the demurrer was sustained may be briefly summarized as follows:

Milo Rawley, the injured boy, together with several companions of about the same age, were at the time of the injury engaged in fishing in a pond situated on the premises of the Commonwealth Cotton Oil Company, a corporation, of which the defendants John H. Bellis and E. A. Smith were officers; William Bellis and Dearman Smith being their minor sons.

While young Rawley and his companions were engaged in fishing, the Bellis and Smith boys, one being armed with a 22-caliber target rifle and the other with a 36-gauge shotgun, approached and told the fishing party that they would have to pay a dime apiece for the privilege of fishing at the pond or get off the premises; that this command was made in pursuance of instructions received from their fathers, who they said would use the money thus collected for the purpose of keeping up the office of the Commonwealth Cotton Oil Company. After some little conversation along this line, the two boys with the guns departed without having collected any money and commenced hunting along the margin of the pond. Shortly thereafter, probably within 15 or 20 minutes, William Bellis discharged the target rifle at a flock of black birds, and the bullet, glancing from its course, found lodgment in one of young Rawley's eyes, totally destroying the sight thereof.

The undisputed evidence further shows that the two boys borrowed the guns from one Sylvester Brown, a negro employed as night watchman by the Commonwealth Cotton Oil Company; that the guns were the private property of Brown, who resided with his family in a house situated on the premises belonging to the Commonwealth Cotton Oil Company; that Brown had loaned a gun to William Bellis to hunt with on two other occasions, both times accompanying him on the trip, but that Dearborn Smith had never previously borrowed a gun from him; that neither Bellis nor Smith, pére, nor the Commonwealth Cotton Oil Company, had any knowledge that Brown owned the guns or that he ever loaned them to the boys.

Counsel for plaintiff in error state their theory of their case in their brief as follows: It is the theory of the plaintiff in error that he is entitled to recover in this case against the Commonwealth Cotton Oil Company by reason of the negligence of said company, acting through its employee, Brown, in delivering to the...