Sagnibene v. State Wholesalers, Inc.

• Decision Date: 29 January 1968
• Docket Number: No. 43309,No. 2,43309,2
• Citation: 117 Ga.App. 239,160 S.E.2d 274
• Parties: Sam SAGNIBENE et al., Executors, v. STATE WHOLESALERS, INC., et al
• Court: Georgia Court of Appeals

Page 274

160 S.E.2d 274

117 Ga.App. 239

Sam SAGNIBENE et al., Executors, v. STATE WHOLESALERS, INC., et al.

No. 43309.

Court of Appeals of Georgia, Division No. 2.

Jan. 29, 1968.

Rehearing Denied Feb. 14, 1968.

Certiorari Denied April 9, 1968.

Syllabus by the Court

1. In this suit to recover against the parent for the shooting of plaintiff by an infant, the parent was not liable where it appeared that he was not negligent in creating the risk.

2. The Act of 1966 (Ga.L.1966, p. 424; Code Ann. § 105-113) is not applicable to this case as the four-year-old child was not capable of committing a wilful and wanton act.

Joe Sagnibene brought this suit against Louis Chanin and Chanin's employer, State Wholesalers, Incorporated, for the shooting of plaintiff by Chanin's four-year-old son.

The amended petition showed that on March 4, 1960, plaintiff was in a whiskey store operated by plaintiff's son in Macon. Chanin entered the store on his employer's business, accompanied by his child. On a shelf below the cash register there was a loaded pistol plainly visible to the child and to Chanin. On a previous occasion Chanin had picked up the pistol and inspected it. Chanin was aware that the child previously had been allowed to play with toy pistols and see television programs portraying the use of pistols, and thus had the propensity to fire a pistol, not knowing the difference between toy pistols and real ones. The child was of such tender years that he could not have criminal intent, but was likely to pick up, promiscuously point, and pull the trigger of a loaded pistol that was accessible to him, and Chanin knew this. Frank Sagnibene warned Chanin that he should watch the child because the child was near the pistol, but Chanin took no action and negligently permitted the child to wander several feet from him, pick up the pistol and shoot plaintiff, severing plaintiff's spinal cord. The child was in his father's view, and several seconds intervened between the warning and the firing of the pistol.

After the original plaintiff's death, the court substituted his executors as parties plaintiff. The executors took this appeal from the Court's judgment sustaining defendant's renewed general demurrers to the amended petition.

Adams, O'Neal, Steele, Thornton & Hemingway, Robert S. Slocumb, Macon, for appellants.

Jones, Sparks, Benton & Cork, Edward L. Benton, Willis B. Sparks, III, Martin, Snow, Grant & Napier, Cubbedge Snow, Carr Dodson, Macon, for appellees.

BELL, Presiding Judge.

Recovery against a parent for an injury committed by his minor child has been allowed in a humber of cases where the parent negligently furnished, or permitted the child access to an instrumentality with which the child likely would injure a third person. Thus the parent was held liable in Davis v. Gavalas, 37 Ga.App. 242, 139 S.E. 577 (velocipede); Milton Bradley Co. v. Cooper, 79 Ga.App. 302, 53 S.E.2d 761, 11 A.L.R.2d 1019 (fire-crackers); Faith v. Massengill, 104 Ga.App. 348, 121 S.E.2d 657 (BB gun); Herrin v. Lamar, 106 Ga.App. 91, 126 S.E.2d 454 (riding rotary lawn mower); Glean v. Smith, 116 Ga.App. 111, 156 S.E.2d 507 (pistol); and McBerry v. Ivie, 116 Ga.App. 808, 159 S.E.2d 108 (shotgun). In cases where the parent has furnished or permitted the child access to an instrumentality, the question is whether the facts of the case impose on the parent a duty to anticipate injury to another through use of the instrumentality. Chester v. Evans, 115 Ga.App. 46, 49, 153 S.E.2d 583. Compare, Assurance Co. of America v. Bell, 108 Ga.App. 766, 772(4), 134 S.E.2d 540. But the mere fact that the child escapes the supervision of a parent and the parent knows that harm is likely to result from the absence of parental supervision is not sufficient to allege actionable negligence. Assurance Co. of America v. Bell, 108 Ga.App. 766, 775, 134 S.E.2d 540, supra. And the parent is not liable under the test stated in the Chester and Bell cases where the parent was not negligent in creating the risk in the first instance.

As a general rule, liability of a parent for an injury committed by his child is governed by the ordinary principles of liability of a principal for the acts of his agent, or a master for his servant. Chastain v. Johns, 120 Ga. 977, 978, 48 S.E. 343, 77 L.R.A. 985; Stanford v. Smith, 173 Ga. 165-168, 159 S.E. 666; Hulsey v. Hightower, 44 Ga.App. 455, 458, 161 S.E. 664. 'A father is not liable for the tort of a minor child, with which he was in no way connected, which he did not ratify, and from which he did not derive any benefit, merely because of the relationship of parent and child.' Griffin v. Russell, 144 Ga. 275, 277, 87 S.E. 10, 11; Yancey v. Munda, 93 Ga.App. 230(1), 91 S.E.2d 204. The general rule still obtains except as modified by an Act of 1966 (Ga.L.1966, p. 424; Code Ann. § 105-113). This Act, however, is not applicable here as the child, being only four years old, was not capable of committing a wilful and wanton act. See Code §§ 26-302, 105-1806.

In applying the foregoing principles on general demurrer, the petition must be construed most strongly against the pleader; it...