Singer v. Marx

• Decision Date: 25 September 1956
• Court: California Court of Appeals Court of Appeals
• Parties: Denise SINGER, a minor, by Mortimer Singer, her Guardian ad litem, and Mortimer Singer, Plaintiffs and Appellants, v. Zeppo MARX, Marion Marx and Tim Marx, Defendants and Respondents. Civ. 21589.

Page 440

301 P.2d 440

144 Cal.App.2d 637

Denise SINGER, a minor, by Mortimer Singer, her Guardian ad litem, and Mortimer Singer, Plaintiffs and Appellants, v. Zeppo MARX, Marion Marx and Tim Marx, Defendants and Respondents.

Civ. 21589.

District Court of Appeal, Second District, Division 2, California.

Sept. 25, 1956.

Hearing Denied Nov. 21, 1956.

Toxey H. Smith and Robert G. Beverly, Los Angeles, for appellants.

Schell, Delamer 3 Loring, Los Angeles, for respondents Zeppo Marx and Marion Marx.

Betts, Ely & Loomis, Los Angeles, for respondent Tim Marx.

ASHBURN, Justice.

Plaintiff Denise Singer, a minor, sues Tim Marx, another minor, for personal injury alleged to have been inflicted upon her (1) through his negligence, and (2) through a battery of her person, She seeks recovery from Tim's parents, Zeppo Marx and Marion Marx, on the theory of their negligent failure to control Tim's known penchant for throwing rocks at other people. Denise's father also sues the parents of Tim for recovery of expenses incurred by him as a result of his child's injury, the charge being negligence upon the part of the parents. The trial judge granted a nonsuit as to both plaintiffs and all causes of action. Plaintiffs appeal.

'Under well-established rules we must, in considering whether the judgment of nonsuit was proper, resolve every conflict in their testimonies in favor of plaintiff, consider every inference which can reasonably be drawn and every presumption which can fairly be deemed to arise in support of plaintiff, and accept as true all evidence adduced direct and indirect which tends to sustain plaintiff's case.' Lashley v. Koerber, 26 Cal.2d 83, 84, 156 P.2d 441, 442. To same effect see Raber v. Tumin, 36 Cal.2d 654, 656, 226 P.2d 574; Blumberg v. M. & T. Inc., 34 Cal.2d 226, 229, 209 P.2d 1. In the following discussion the court assumes as established all evidence and all inferences favorable to plaintiffs' causes of action.

On September 13, 1953, Tim Marx was nine years of age. Plaintiff Denise was eight and Barbara Corcoran was also eight. They are the only eyewitnesses to the episode under examination. Tim and Denise were on the front lawn of the Singer residence, which was located on the north side of the street fronting south. Barbara was riding a bicycle back and forth on the pavement. At the time the injury was inflicted upon her Denise was some six, eight or ten feet north of the sidewalk and Tim was to her left and rear about four feet away. The children were not playing any game. Tim had been throwing rocks into or across the street and talking about how far he could throw. Neither girl threw any rocks or clods. Immediately preceding Tim's striking Denise in the eye with a rock, which he admitted, Barbara was riding easterly on the sidewalk and entering upon the Singer property at the west side, about 30 feet from Denise. Tim, who was looking at plaintiff, said to her, 'watch Barbie.' He had not previously thrown at her or Barbara. Denise looked toward Barbara and then back at Tim and at the same moment was struck in the eye by the rock, which was a flat, rough one about the size of a small hen's egg. Barbara saw him throw at an angle toward her; saw him let go of the rock but did not see it strike plaintiff. Denise heard him say 'watch Barbie' and saw him raise his arm in the throw but did not see the rock leave his hand. She was struck immediately in the left eye. The line of throw toward Barbara would pass several feet in front of Denise. For the rock to strike her, one of two things would have to occur, either (1) Tim changed the direction of throw without any warning, or (2) he held the rock too loosely, or let go of it too soon to control its flight, and inadvertently hit Denise. The evidence is susceptible of either of these inferences.

The general proposition that an infant is liable for his torts is established in this state by statute. Civil Code, § 41, says: 'A minor * * * is civilly liable for a wrong done by him, but is not liable in exemplary damages unless at the time of the act he was capable of knowing that it was wrongful.' That statute, it will be noted, does not imply as an element of liability for compensatory damages the existence of capacity to appreciate the wrongful character of the act. But the cases have engrafted upon it certain reasonable qualifications about to be discussed.

An infant who forcibly invades the person of another is liable for a battery regardless of an intent to inflict injury; the only intent which is necessary is that of doing the particular act in question--in this case throwing a rock at somebody. This matter is discussed in Ellis v. D'Angelo, 116 Cal.App.2d 310, at page 316, 253 P.2d 675, at page 678, in which it was held that, although a four-year-old child is, as a matter of law, incapable of negligence, the complaint nevertheless stated a cause of action for battery against the same child. At page 315 of 116 Cal.App.2d, at page 677 of 253 P.2d it is said: 'From these authorities and the cases which they cite it may be concluded generally that an infant is liable for his torts even though he lacks the mental development and capacity to recognize the wrongfulness of his conduct so long as he has the mental capacity to have the state of mind necessary to the commission of the particular tort with which he is charged. Thus as between a battery and negligent injury an infant may have the capacity to intend the violent contact which is essential to the commission of battery when the same infant would be incapable of realizing that his heedless conduct might foreseeably lead to injury to another which is the essential capacity of mind to create liability for negligence.' At page 317 of 116 Cal.App.2d, at page 678 of 253 P.2d: 'When it comes to the count charging battery a very different question is presented. We certainly cannot say that a 4-year-old child is incapable of intending the violent or the harmful striking of another. Whether a 4-year-old child had such intent presents a fact question; and in view of section 41 of the Civil Code which makes the recognition of the wrongful character of the tort immaterial so far as the liability for compensatory damages is concerned, we must hold that the count charging battery states a cause of action.'

Certainly it cannot be said as a matter of law that Tim did not have sufficient mental capacity to intend the harmful striking of another. If he indicated to both girls that he was throwing at Barbara and then aimed at Denise, whom he hit, he was plainly liable to her for a battery.

This matter of intent in a battery case is also discussed in Lopez v. Surchia, 112 Cal.App.2d 314, 246 P.2d 111, which involved an adult defendant who had shot plaintiff and claimed self-defense. At page 318 of 112 Cal.App.2d, at page 113 of 246 P.2d: "The true rule is that intent is the gist of the action only where the battery was committed in the performance of an act not otherwise unlawful * * *. If the cause of action is an alleged battery committed in the performance of an unlawful or wrongful act, the intent of the wrongdoer to injure is immaterial. In other words, if the defendant did an illegal act which was likely to prove injurious to another, he is answerable for the consequence which directly and naturally resulted from the conduct, even though he did not intend to do the particular injury which followed. 6 C.J.S., Assault and Battery, § 10."

While throwing rocks at trees or into the street ordinarily is an innocent and lawful pastime, that same act when directed at another person is wrongful. The evidence at bar (combining that of Barbara with portions of Tim's own testimony) warrants an inference that Tim threw at Barbara and inadvertently struck Denise. In such circumstances the doctrine of 'transferred intent' renders him liable to Denise. On this subject the Lopez case, supra, says at page 318 of 112 Cal.App.2d, at page 113 of 246 P.2d: "If defendant unlawfully aims at one person and hits another he is guilty of assault and battery on the party he hit, the injury being the direct, natural and probable consequence of the wrongful act. (6 C.J.S., Assault and Battery, § 10, subd. 2.)" See also, Prosser on Torts, 2nd Ed., p. 33. The rule is not confined to criminal cases, as argued by respondents.

The negligence of a minor is to be determined upon the basis of whether he used that degree of care ordinarily exercised by children of like age, mental capacity and experience; and that question is usually one of fact for the jury. 19 Cal.Jur. § 41, p. 605. In Smith v. Harger, 84 Cal.App.2d 361, 369-370, 191 P.2d 25, the question was held to be one of fact in the case of a five-year-old boy.

Tim was nine years old and there is nothing in the record to warrant a holding as matter of law that he could not be guilty of negligence. That was for the jury to decide. And the question whether he did use the care required of a boy of nine was also one of fact. If, as he testified, the rock slipped out of his hand prematurely, that presents a question of what care was required of a nine-year-old rock thrower who was throwing in the presence of other children and recognized at the time that that is a dangerous practice and so testified.

Incidents occurring in the playing of organized games do not present controlling analogies. These children were not playing a game; the girls were not throwing rocks; Tim alone was performing and he was not under the pressure of a contest. Therefore, cases such as Hoyt v. Rosenberg, 80 Cal.App.2d 500, 182 P.2d 234, 173 A.L.R. 883, are inapplicable. Nor do we have upon this appeal any question of assumption of risk, as was the case in Quinn v. Recreation Park Ass'n, 3 Cal.2d 725, 46 P.2d 144.

We hold that the evidence at bar would sustain an inference that Tim (1) deliberately threw the rock at plaintiff, or (2) threw the rock at Barbara and accidentally struck plaintiff, or (3)...