Sojka v. Dlugosz
| Decision Date | 27 February 1936 |
| Parties | SOJKA v. DLUGOSZ (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Two actions of tort in the superior court by John Sojka and Stanislaus Sojka, p. p. a., against Joseph Dlugosz, wherein there were findings by the trial judge for the plaintiffs in the sums, respectively, of $122.91 and $850 upon the report of an auditor, and the defendant appeals.
Orders and findings affirmed.
Appeal from Superior Court, Franklin County; T. J. Hammond, Judge.
W. L. Davenport, of Greenfield, for appellant.
A. S. McLaud and R. H. P. Jacobus, both of Greenfield, for appellee.
These are actions of tort arising out of the accidental shooting of the minor plaintiff, who will hereafter be called the plaintiff. The action in his name is for personal injuries. The plaintiff in the other action is his father, who sues for consequential damages caused by the injury to the plaintiff. There are two counts in each declaration, one based on common law negligence and the other on the violation of G.L.(Ter.Ed.) c. 140, § 130. The cases were referred to an auditor, whose findings of fact were to be final. The finding of the auditor and of the trial judge in each case was for the plaintiff on the first count. The finding on the second count was in favor of the defendant; therefore, it need not be considered. Objections filed by the defendant to the auditor's report were overruled, that report was confirmed, a finding was made for the plaintiff and damages were assessed in the amount found due by the auditor. Orders were entered accordingly. Appeals by the defendant bring the cases here. The facts displayed in the report of the auditor are these: The defendant at about noon of an October day in 1930 purchased a rifle and cartridges and took them to his home in the village of Turners Falls, where he lived with his wife and children. On his arrival some of his children, one being a son named Stanley then thirteen years of age, were at home for the noon school recess. He met Stanley before entering the house. The ages of the boys of the defendant,the subsequent use of the rifle by the boys during the afternoon, and all the circumstances attendant upon the purchase and use of the rifle led the auditor to find by inference from other facts that the defendant made some explanation of its use to some or all of his boys when he brought the rifle home. He then placed it in the pantry. Soon after the defendant went to his room to sleep in preparation for his work at night, and did not awaken until immediately after the shooting here in question. He did not forbid his son Stanley to use the rifle, nor did he give anyone any instructions. He left the cartridges which he had purchased at the same time as the rifle in the pocket of his sweater and left that hanging in the living room. He did not forbid his boys, or any of them, to use the rifle and did not warn any of them against its use. He did not give any requests to his wife with a view to preventing the use of the rifle or cartridges by any of his boys. He bought the rifle for the purpose of hunting squirrels and he had a hunting and fishing license, but had no intention to restrict the use of the rifle to his own personal use. The wife of the defendant was in the house attending to household duties during the afternoon up to the time of the shooting. After school hours on this date Stanley Dlugosz and three of his brothers and John Sojka, the latter a brother of the plaintiff, all used the rifle to shoot at tin cans and other targets in the yard behind the home of the plaintiff and in the nearby school yard. It does not appear which boy or boys obtained the rifle or the ammunition, but the use of these articles, if not their removal from the house was known to the wife of the defendant. Shortly after six o'clock that same afternoon, Stanley Dlugosz with three of the other boys joined in shooting at targets, which on account of the approaching darkness were illuminated with candles. This also was with the knowledge of the wife of the defendant. Later a brother of the plaintiff came to the home of the defendant. Stanley Dlugosz was present and told him of the gun and lifted the rifle and showed it, but put it down when requested by his mother. A younger brother of Stanley showed the visitor two pigeons which he said he had shot with the rifle. Later still another boy came in and asked Stanley to let him see the gun. Stanley obtained the gun and they went together to one side of the house and Stanley shot once at a tree. They then went to the tree to see if they could locate the mark of the shot upon it. The plaintiff, then nine years of age who was near his own home and about three hundred feet away, came to the place where the other two boys were. The gun was loaded, apparently by Stanley Dlugosz. He then made some suggestion in the nature of a warning to the plaintiff, who was standing nearby. To open the chamber of the gun required a downward pressure on a pin extending out from the rear of the barrel. Stanley Dlugosz made some movement with this device at the breach of the rifle, which he said was for the purpose of showing the plaintiff that the rifle was loaded; but the latter did not know of this purpose and was not aware of any warning. Stanley...
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Carter v. Yardley & Co.
...proper inspection. Recovery in tort was allowed, although there was no contractual relation between the parties. In Sojka v. Dlugosz, 293 Mass. 419, 200 N.E. 554, the plaintiff recovered for being accidentally shot by a boy to whom the defendant had entrusted a gun without proper instructio......
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Kuhns v. Brugger
...year old boy was held liable for injuries inflicted by the discharge of an air gun which the father had given the boy); Sojka v. Dlugosz, 293 Mass. 419, 200 N.E. 554 (father purchased a rifle and cartridges which he showed to his 13 year old son but gave no warning of its use nor forbade it......
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Jupin v. Kask
...sound public policy favors imposition of a duty in these circumstances. A firearm is a dangerous instrumentality. See Sojka v. Dlugosz, 293 Mass. 419, 423, 200 N.E. 554 (rifle is "highly dangerous instrumentality"). It is beyond question that a heightened amount of care is required of perso......
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Carter v. Yardley & Co.
... ... Recovery in tort was allowed, although there was no ... contractual relation between the parties. In Sojka v ... Dlugosz, 293 Mass. 419 , the plaintiff recovered for ... being accidentally shot by a boy to whom the defendant had ... entrusted a gun ... ...