Stoelting v. Hauck, s. A--8

• Decision Date: 30 June 1959
• Docket Number: A--9,Nos. A--8,s. A--8
• Citation: 56 N.J.Super. 386,153 A.2d 339
• Parties: Thomas STOELTING, Plaintiff-Respondent, v. Anthony M. HAUCK, Jr., and Virginia Hauck, Defendants-Appellants, and Sandra Hauck, by her Guardian ad litem, John Hauck, 11, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 386

56 N.J.Super. 386

153 A.2d 339

Thomas STOELTING, Plaintiff-Respondent, v. Anthony M. HAUCK, Jr., and Virginia Hauck, Defendants-Appellants and Sandra Hauck, by her Guardian ad litem, John Hauck, 11 Defendant-Appellant.

Nos. A--8, A--9.

Superior Court of New Jersey Appellate Division.

Argued April 13, 1959.

Decided June 30, 1959.

Allen C. Mathias, Jersey City, argued the cause for defendants-appellants Anthony M. Hauck, Jr. and Virginia Hauck (Smith, James & Mathias, Jersey City, attorneys).

C. Ryman Herr, Jr., Flemington, argued the cause for defendant-appellant Sandra Hauck (Herr & Fisher, Flemington, attorneys).

Jules B. St. Germain, Lynbrook, N.Y., admitted pro hac vice, argued the cause for plaintiff-respondent (Joseph D. Maher, Jr., Newark, attorney).

Before Judges GOLDMANN, CONFORD and FREUND.

The opinion of the court was delivered by

CONFORD, J.A.D.

On April 3, 1957, while a house guest and business visitor at the home of the defendants, Anthony M. Hauck, Jr. and his wife, Virginia Hauck, the plaintiff was seriously wounded by gunfire from a weapon in the hands of the defendant, Sandra Hauck, daughter of the other defendants, and 15 1/2 years of age at the time. In his amended complaint the plaintiff sued the minor defendant for negligence in discharging the firearm and the adult defendants for negligence in supervision of the girl with respect to firearms and in permitting the weapon with which he was injured to remain in a place accessible to her. The complaint also charges violation by the defendants of N.J.S. 2A:151--10, 11, as amended, N.J.S.A., making criminal the furnishing to or use by minors of certain ages of firearms under specified circumstances.

At trial in the Hunterdon County Court before a judge and jury plaintiff recovered a verdict against all three defendants in the sum of $100,000. A motion for a new trial based upon asserted trial errors and mistake in and excessiveness of the verdict was denied.

Plaintiff was 52 years of age when the shooting occurred. He was associated with the defendant, Mr. Hauck, in certain mining ventures, and had been a guest of the latter at his home in Clinton on many occasions, some of extended duration, over a period of years. For a number of months prior to April 3, 1957 his stays there were at the average rate of once or twice a week. He was married, but apparently separated from his wife, who was in California. A third associate in these mining ventures was one Rolf L. Meuer, who apparently lived at the Hauck home intermittently since March 1956. When the latter first came there he had with him a .45 caliber Colt revolver. For at least several months prior to April 3, 1957 this weapon, loaded, was kept by Meuer in a paper bag in a desk in the second floor front bedroom of the Hauck home, which, for some appreciable time prior to the date mentioned, was occupied as a bedroom by Sandra. The revolver was removed from the desk only on Fridays, when a maid from Clinton Reformatory worked in the house.

Sandra had fired this weapon, but only once, on a previous occasion--at the firing range at the Annandale reformatory in the summer of 1956. She had gone there with friends, including a state trooper, to the knowledge of her parents. The previojs evening Sandra had handled a number of firearms at the dinner table in the presence of the adult defendants. One of these was the property of Mr. Hauck.

Sandra had seen Meuer unload the Colt revolver and put it in the desk in her room about three weeks before the shooting incident. Mrs. Hauck had also seen the revolver in the same desk at a time when that particular bedroom was being occupied by Meuer.

Sandra testified that she had handled other revolvers which were kept in the house, both at the Clinton home and at a farm from which they had moved some years previously, but in depositions admitted in evidence she testified she was 'never taught anything about a revolver.'

Plaintiff testified that in August 1956 he saw Sandra wearing a .45 Colt automatic, inferably Meuer's, on a belt in a holster while coming through the Hauck kitchen. He immediately told Mrs. Hauck that it was 'very foolish' to let the girl go about carrying the .45, but her response was that 'She (Sandra) knows what she is doing.' Several weeks later he observed Sandra, accoutered with the same gun and holster, coming through the dining room of the house practicing 'quick draws.' She told him the gun was loaded, and he warned her to stop it, that it was 'very foolish, dangerous.' He took the matter up with Mrs. Hauck again, and she referred him to Mr. Hauck. The latter said, 'Sandra is not foolish with weapons,' and 'knows how to handle them.'

Plaintiff introduced photographs in evidence which the jury could have found were taken by Mr. Hauck in the back yard of the house in the summer or fall of 1956, one showing Sandra photographing Mr. Meuer while wearing a hip holster and revolver, and another of her posing with a pointed weapon. The jury could have found from the testimony that this was a .38 'special.' Mr. Hauck owned such a gun.

On the late evening of April 2, 1957 plaintiff and Mr. Hauck were conversing in the dining room on the first floor of the house. Plaintiff had come to the Hauck home on this occasion to attend a corporate stockholders meeting. It appears that about midnight the plaintiff, referring to his own wife, said something to the effect that 'she's had her last chance to save her neck.' Sandra had gone up to bed shortly before and may have overheard the remark and interpreted it as referring to her own mother. Plaintiff and Mr. Hauck, sharing the same bedroom on the second floor, about 25 feet from Sandra's, went up to retire about 1:00 A.M. The men were in separate beds and plaintiff had fallen asleep when he awakened to hear Mr. Hauck say,' Tom, were we not talking about Georgia (Stoelting's wife)? ' to which he responded, 'Yes.' Hauck went on, 'Sandra thinks we were talking about Jean' (diminutive for 'Virginia,' Mrs. Hauck's first name). Plaintiff turned and saw Sandra at the foot of his bed, gun in hand, saying, 'Thomas Stoelting, I am going to kill you now.' Her father shouted, 'Don't shoot!' but the weapon discharged, the bullet penetrating plaintiff's abdominal wall. Sandra ran from the room screaming, 'I'm sorry.'

Sandra's answers to interrogatories were read into evidence on behalf of the plaintiff. In part, these were to the effect that she took the .45 Colt revolver from the desk in her room, thinking it was unloaded, walked down the hall to the rear bedroom occupied by plaintiff and her father, knocked on the closed door, and entered when someone said, 'Come in.' She walked to the foot of Stoelting's bed and asked him whether he had been talking about her mother. As he put his hand up toward his head she 'pulled the gun up in order to frighten him and it suddenly went off.'

I.

Probably the most important trial ruling attacked on the appeal was the refusal of the trial court to allow the defendants to offer proof or to cross-examine the plaintiff on the subject of alleged sexual relations between plaintiff and Sandra commencing about 1955 and continuing until about 11 months prior to the shooting. (Prior to the institution of the action herein, but after the shooting, Stoelting was tried and acquitted of criminal charges of carnal abuse of the girl.) The precise proffer of proof was stated by defendants' counsel at the trial as follows:

'Mr. Mathias: I would like to cross-examine this plaintiff upon incidents which happened within approximately a two year period prior to the day of the shooting. I want to ask him if he carnally abused this girl, if he handled her private parts, if he had intercourse with her of her own volition or by force, whether he applied drugs to her body, whether he supplied her with charms which were drilled out with drugs in them, whether he threatened her over a period of time concerning these relations, whether he threatened to kill her or kill her parents if she told of these relations and whether or not he had since--strike the 'since,'--whether he had within a month or so of the day of the shooting repeated his threats to her that, 'I will harm or kill your mother if you do not do what I want you to do."

The basis for the attempt to offer proof and conduct cross-examination on this subject now advanced is two-fold: first, as bearing upon plaintiff's alleged contributory negligence and assumption of risk; and, second, on the issue of the adult defendants' duty reasonably to foresee and therefore to act to prevent the harm which befell plaintiff. The second ground was never advanced before the trial court and therefore is out of order now. Disposition of the first point requires a close look at the pretrial order.

In the pretrial order plaintiff states his theories of recovery against the infant and adult defendants as based on negligence--in handling the weapon, and in supervision of the girl in respect to weapons, respectively--relying both upon the statutes cited above and general principles of tort liability for negligence. In the pretrial order the infant defendant denies negligence and claims the shooting was accidental 'in the sense of an unforeseeable, unpreventable occurrence not due to negligence.' This is explained, in substance, by the statement that the girl was in a highly emotional state precluding exercise of due care or formation of any intent in use of the gun, except to frighten the plaintiff, all because of certain unspecified actions of the plaintiff toward her, 'both physical and mental,' referred to only as 'plaintiff's relations with her, which were against her will and beyond her control.' It is further asserted that the said actions of plaintiff constituted contributory negligence and assumption of risk in that they were the sole cause of her condition; that 'his threats to her concerning herself and her mother' were...