Stucker v. American Stores Company
| Citation | 159 A. 848,35 Del. 586 |
| Court | Superior Court of Delaware |
| Decision Date | 08 March 1932 |
| Parties | FRANCIS STUCKER, by his next friend, Frank Stucker, v. AMERICAN STORES COMPANY, a corporation of the State of Delaware, and RAY WALLS |
Superior Court for New Castle County; Action on the case for negligence, No. 117, January Term, 1931.
Case heard on demurrer to the first count of the plaintiff's declaration.
That count, in part, alleged: "On or about the third day of October, 1930, American Stores Company, one of the above-named defendants, operated a store located at the southeast corner of Twenty-fourth and Market Streets, in the City of Wilmington, State of Delaware, and on said date said American Stores Company, by its servant, requested and directed Francis Stucker, the plaintiff above named, who was then and there an infant of tender years, to-wit, about ten years of age, to deliver a quantity of merchandise from said store to a place known as 706 East Twenty-third Street, in said City of Wilmington, said merchandise then and there having been placed in a vehicle known as a child's express wagon for delivery to said address; that the said servant of said defendant, American Stores Company, was then and there acting within the scope and course of his duty in causing said merchandise to be delivered from said store but the said defendant, by its servant, knew or should have known that it was dangerous for said child to travel with said merchandise from said store to said address, and the plaintiff, by his next friend, avers that said defendant American Stores Company, was negligent in thus requesting and directing said infant plaintiff so to deliver said merchandise as aforesaid; that said infant plaintiff thereupon, pursuant to said request and direction, attempted to make delivery of said merchandise and, while traveling along and upon Twenty-third Street between Pine and Spruce Streets, in said City, the same then and there being in the direction of the address to which said merchandise was to be delivered, and while said infant plaintiff was in the act of conveying said merchandise to said address, a motor vehicle driven and operated by Ray Walls, the other of said defendants, negligently and carelessly ran into and struck said infant plaintiff with great force and violence, the negligence of said Ray Walls consisting in this, to-wit, that the motor vehicle so being driven by said Ray Walls was traveling upon the left hand side of said Twenty-third Street, in the direction in which said Ray Walls was then operating his motor vehicle; as the result of said collision the said Francis Stucker was then and there injured," etc.
The demurrer of the American Stores Company was on the ground that the first count of the plaintiff's declaration did not set out a cause of action against that company.
The demurrer is sustained.
Aaron Finger (of Richards, Layton and Finger) for plaintiff.
Clarence A. Southerland (of Ward and Gray) for the American Stores Company, one of the defendants.
OPINION
The plaintiff claims that the declaration alleges a joint negligent act on the part of The American Stores Company and Ray Walls, and that it also alleges that their joint negligence was the proximate cause of his injuries. See Hitchens v. Wil. & Phila. Trac. Co., et al, 3 W. W. Harr. (33 Del.) 377, 138 A. 617.
The American Stores Company on the other hand claims:
1. That the declaration does not charge any negligence whatever on the part of that company.
2. That in any event it does not appear that the act of that company was the real or proximate cause of the plaintiff's injuries but that on the contrary, it clearly appears that such injuries were wholly caused by the negligent act of Ray Walls, the other defendant.
The first count of the declaration, in substance alleges:
1. That the American Stores Company sent the infant plaintiff, a boy of ten years of age, from its store, located at Twenty-fourth and Market Streets in the City of Wilmington, to deliver certain merchandise in a child's express wagon to a designated place in that city (No. 706 East Twenty-third Street).
2. That that company knew, or should have known, that it was dangerous for the said infant plaintiff to so travel with said merchandise from its said store to the designated place of delivery, and that it was, therefore, guilty of negligence in having requested or directed him to so make such delivery.
3. That while the infant plaintiff was traveling on and upon Twenty-third Street in the act of conveying said merchandise to the designated place of delivery, he was negligently and carelessly hit and injured by a motor vehicle driven by Ray Walls, the other defendant, on the left hand side of Twenty-third Street in the direction in which the said Ray Walls was then operating his said motor vehicle.
The theory of the declaration apparently was that the American Stores Company was responsible for placing the infant plaintiff in a position of danger by sending him on an errand which it knew, or should have known, was dangerous; that by reason of his infancy he did not know, or could not appreciate, or discover such dangers, and that his injuries were in part caused thereby though in connection with the joint negligent act of Ray Walls, the other defendant.
Whether it is dangerous for a young boy to be on the public roads or streets of the City of Wilmington with an express wagon, and, therefore, whether from a legal standpoint it constituted negligence to send the plaintiff with such a wagon on the errand mentioned in the declaration, necessarily depends on the facts of the particular case. Mulligan v. Curtis, 100 Mass. 512, 97 Am. Dec. 121; McDermott v. Bost. El. Ry. Co., 184 Mass. 126, 68 N.E. 34, 100 Am. St. Rep. 548; Slattery v. Lawrence Ice Co., 190 Mass. 79, 76 N.E. 459; Pinto v. Brennan, 254 Mass. 298, 150 N.E. 86; Regan v. International R. Co., 205 A.D. 425, 199 N.Y.S. 601; Ryczko v. Klenotich, 204 A.D. 693, 198 N.Y.S. 473; Barker v. Savas, 52 Utah 262, 172 P. 672; Saxton v. Pittsburg Rys. Co., 219 Pa. 492, 68 A. 1022.
That it might constitute negligence in some cases is conceivable, but the question for us to determine is whether the first count of the declaration in this case alleges any such negligence on the part of the American Stores Company.
The plaintiff is alleged to be a boy of about the age of ten years and we are not prepared to say that without the allegation of some additional facts it necessarily constituted negligence to send him on an errand from Twenty-fourth and Market Streets to 706 East Twenty-third Street of the City of Wilmington, though with a child's express wagon. See cases above cited.
The relation of principal and agent between the American Stores Company and the infant plaintiff appears, as it is alleged that that company requested and directed the plaintiff to deliver certain merchandise and that the employee of the American Stores Company making such request or giving such directions was acting within the scope of his duty in causing the merchandise in question, to be delivered from said store.
That generally speaking there is a duty on the part of the principal not to send the agent into a place of danger where such danger, though known to the principal, is not known to the agent and is of such a character that it cannot be discovered by the exercise of ordinary care and caution on his part and may, therefore, be classed as a concealed danger is not denied. Nor is the fact that the violation of such duty constitutes negligence denied. Leech v. Husbands, 4 W. W. Harr. (34 Del.) 362, 152 A. 729.
Before the enactment of the Workmen's Compensation Act perhaps the most usual application of...
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Stucker v. Am. Stores Co.
... 159 A. 848 STUCKER v. AMERICAN STORES CO. et al. Superior Court of Delaware. New Castle. March 8, 1932. 159 A. 849 Action by Francis Stucker, by his next friend, Frank Stucker, against the American Stores Company and another. Demurrer of the American Stores Company to plaintiff's declarati......