Tatum v. Lance

Decision Date15 February 1960
Docket NumberNo. 41342,41342
Citation117 So.2d 795,238 Miss. 156
PartiesJames David TATUM, a Minor, by William D. Tatum, Jr., Father and Next Friend, v. Ellis LANCE and Louise Lance.
CourtMississippi Supreme Court

Bell & Gore, Grenada, for appellant.

Carothers & Fedric, Grenada, for appellee.

HOLMES, Justice.

James David Tatum, a minor, suing by his next friend and father, William D. Tatum, Jr., brought this suit in the Circuit Court of Grenada County against Ellis Lance and his wife, Louise Lance, seeking to recover damages for personal injuries alleged to have been suffered by the said James David Tatum as the result of having been hit in the eye by a shot fired from a BB gun by David Lance, the minor child of the said Ellis Lance and Louise Lance. At the conclusion of the evidence introduced on behalf of the plaintiff below, the defendants below moved the court for a directed verdict and said motion was sustained and judgment was accordingly entered dismissing the suit of the plaintiff. From this judgment the appellant, who was the plaintiff below, prosecutes this appeal.

The evidence is undisputed. The injuries sustained by the appellant were inflicted on January 28, 1958, at which time the said James David Tatum and David Lance were each seven years of age. Each lived with his respective parents in Sunnycrest Subdivision, a residential area located approximately three miles south of the corporate limits of Grenada. The two families lived a block or more apart and each of the said children attended the public schools in Grenada and were transported to and from school by school bus. On the day in question, both of said children had attended school. James David Tatum had carried to school with him on that day a small toy motorcycle. As they were returning to their homes on the school bus on the day in question, David Lance in some way got possession of the toy motorcycle and told the Tatum child that he could get the toy if he would some to his home for it. Both Mr. and Mrs. Lance, the parents of David Lance, worked. Mrs. Lance worked in the day time and Mr. Lance worked at night. The children were never left at home alone in the absence of Mr. Lance or Mrs. Lance. A maid was left in the home to look after the children. On the day in question the maid became ill about two o'clock in the afternoon, and it became necessary for Mrs. Lance to leave her work and return to her home and take the maid to a doctor. Mr. Lance went to the school for the purpose of getting David Lance and driving him home but missed him. It developed, therefore, that no adult was at the home of Mr. and Mrs. Lance to look after the children during the period shortly after the children had returned home from school. David Lance arrived home a little after four o'clock in the afternoon. James David Tatum arrived at his home at about four o'clock, left his school books there, then got his bicycle and rode to the Lance home. The children at the Lance home began to play in the backyard. The grandfather of David Lance had given him a BB gun and a quantity of shots or ammunition therefor as a Christmas gift prior to the happenings herein mentioned. When James David Tatum arrived at the Lance home, David Lance had the BB gun in his hand. The Tatum child then joined the other children in play. The children were climbing on top of a dog house but would not permit the Tatum child to climb up on the dog house and he announced that he was going home. David Lance was never permitted to have access to or possession of the gun and the shots without the supervision of one of his parents or some adult. The gun was kept unloaded in a closet in David's room, and the shots therefor had been hidden by the father of David Lance in a top dresser drawer under some of his clothes in the father's room.

Testifying, Mr. Lance said: 'He (referring to his son David) had strict orders not to take it (the gun) out of the house under any circumstances without some grown person with him, and his grandfather when he gave him the gun, you know, told him not to take it out without us or him or somebody with him. When he gave him the gun he made a special point to give him orders on that, and we would occasionally all along and as far as my knowledge he came and asked me one time to let him take it out besides the time I let him take it out.' He said that this request of his son was refused. The appellee, Ellis Lance, further testified that the gun was hard to cock and on occasions when he had gone out with his son to use the gun, he had had to cock it for him.

When the Tatum child announced that he was going home, David Lance aimed the BB gun at him and told him not to move or he would shoot. David Lance then discharged the BB gun, shooting four times, one of which shots struck the Tatum child in the eye inflicting serious injuries and necessitating the removal of the eye. Another of the shots struck one of the fingers of the Tatum child.

It is the contention of the appellant that the appellees were guilty of actionable negligence in that they permitted their said minor child, David Lance, to have the said gun in his possession or to have access thereto. It is argued by the appellants that the BB gun with shot provided therefor is a dangerous instrumentality and that the appellees were negligent in not exercising proper supervision over the use of said gun by their minor child so as to prevent injury to others.

The appeal involves the question of the liability of a parent for the tort or torts of his child, and further involves the question as to whether or not under the facts of this case the appellees should have reasonably foreseen that injury to someone would result from the gun in the hands of the Lance child, or whether or not such question should be left to the determination of the jury. In Winn v. Haliday, 109 Miss. 691, 60 So. 685, this Court held that a parent is not liable for the torts of his child solely on the ground of the relationship. In the case of Dempsey v. Frazier, 119 Miss. 1, 80 So. 341, 342, the Court held:

'The general rule of the common law is that the parent of a minor child cannot be held liable for the tortious acts of a child on the mere ground of the parental relationship, but that the parent is responsible only on the same ground that he is for the torts of other persons.'

The general rule is further stated in 67 C.J.S. Parent and Child Sec. 68, p. 798, as follows: 'As a general rule, a parent may be liable for an injury which is directly caused by the child, where the parent's negligence has made it possible for the child to cause the injury complained of and probable that the child would do so, as where the parent negligently permits a young child to use or have access to firearms or other dangerous weapons. * * *'

The gravamen of the appellant's complaint is that the appellees rendered accessible to their seven year old child the BB gun and the shot therefor, thus rendering accessible to him a dangerous instrumentality, and that they are therefore liable for the resulting injury. We do not think that this complaint is justified under the undisputed evidence in this case. We would have no hesitancy in holding that a BB gun accompanied by the shots or ammunition therefor in the hands of a seven year old child would constitute a dangerous instrumentality. The undisputed proof is, however, that the gun was kept unloaded in a closet in David Lance's room and that the shots or ammunition therefor were hidden by the father under his clothes in a dresser drawer in another room. Of course, the BB gun without the shots therefor would be entirely harmless. It is uncontradicted, however, that the gun and the shots therefor were kept apart by the parents of the Lance child, the gun being kept in a closet in David's room and the shot being kept concealed under clothes in the father's room. We cannot conceive what more could have been done by the parents...

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4 cases
  • Williamson v. Daniels
    • United States
    • Mississippi Supreme Court
    • October 7, 1999
    ...will not be held liable for the tortious acts of its minor child on the mere ground of the parental relationship. Tatum v. Lance, 238 Miss. 156, 161, 117 So.2d 795, 797 (1960) (quoting Dempsey v. Frazier, 119 Miss. 1, 80 So. 341, 342 (1919)); Winn v. Haliday, 109 Miss. 691, 69 So. 685 (1915......
  • Assurance Co. of America v. Bell
    • United States
    • Georgia Court of Appeals
    • December 2, 1963
    ...See also 67 C.J.S. Parent and Child § 68, p. 798. But the parent is not an insurer that the child will not harm another. Tatum v. Lance, 238 Miss. 156, 117 So.2d 795. In Knopf v. Muntz, Sup., 121 N.Y.S.2d 422, where a minor child playing football in the street injured a pedestrian, the cour......
  • Williams v. Davidson
    • United States
    • Arkansas Supreme Court
    • December 19, 1966
    ...past, left the weapon and the ammunition in an unlocked closet. His conduct may be contrasted with that of a father in Tatum v. Lance, 238 Miss. 156, 117 So.2d 795 (1960), who won a directed verdict upon proof that he had hidden the BB's for his son's gun under some clothes in an upstairs d......
  • Chandler v. Coleman, 1999-CA-01013-COA.
    • United States
    • Mississippi Court of Appeals
    • March 7, 2000
    ...of the defendant's negligence. Williamson at (¶¶ 13-14); see also 67 C.J.S. Parent and Child § 68, p. 798 and Tatum v. Lance, 238 Miss. 156, 117 So.2d 795 (1960). ¶ 17. As the Athridge court found Jorge's parents were not negligent in supervising him, we find no specific relation showing Je......

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