Weisbart v. Flohr

• Decision Date: 20 March 1968
• Court: California Court of Appeals Court of Appeals
• Parties: Dawn WEISBART, a minor, by Cllfford Weisbart, her guardian ad litem, Plaintiff and Appellant, v. Robert FLOHR, Lorraine Flohr and Dean Flohr, a minor, by his guardian ad litem, Robert Flohr, Defendants and Respondents. Civ. 897.

Page 114

67 Cal.Rptr. 114

260 Cal.App.2d 281

Dawn WEISBART, a minor, by Cllfford Weisbart, her guardian ad litem, Plaintiff and Appellant, v. Robert FLOHR, Lorraine Flohr and Dean Flohr, a minor, by his guardian ad litem, Robert Flohr, Defendants and Respondents.

Civ. 897.

Court of Appeal, Fifth District, California.

March 20, 1968.

Rehearing Denied April 16, 1968.

Hearing Denied May 15, 1968.

[260 Cal.App.2d 283] Anthony J. Scalora and Leonard P. Burke, by Anthony J. Scalora, Sacramento, for plaintiff and appellant.

[260 Cal.App.2d 284] Rust & Hoffman, David C. Rust, Sacramento, Ellis J. Horvitz, Los Angeles, and B. V. Yturbide, San Francisco, for defendants-respondents.

OPINION

CONLEY, Presiding Justice.

This case involves a tort committed by a seven-year-old boy, Dean Flohr, against Dawn Weisbart, a five-year-old girl neighbor. The plaintiff sued the boy on two theories, alleging

1) that he was negligent, and

2) that he was guilty of a battery.

The plaintiff also sued the parents, Lorraine Flohr and Robert Flohr, on the theory that they were negligently responsible for the wrong done by their son in that they did not properly restrain his use of the bow and arrow which caused the damage.

While the appeal was taken from the entire judgment, nothing was said in the briefs or in the oral argument on appeal with respect to the jury's verdict in favor of the mother and father, Lorraine and Robert Flohr. Neither is the jury's implied finding that there was an absence of technical negligence on the part of Dean Flohr seriously attacked on appeal. The contention of appellant rather is that the trial court committed reversible error by failing to grant plaintiff's motion for a directed verdict against Dean Flohr on the theory that he was responsible for the tort committed by him even if he was not technically negligent.

The evidence shows that Dean Flohr had a bow and arrow in his hands when he told Dawn Weisbart, his neighbor, in effect, 'If you don't get off the lawn in front of my house, I will shoot you with this bow and arrow,' and that after the threat he aimed the weapon in her general direction, pulled back the bow string, and shot his homemade arrow, with the result that her left eye was put out.

In attempting to extricate himself from blame, the infant defendant testified that he did not intend to strike the plaintiff in the face, and only to frighten her and to shoot at her feet near her, but that the arrow was deflected by his thumb so that it struck the plaintiff and destroyed her eye. However, as is said in 1 Restatement of the Law, Torts, Assault and Battery, section 20, page 46:

'If an act is done with the intention of inflicting upon another a harmful bodily contact or of putting the other in apprehension of either a harmful or offensive bodily contact and if it causes an offensive bodily contact to the other, the actor is liable to the other although the act was not done with the intention of bringing about the resulting offensive contact.'

In addition to asserting that the trial judge should have granted her motion for a directed verdict, plaintiff also claims that counsel for defendants was guilty of prejudicial misconduct by displaying and operating, over objection, a whole series of toys in his closing argument to the jury, none of which had been received in evidence and all of which were employed to prove the irrelevant contention that many toys misused by children are capable of causing severe injuries.

As we have already seen, there were two grounds alleged in the complaint for recovery by the plaintiff against Dean Flohr, negligence and the infliction of a battery considered entirely apart from negligence. In the first cause of action in paragraph III, it is alleged that the defendant, Dean Flohr, '* * * negligently and carelessly used a bow and arrow and negligently and carelessly shot an arrow so as to cause the said arrow to strike the minor plaintiff DAWN WEISBART in the left eye.'

The second cause of action alleges, among other things, that the parents of the defendant boy '* * * negligently and carelessly failed to take said bow and arrows from the said minor and negligently and carelessly permitted him to continue in possession of said bow and arrows and use said bow and arrows in and about the neighborhood.'

The plaintiff by permitted amendment added a third cause of action to his first amended complaint in which it was alleged as follows:

I

'Plaintiff repleads and realleges the allegations contained in paragraphs I and II of the first cause of action and by reference incorporates the same herein as though the same were fully set forth.

II

'That, on the 9th day of October, 1964, in the County of Sacramento, State of California, the defendant, DEAN FLOHR, a minor, wilfully pointed a bow and arrow at the plaintiff and in her direction from a distance of approximately 10 feet.

III

'That, at said time and place, the defendant DEAN FLOHR, a minor, wilfully shot the aforementioned arrow in the direction of the plaintiff; that said arrow, so shot and projected by the defendant, struck plaintiff in the left eye.

IV

'That, as a direct and proximate result of the aforesaid wilful acts of the defendant, plaintiff suffered the total and complete loss of her left eye all to her damage in the sum of $250,000.00.

V

'That, as a direct and proximate result of the wilful acts of defendant as aforesaid, plaintiff required and will in the future require, the services of physicians, nurses, hospitals, drugs, prosthesis, and other medical attention all to her further damage in a sum of which is unknown at this time and plaintiff prays leave of court to amend this complaint to insert the correct amount of said expenses at such time as they are ascertained.

VI

'That as a direct and proximate result of the wilful acts of defendant as aforesaid, plaintiff has been greatly impaired in her ability to earn wages in the future and has been greatly limited in her ability to compete for jobs in the future all to her further damage in the sum of $250,000.00.'

Thus, the suit was founded and tried on two theories as against the defendant Dean Flohr, one entirely based on the alleged negligence of the boy and the other not founded upon negligence but upon the theory that a wilful battery was committed against the little girl resulting in the loss of her eye and consequent damage to her throughout her life.

The question whether Dean Flohr was guilty of negligence depended on whether, in the opinion of the jury, the small boy acted as a reasonably prudent and careful person of his age in the circumstances proven in the record, and we believe that that matter of fact was one which the jury had a right to act upon. (Singer v. Marx, 144 Cal.App.2d 637, 301 P.2d 440; Christian v. Goodwin, 188 Cal.App.2d 650, 10 Cal.Rptr. 507.) The question remains, however, whether or not a boy of that age who wilfully threatens another child with harm through the shooting of an arrow at or toward her, and who thereafter makes good the threat and, consequently, inflicts an assault and battery on the other child, is responsible for the damage caused by him irrespective of whether or not he is guilty of technical negligence.

Section 41 of our Civil Code reads as follows:

'A minor, or person of unsound mind, of whatever degree, 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.'

In Prosser's Law of Torts (3d. ed. 1964), section 128, at pages 1024--1025, it is said:

'The law of torts, * * * has been more concerned with the compensation of the injured party than with the moral guilt of the wrongdoer, and has refused to hold that an infant is immune from tort liability. As Lord Kenyon said in a leading English case, 'If an infant commit an assault, or utter slander, God forbid that he should not be answerable for it in a court of justice.' (See Jennings v. Randall, 1799, 8 Term.Rep. 335, 337, 101 Eng.Rep. 1419.) Accordingly, infants are held liable for assault and battery, trespass to land, conversion, defamation, seduction, deceit, and negligence. The fact that a tort is committed by an infant under the direction of his parent may render the parent also liable but it will not excuse the infant.'

This statement of the general principle is that a minor, even though not guilty of negligence because of his actions in view of his age, is still answerable for the damage done by an assault.

In Ellis v. D'Angelo, 116 Cal.App.2d 310, 253 P.2d 675, it was held that a 4-year-old defendant could be sued properly for the damage caused by a battery '* * * (when he) pushed, impelled and knocked (the plaintiff) * * * violently to the floor.' In discussing the theory applicable to such a state of facts, Mr. Justice Dooling used the following language at pages 313--314, 253 P.2d at page 676:

'This section (section 41, Civil Code) is based upon sections 23 and 24 of the Field Commission's draft of a Civil Code which was submitted to the New York Legislature in 1895. This may be an anachronistic vestige of earlier common law principles, in other fields now outmoded, of liability without fault for trespass Vi et armis (see Bohlen, Liability In Tort of Infants And Insane Persons, 23 Mich.L.Rev 9) but it remains true that our Legislature in Civil Code, sec. 41 above quoted by providing that a minor or person of unsound mind is civilly liable for wrongs done by him, and particularly by the qualification that he shall not be held for exemplary damages unless he was capable of knowing that the act was wrongful, has indicated clearly that it intended that a minor or person of unsound mind should be liable in compensatory damages for his tortious conduct even though he was not capable of knowing the wrongful character of his act at the time that he committed it. Startling as this idea may be at first blush, we are bound by this...