Wroth v. McKinney
| Decision Date | 07 July 1962 |
| Docket Number | No. 42577,42577 |
| Citation | 373 P.2d 216,190 Kan. 127 |
| Parties | Lee Roy WROTH, Appellee, v. L. L. McKINNEY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The pleadings examined in an action for wrongful death based upon defendant's negligence in leaving in plain view and easily accessible to an infant licensee a loaded revolver, which the infant obtained and with which he killed himself, and it is held, the trial court properly overruled defendant's general demurrer to plaintiff's petition.
Eugene W. Hiatt, Topeka, argued the cause and was on the briefs for appellant.
Rex A. Jemison, Topeka, argued the cause, and Wm. Carl Zimmerman, Topeka, was with him on the briefs for appellee.
This is an appeal in a wrongful death action from the order of the trial court overruling defendant's demurrer to plaintiff's petition.
The petition alleged plaintiff resided at 2526 Kentucky street, Topeka, that defendant resided on Rural Route No. 1, Pauline, and in pertinent part further alleged:
'IV.
'That plaintiff was employed by defendant on the 13th day of September, 1958, to do certain plumbing work at defendant's residence.
'V.
'It was the custom of plaintiff to bring his 4 year old son, Andrew, with him when working at defendant's residence, and had taken his son, Andrew, on other occasions with the knowledge and acquiescence of defendant, and on the 13th day of September, 1958, plaintiff took his son Andrew with him while working at defendant's residence, and defendant had full knowledge of Andrew Wroth's presence and acquiesced to his presence.
'VI.
'Defendant owned, maintained and controlled on defendant's premises a certain dangerous instrumentality, to-wit: A loaded revolver kept in defendant's bedroom in an easily accessible location.
'VII.
'Defendant knew, or should reasonably have known, that a loaded revolver in the easily accessible reach of a 4 year old child constituted a great hazard to life.
'VIII.
'Defendant wrongfully and negligently failed to take reasonable precautions to protect his guest, Andrew James Wroth, from coming into contact with said loaded revolver in the following respects:
'1. Failing to warn plaintiff of the existence of the dangerous loaded revolver.
'2. Failing to place revolver in a safe place out of the reach of 4 year old Andrew James Wroth.
'IX.
'X.
'Plaintiff further shows and alleges that defendant left the said loaded revolver in open view in defendant's bedroom on top of a dresser, and left the bedroom door open; that defendant knew, or should have known that the minor child, Andrew James Wroth, would see the revolver through the open bedroom door, would be attracted by the revolver, and that the loaded revolver constituted a great hazard to life in the hands of a child of tender years.'
Defendant demurred generally to the petition, which demurrer was overruled by the trial court, and hence, this appeal.
The only question presented for appellate review is the order of the trial court overruling defendant's general demurrer to plaintiff's petition.
We cannot agree with appellant's contention that under the allegations of the petition the child in question was a trespasser. The allegations of the petition are all that can be considered on this demurrer and we do not know what the evidence will show in support thereof but we believe they show the child was no less than a licensee on the premises whose presence was known to the defendant. Therefore, we shall proceed to the proposition as to whether the petition alleges negligence on the part of the defendant and whether that negligence was the proximate cause of the death of the child.
In 38 Am.Jur., Negligence, § 85, pp. 742-744, it is said that liability for keeping a dangerous instrumentality is not an absolute liability so as to make the defendant an insurer of a child in a situation such as is here involved, but that liability for negligence in respect to dangerous instrumentalities, as liability for negligence, generally arises from the failure to use due care. One knowingly dealing with such an instrumentality which may cause harm to others unless due care is exercised must answer for the results which follow from a negligent failure to exercise such care, and a higher degree of...
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...88 Mich. 225, 229, 50 N.W. 135 (1891); see generally Anno., 68 A.L.R.2d 782.8 In this connection we note the case of Wroth v. McKinney, 190 Kan. 127, 373 P.2d 216 (1962). There plaintiff, a plumber, took his four-year-old son with him while doing some plumbing work at defendant's residence.......
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