Opinion
Docket No. 43, Calendar No. 36,916.
Submitted January 5, 1933.
Decided May 16, 1933.
Appeal from Kalamazoo; Weimer (George V.), J. Submitted January 5, 1933. (Docket No. 43, Calendar No. 36,916.) Decided May 16, 1933.
Case by Richard Klop, as administrator of the estate of Johannes Klop, deceased, against Cornelius Vanden Bos, Sr., and Cornelius Vanden Bos, Jr., for personal injuries resulting in death of plaintiff's decedent alleged to be due to the negligence of defendants. Verdict for both defendants. Judgment was entered for Cornelius Vanden Bos, Sr., and new trial granted as to Cornelius Vanden Bos, Jr. Plaintiff appeals. Affirmed.
William J. Howard, for plaintiff.
Charles H. Farrell and Charles L. Dibble, for defendants.
This action was brought to recover damages for injuries resulting in the death of Johannes Klop, a 12-year old boy who died from gunshot wounds inflicted by defendant Cornelius Vanden Bos, Jr.
The deceased in company with the defendant Cornelius Vanden Bos, Jr., and his younger brother, John Vanden Bos, went hunting rabbits. On returning from the hunt they passed through an open field. Cornelius was a short distance in advance of the other two boys. He carried a loaded double-barreled gun across his left arm. His attention was attracted to the boys behind him, and he turned about towards them with his gun pointing directly at the deceased. In some manner not clearly shown by the record, the gun was discharged, and the shot struck the deceased in the abdomen inflicting wounds from which he died a few hours later. It was the claim of the plaintiff that Cornelius either intentionally pointed the gun at the deceased or handled it so negligently that it became pointed at him and was discharged. Cornelius Vanden Bos, Sr., the father of Cornelius, Jr., owned the gun. He was made a party defendant on the theory that, considering the age and inexperience of his son, he was negligent in permitting him to use the gun.
On the trial, the defendants contended that the discharge of the gun was merely accidental, and that there was no actionable negligence on the part of either defendant. The jury evidently took this view of it, and rendered a verdict of no cause of action as to both defendants.
On motion of the plaintiff, the court granted a new trial as to Cornelius Vanden Bos, Jr., but entered a judgment on the verdict in favor of the father. The plaintiff has appealed.
It is the contention of the plaintiff that the trial court should have instructed the jury that the defendant Vanden Bos, Sr., was guilty of negligence as a matter of law, and, failing to do so, should have granted a new trial.
The evidence shows that Cornelius, Jr., was a normal boy, 18 years of age. He had used the gun on occasions for two years. In his testimony he demonstrated to the court and jury that he knew how to handle it and was perfectly familiar with its use. In fact, it appeared, as is usual with a boy of his age, that he knew more about guns than his father. The record shows no negligence on the part of the father. The court should have so instructed the jury. Not having done so, he was right in refusing to grant a new trial.
Both counsel have briefed the questions involved in the case of Cornelius Vanden Bos, Jr., and we are asked to consider them. As a new trial was granted in that case, from which there could be no appeal, the questions are not here for consideration.
The judgment is affirmed, with costs to Cornelius Vanden Bos, Sr.
CLARK, POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.