Summary
holding that evidence presented a jury question regarding foreseeability when defendant left a loaded pistol in a senile person's bedroom drawer and he used it to kill himself
Summary of this case from Burns v. SamOpinion
49120.
ARGUED MARCH 5, 1974.
DECIDED APRIL 5, 1974. REHEARING DENIED APRIL 18, 1974.
Action for damages. Glynn Superior Court. Before Judge Flexer.
J. S. Hutto Associates, Randall M. Clark, J. S. Hutto, for appellant.
Fendig, Dickey, Fendig Whelchel, Richard A. Brown, Jr., for appellees.
1. One possessing a dangerous instrumentality such as a loaded pistol is not an insurer against any harm it may cause, but he has a high duty to protect others from harm caused by it, and the burden is on him, when injury results from its falling into the hands of a child, or a senile or otherwise incompetent person who misuses it, to show that he could not have anticipated that some injury might thereby result.
Where a homeowner placed a senile patient in a bedroom, the patient's medicines were kept on top of a chest of drawers in the room and other medicines, along with a loaded pistol in the top drawer, it is a jury question whether these acts constituted negligence when the patient, while unattended, took the pistol from the drawer and caused it to discharge, thereby receiving fatal injuries.
2. Each of the beneficiaries specified by Code Ann. § 105-1302 has a separate right of action for the death of the husband and father, which the mother, if in life, brings on behalf of all of them. The negligence of one of the children-beneficiaries will, it goes without saying, bar recovery pro tanto, but it will not bar recovery for the benefit of other beneficiaries who were not negligent.
ARGUED MARCH 5, 1974 — DECIDED APRIL 5, 1974 — REHEARING DENIED APRIL 18, 1974.
The following facts in this case are essentially uncontradicted: The deceased Lloyd Davis and his wife, the plaintiff, were the parents of Sally Cox. Lloyd Davis was in very bad health and suffered from senility due to arteriosclerosis; his wife had been told in her daughter's presence by the attending physician that he would get progressively worse and would have to be closely watched. The deceased needed constant supervision; he could get around without too much help but there was constant danger of falling. His condition vacillated between irrational behavior and drug induced quietude and his memory was almost entirely gone. His insistence on leaving home caused the Coxes to take them into their home, giving up their own bedroom which was most suitable to the needs of the invalid. There was a chest near the foot of the bed on top of which the medicines belonging to the deceased were kept; in the top drawer was a loaded pistol and medicines belonging to Mrs. Cox. Early one morning after the Davises had been in the home for about a week, the plaintiff went to the kitchen to fix breakfast. While she was gone her husband got out of bed, opened the top drawer of the chest, removed the pistol, and either by accident or design shot himself in the head.
This action is for the value of the husband's life. The defendants moved for and were granted summary judgment, and plaintiff appeals.
1. The defendants freely admit that they knew the pistol was lying in the top drawer of the chest, knew it was loaded, knew the father was mentally incompetent, and would have removed it from his reach had it occurred to them that he might come upon it and use it. We see no distinction here between this case and the precedents of Glean v. Smith, 116 Ga. App. 111 ( 156 S.E.2d 507) and Johnson v. Tucker, 129 Ga. App. 648 ( 200 S.E.2d 489). In Glean the father left a pistol in a chest drawer and his infant son shot a playmate with it. In Johnson the driver of an automobile permitted another passenger to carry a loaded pistol which the latter picked up, accidentally injuring another passenger. Gunpowder is a dangerous instrumentality, and there is a duty on the owner to keep it properly within his control. Fielder v. Davison, 139 Ga. 509 (1), 510 ( 77 S.E. 618). All the more so is a loaded pistol in the hands of one who does not have full possession of his faculties. Whether that person suffers mental incapacity due to extreme youth or old age is not the question. Neither is it important, if the injury results from the incapacity of the actor, whether the injury is inflicted on self or others.
The true issue in the case is foreseeability, since "negligence, to be actionable, carries with it the concept of foreseeability." Deco Leasing Co. v. Harvey, 114 Ga. App. 217 ( 150 S.E.2d 699). Just as in Glean and Johnson, supra, the court cannot say on motion for summary judgment that it is legally unforeseeable that one who leaves a loaded pistol in a bureau drawer where medicines are stored could not anticipate that an ambulatory senile patient subject to spells of "wildness" would not come upon it, or having found it, would not mindlessly use it to work injury on himself or another.
2. The defendants further contend that the plaintiff mother is barred by the death statute (Code Ann. § 105-1302) from suing her daughter for the death of her husband, since under Code § 105-1304 she holds any recovery "as if it were personal property descending to the widow and children from the deceased." Defendants impliedly admit this contention was decided against them in Walden v. Coleman, 217 Ga. 599 ( 124 S.E.2d 265) but contend the Supreme Court was incorrect in so doing. We are bound by the case as written, and especially the statement on page 605 as follows: "[E]ach of the beneficiaries specified by Code § 105-1302 has a separate cause of action for the death of their husband and father, which the mother, if in life, asserts by action for all of them and in the instant case there is no reason why the defendant by proper pleadings could not have asked for a reduction in the amount which the plaintiff widow is seeking to recover from him to the extent of his wife's share in the full value of her father's life whose death was allegedly caused by her negligence." An adult child (as opposed to one unemancipated) may sue a parent for negligence ( Farrar v. Farrar, 41 Ga. App. 120 ( 152 S.E. 278), and it follows that a parent may also sue an adult child. The question raised, however, is not whether such an action will lie generally, but whether it lies under the death statutes where normally the mother sues for herself and her children and the recovery is divided between them. This it does, insofar as her share of the recovery is concerned. Under the Code the widow sues separately; she is the sole plaintiff. The defendant daughter is obviously not a plaintiff nor entitled to any part of the plaintiff's recovery, and that part of the recovery which would have been hers had the action been against a third party tortfeasor is to be subtracted from what would otherwise have been the full recovery, if any.
The appellees also cite Harrell v. Gardner, 115 Ga. App. 171 ( 154 S.E.2d 265) and Horton v. Brown, 117 Ga. App. 47 ( 159 S.E.2d 489). These cases have no bearing on the problem because they deal with the inhibition of actions between husband and wife. It was there held that since the mother, whose wrongful death was allegedly attributable to her husband, could not have sued him in tort had she survived, the children, whose right of action depends on hers, are foreclosed. Here, on the contrary, we have a mother, to whom a right is given by statute to sue in her own name, bringing an action against an adult child as the alleged tortfeasor. Against this no such prohibition lies.
The trial court erred in granting the defendants' motion for summary judgment.
Judgment reversed. Stolz and Webb, JJ., concur.