Opinion
43309.
ARGUED JANUARY 10, 1968.
DECIDED JANUARY 29, 1968. REHEARING DENIED FEBRUARY 14, 1968.
Action for damages. Bibb State Court. Before Judge Phillips.
Adams, O'Neal, Steel, Thornton Hemingway. Robert S. Slocumb, for appellants.
Jones, Sparks, Benton Cork, Edward L. Benton, Willis B. Sparks, III, Martin, Snow, Grant Napier, Cubbedge Snow, Carr Dodson, for appellees.
1. In this suit to recover against the parent for the shooting of plaintiff by an infant, the parent was not liable where it appeared that he was not negligent in creating the risk.
2. The Act of 1966 (Ga. L. 1966, p. 424; Code Ann. § 105-113) is not applicable to this case as the four-year-old child was not capable of committing a wilful and wanton act.
ARGUED JANUARY 10, 1968 — DECIDED JANUARY 29, 1968 — REHEARING DENIED FEBRUARY 14, 1968 — CERT. APPLIED FOR.
Joe Sagnibene brought this suit against Louis Chanin and Chanin's employer, State Wholesalers, Inc., for the shooting of plaintiff by Chanin's four-year-old-son.
The amended petition showed that on March 4, 1960, plaintiff was in a whiskey store operated by plaintiff's son in Macon. Chanin entered the store on his employer's business, accompanied by his child. On a shelf below the cash register there was a loaded pistol plainly visible to the child and to Chanin. On a previous occasion Chanin had picked up the pistol and inspected it. Chanin was aware that the child previously had been allowed to play with toy pistols and see television programs portraying the use of pistols, and thus had the propensity to fire a pistol, not knowing the difference between toy pistols and real ones. The child was of such tender years that he could not have criminal intent, but was likely to pick up, promiscuously point, and pull the trigger of a loaded pistol that was accessible to him, and Chanin knew this. Frank Sagnibene warned Chanin that he should watch the child because the child was near the pistol, but Chanin took no action and negligently permitted the child to wander several feet from him, pick up the pistol and shoot plaintiff, severing plaintiff's spinal cord. The child was in his father's view, and several seconds intervened between the warning and the firing of the pistol.
After the original plaintiff's death, the court substituted his executors as parties plaintiff. The executors took this appeal from the court's judgment sustaining defendant's renewed general demurrers to the amended petition.
Recovery against a parent for an injury committed by his minor child has been allowed in a number of cases where the parent negligently furnished, or permitted the child access to an instrumentality with which the child likely would injure a third person. Thus the parent was held liable in Davis v. Gavalas, 37 Ga. App. 242 ( 139 S.E. 577) (velocipede); Milton Bradley Co. v. Cooper, 79 Ga. App. 302 ( 53 S.E.2d 761) (firecrackers); Faith v. Massengill, 104 Ga. App. 348 ( 121 S.E.2d 657) (BB gun); Herrin v. Lamar, 106 Ga. App. 91 ( 126 S.E.2d 454) (riding rotary lawn mower); and Glean v. Smith, 116 Ga. App. 111 ( 156 S.E.2d 507) (pistol); and McBerry v. Ivie, 116 Ga. App. 808 ( 159 S.E.2d 108) (shotgun). In cases where the parent has furnished or permitted the child access to an instrumentality, the question is whether the facts of the case impose on the parent a duty to anticipate injury to another through use of the instrumentality. Chester v. Evans, 115 Ga. App. 46, 49 ( 153 S.E.2d 583). Compare, Assurance Co. of America v. Bell, 108 Ga. App. 766, 772 (4) ( 134 S.E.2d 540). But the mere fact that the child escapes the supervision of a parent and the parent knows that harm is likely to result from the absence of parental supervision is not sufficient to allege actionable negligence. Assurance Co. of America v. Bell, supra. And the parent is not liable under the test stated in the Chester and Bell cases where the parent was not negligent in creating the risk in the first instance.
As a general rule, liability of a parent for an injury committed by his child is governed by the ordinary principles of liability of a principal for the acts of his agent, or a master for his servant. Chastain v. Johns, 120 Ga. 977, 978 ( 48 S.E. 343, 77 LRA 958); Stanford v. Smith, 173 Ga. 165-168 (159 S.E. 666); Hulsey v. Hightower, 44 Ga. App. 455, 458 ( 161 S.E. 664). "A father is not liable for the tort of a minor child, with which he was in no way connected, which he did not ratify, and from which he did not derive any benefit, merely because of the relationship of parent and child." Griffin v. Russell, 144 Ga. 275, 277 ( 87 S.E. 10, LRA 1916F 216, AC 1917D 994); Yancey v. Munda, 93 Ga. App. 230 (1) ( 91 S.E.2d 204). The general rule still obtains except as modified by an Act of 1966 (Ga. L. 1966, p. 424; Code Ann. § 105-113). This Act, however, is not applicable here as the child, being only four years old, was not capable of committing a wilful and wanton act. See Code §§ 26-302, 105-1806.
In applying the foregoing principles on general demurrer, the petition must be construed most strongly against the pleader; it will be construed in the light of its omissions as well as its averments. Mackler v. Lahman, 196 Ga. 535, 537 ( 27 S.E.2d 35); Toler v. Goodin, 200 Ga. 527, 534 ( 37 S.E.2d 609). The pleader's failure to allege essential facts will be construed to import the absence of those facts. Hulsey v. Interstate Life c. Co., 207 Ga. 167, 170 ( 60 S.E.2d 353); Sterling Materials Co. v. McKinley, 218 Ga. 574 (1) ( 129 S.E.2d 770); Covil v. Robert Co. Associates, 112 Ga. App. 163, 169 ( 144 S.E.2d 450).
The allegations that "The loaded pistol was plainly visible to the child and defendant Chanin" fails to show that Chanin actually saw it while approaching with the child. And the allegation that "Defendant Chanin had previously on another occasion picked up the loaded pistol, inspected it and placed it back at the same place, from which his child on this occasion picked it up" fails to show that Chanin knew or should have known the pistol was regularly kept in that location and that it was there when he brought the child into the store. Thus the pleaded facts, under applicable rules of construction, negate any negligence of Chanin in the creation of the risk. The petition therefore does not state a cause of action against him.
While the petition also contends that Chanin was negligent in failing to take positive action to prevent the injury after the risk was discovered, the general rule as to parental liability prevents a recovery on that theory of negligence, the allegations not showing that Chanin was guilty of negligence in the creation of the risk. If he was under a duty at that point, it was a moral duty to act to prevent the injury and not a legal one.
We wish to distinguish Skelton v. Gambrell, 80 Ga. App. 880 ( 57 S.E.2d 694) and Bell v. Adams, 111 Ga. App. 819 ( 143 S.E.2d 413). In those cases recovery was denied because it appeared that the proximate cause of the injury was the intervening independent criminal act of the minor, which could not reasonably have been foreseen by the parent. Here the minor was of such tender years that he was not capax doli.
The trial court did not err in sustaining the general demurrers of both defendants.
Judgment affirmed. Hall and Quillian, JJ., concur.