Martin v. Barrett

GRIFFIN, J.

Plaintiff Glenn Eugene Martin, individually and as guardian of Billy Frank Martin, a minor, 5 years of age, brought this action against George Barrett and his wife and their minor child, Lawrence, 12 years of age, alleging that the defendants owned a two-apartment dwelling house; that plaintiffs rented the upstairs apartment and defendants lived downstairs. Both shared the common back yard.

The charge is that defendant Lawrence Barrett “was at all times mentioned herein a careless, unreasonable, aggressive and reckless person, and had teased, molested and bullied plaintiff Billy and his brother ’ ’; that Lawrence was immature and lacked the judgment to be trusted with the use or possession of any gun without the close attendance and supervision of an adult person; that defendants George Barrett and Catherine Barrett, knowing all of these facts, negligently allowed and permitted said Lawrence Barrett to have possession of an air rifle in good working order; that on May 30, 1952, Catherine Barrett negligently permitted the defendant Lawrence Barrett to use said air rifle, together with the leaden shot therefor, on the porch of the Barrett apartment, and negligently permitted said Lawrence Barrett to shoot the air rifle from said porch into said back yard; and that defendant Catherine Barrett knew that Billy was then playing in said back yard with his 7-year-old brother; that one of the leaden bullets struck plaintiff Billy in the eye and destroyed the sight of it; that the injury sustained was proximately caused by the carelessness and negligence, of these defendants. Judgment is sought in the sum of $25,000 damages.

Defendants George and Catherine Barrett’s demurrer was sustained and plaintiffs were given 10 days in which to amend. They refused to amend and judgment of ■ dismissal followed.

The only question presented on this appeal is the sufficiency of the complaint to state a cause of action against the defendant parents.

[627]

Defendants rely principally upon

Hagerty

v.

Powers,

66 Cal. 368 [5 P. 622, 56 Am.Rep. 101], which holds in effect that a father is not liable in damages for the torts of his minor child committed without his knowledge, consent or sanction and not in the course of his employment of the child. There it was alleged that the father “willfully, carelessly, and negligently suffered, permitted, countenanced and allowed” his son of 11 years of age, to have in his possession a loaded pistol, which pistol the boy afterwards so carelessly used and handled as to shoot the infant child of the plaintiff. It was there held that no cause of action was stated against the father.