Wishart v. Claudio

[153]

DRAPER, P. J.

Plaintiff, a boy 10 years old, suffered severe permanent injuries when struck by a rifle bullet. After trial to the court without a jury, he recovered judgment against defendants Claudio, operators of the summer day camp plaintiff was attending; Prinkey, the instructor in charge of the group which included plaintiff; and Charles Unger, 16, who fired the bullet. Defendants Claudio and Prinkey appeal.

Shortly after noon, plaintiff and 12 or 13 other youngsters enrolled at the camp, aged 9 to 13, were taken on a nature Study walk by defendant Prinkey. They went outside the day camp grounds to a creek bed, where they stopped to examine plant and animal life. Some 10 or 15 minutes later, young Unger and two younger boys, none connected with defendants’ day camp, appeared. Unger had a .22 rifle. Prinkey talked to the three boys, who said they had been hunting, and intended to continue to do so. There is evidence that Prinkey thought young Unger held the gun awkwardly. Prinkey realized that the rifle was dangerous at some distance, but did not warn any of the three boys against shooting near the children of his group. Shortly thereafter he heard two shots. He assumed they were fired from a distance of several hundred yards, but there is testimony that the second shot was fired from a point only 30-45 feet from his charges. He did not warn or remove his group. A third shot was fired, and struck plaintiff.

The court found that defendant Prinkey, while acting as agent and employee of defendants Claudio and within the scope of this employment, “was negligent in the supervision of the plaintiff. ’ ’ Defendants requested special findings (Code Civ. Proc. §§ 632, 634, as amended in 1959). They contend that the finding made did not specify the acts or omissions of Prinkey which constituted negligence. It is established, however, that when negligence is the ultimate fact at issue, it may be found in general terms. The 1959 amendments did not change the basic rule as to form and content of findings. The trial court still is required to find only the ultimate facts, and findings upon merely evidentiary facts are unnecessary, and if made are surplusage

(Machado

v.

Machado,