Kuchlik v. Feuer

Townley, J. This is an action on behalf of a fourteen-year-old infant against the two defendants for damages resulting from the negligent operation by the infant defendant of an air rifle. The liability charged was, first, that the defendant Morris Feuer had given his son Milton a gun, and, second, that the defendant Morris Feuer was negligent in that he permitted his infant son to possess and operate the air rifle. There is no evidence to support the allegation that the air rifle had been given by the father to the son. The court found on the evidence that the gun belonged to the boy and that his parents knew he was using it. The father was held on the ground that his “ negligence made it possible for the child to cause the injury complained of and probable that the child would do so.” The court found that the mother also was [339] chargeable with lcnowledge but no judgment was given against her. There is no appeal from that decision. The accident happened on March 4, 1932, at nine o’clock in the evening. The plaintiff, while walking on the street, had been struck in the calf of the leg by a BB shot fired by the infant defendant. The boy companion of the plaintiff seized an air rifle belonging to a child by the name of Jacobs and pursued the defendant into a vacant lot where both boys began firing at each other, Plaintiff interfered and her escort stopped shooting. As she turned to speak to the defendant, she was struck by a BB shot fired by him and the sight of one of her eyes was partially destroyed. The substantial claim upon this appeal is that there is no evidence to support the finding of the trial justice that the father of the infant defendant had knowledge of his possession of the air rifle. Both the father and the mother denied such knowledge. There was, however, in my opinion, ample evidence to support the conclusion of the trial judge that such knowledge existed in the case of both father and mother, and that their denials were false. The father, mother and infant defendant all lived in the upper part of a two-family house in Bronx county. The apartment was a small one of three bedrooms, a living room, dining room and kitchen. The housework was all done by the mother who would naturally know what there was in the house. Both the father and the mother testified that the infant defendant was always truthful and frank with them, that they knew of his toys and belongings, and that he discussed with them any new toys that he had. The testimony showed that the air rifle had been in the possession of the infant defendant for more than two months prior to the accident. The plaintiff testified that in January, 1932, while visiting the Feuer home, she had seen Milton Feuer, the infant, shooting the air rifle from his bedroom window and that his mother was in an adjoining room. The mother testified that if it had been fired in her bedroom she would have heard it, but denied hearing any report of the gun. It is to be presumed that counsel and witness were referring to the boy’s room. In February, 1932, the plaintiff had seen the infant defendant shooting at the globes of the electric street lamps in front of his house. This was confirmed by the record of the electric light company. In March, on two occasions —- one, two days before the accident, and the other three days before the accident —' the infant was seen by neighbors on the street in front of the house with his air rifle and one of the neighbors testified she had seen him coming out of the house with it in his possession. On the night of the accident he was concededly again on the street with it. [340] There is much in this record which affords ample justification for the court’s refusal to accept the testimony of the father and mother on this subject. The father testified positively that the boy had never had an air rifle. On the hearing in the Police Court which followed the accident, a playmate of the infant defendant, named Kaplan, who was a constant visitor at defendant’s house, testified that a few days before the hearing he had seen an air rifle in the possession of the infant defendant in the presence of both the father and the mother. On this trial he attempted to change his testimony in this regard, but when confronted with the minutes of that hearing, admitted that he had said it and that it was true. What influence brought about this attempted change in testimony is a question which might readily occur to a trial judge and the reason for it might throw a flood of light on the amount of credit which might be given to the testimony of the father. The father, although in the hardware business for many years, even testified that he had never heard of BB shot except on one occasion some ten years before when he had seen someone using them to wash a milk bottle. A representative of the Children’s Society, O’Donnell, testified that the infant had told him that the gun had been given him by his father. This testimony is of course incompetent as against the father. But it was significant that the infant, when examined, suffered a complete loss of memory with regard to this admission as did a number of other boys called as witnesses in this case. We think that in view of all this testimony, the trial justice was warranted in disregarding the denials of both the father and the mother. The possession of the gun by the boy was open and notorious in the neighborhood. It was a positively established fact that the gun had been fired off in the apartment under such circumstances that the mother concededly must have heard it. She, therefore, must have had knowledge and her denial is false. The admission also of the father that he knew everything that his son possessed, coupled with the notorious possession of the rifle, is sufficient ground for disregarding his denial. As was stated by the Court of Appeals in Woloszynowski v. New York Central R. R. Co. (254 N. Y. 206): “ Knowledge may be established by circumstantial evidence, in the face even of professions of ignorance.” Plaintiff claims that liability of the father may be predicated on the knowledge of the mother alone even in the absence of actual knowledge by the father. (See Hawley v. Alexander, 74 Sol. Journ. 247.) We think it unnecessary to pass on this point of law because the evidence equally well establishes the fact of knowledge by the father. The parents were held under very similar circumstances [341] in the case of Gudziewski v. Stemplesky (263 Mass. 103). Plaintiff’s eye was put out with BB shot. The possession of the gun in the neighborhood was notorious but there was no direct evidence that the defendants had supplied the boy with the gun. The question was whether the defendants or either of them knew or ought to have known that the boy had the gun. The court held that the evidence warranted a finding that both the father and the mother had actual knowledge of the son’s possession of the gun and that he had been using it indiscriminately and mischievously. It is true that the court in that case held that the knowledge of the father might be inferred from the proximity of the father’s place of business to the street on which the boy had been seen shooting his gun at a shanty and at some birds. In the present case the father’s place of business was not in the vicinity but his admission that he was aware of everything that the son possessed in the nature of toys is sufficient from which to deduce knowledge on his part. In spite of his denials, there is persuasive evidence that the gun was in the possession of the boy in the very apartment as late as two months after the accident. Accordingly, it cannot be held as matter of law that there was no evidence on which the trier of the facts could charge the defendant with knowledge that his son Milton was in possession of and was using the air rifle. The point is made in the dissenting opinion of the court that the testimony of witnesses who saw Milton with “ a ” gun at various times was never connected so as to establish the fact that it was “ the ” same gun at' all times. This question was not raised by the defense at the trial of the case and is not justified by the record. Both parties tried the case on the tacit assumption that if the trial justice believed the testimony that Milton had “ a ” gun, it was equivalent to establishing the fact that Milton was in notorious possession of his gun for several months. The trier of the facts was justified in so finding. The judgment should be affirmed, with costs. Finch, P. J., and O’Malley, J., concur; Martin and Glennon, JJ., dissent, and vote for reversal and dismissal of the complaint as against defendant Morris Feuer.