Palm v. Ivorson

Mr. Presiding Justice Baker delivered the opinion of the court. ^A father is not liable for the tort of his infant child upon the ground alone that he is the father/] A person who negligently places in the hands of, or authorizes the use by another person of a dangerous instrument or article under such circumstances that he has reason to know that it is likely to produce injury, is liable for the natural and probable consequences of his act to any person injured, who is not himself in fault. The liability of the appellant for the injuries to appellee depends upon whether it can be held, under the evidence, that the shooting of appellee might or should have been reasonably anticipated as a consequence of appellant permitting his son to go hunting with a shot-gun on the day of the accident. It cannot be held that danger- to himself or others should in all cases be anticipated from entrusting a gun to a boy twelve years old. If a boy of that age or even an older person is wholly unacquainted with fire-arms and knows nothing of their use, danger from permitting such person to carry a loaded gun might, perhaps, be reasonably anticipated. But such danger cannot be reasonably anticipated from permitting a boy twelve years old to have and use a gun when he is experienced in the use of guns, is acquainted with their construction and the proper mode of carrying, handling and discharging them and has been careful in their use. Carter v. Towne, 98 Mass. 567; Binford v. Johnston, 82 Ind. 426; Chaddock v. Plummer, 88 Mich. 225; Harris v. Cameron, 81 Wis. 239; Hagerty v. Powers, 66 Cal. 368; Poland v. Earhart, 70 Iowa, 285; Dixon v. Bell, 1 Starkie’s Rep. 287; Lynch v. Nupdin, 4 Perry & Davidson, 672. Marionneaux v. Brugier, 35 La. An. 13, cited by appellee, is based upon the civil law under which fathers and others are responsible for the acts of children under their care. In this case appellee at the trial proved the age of appellant’s son but gave no evidence as to his experience or want of experience in the use of a gun. The other evidence in the case clearly shows that appellant’s son at the time of the accident was accustomed to the use of guns, familiar with their construction and mechanism, with the manner in which they were loaded and discharged, had been thoroughly instructed by appellant as to the use of guns and the proper manner of handling them and was careful and skilful in their use. He had had much experience in shooting a rifle, was an expert marksman and had made 220 out of a possible 250 when the highest record of the year upon the range was 234. For more than two years before the accident he had been in the habit of hunting with a shot-gun about once a week; had shot wild ducks, squirrels, rabbits, rats and other animals. He had the gun with which appellee was shot six months before the accident, had another shot-gun before that, and had had other guns. His father had several guns and for two years before the accident the boy had been in the habit of taking his own and his father’s guns apart, cleaning them, putting them together and loading shells for them. Upon the facts disclosed by this record it cannot in our opinion he held that appellant should or might have reasonably anticipated' danger either to his son or to others from permitting him at the time of the accident to carry and use a gun. It follows from what has been said that the court should have instructed the jury to find the defendant not guilty and the judgment of the Circuit Court will be reversed with a finding of fact. Reversed.