Opinion
No. 5979
Decided October 28, 1958.
Appeal — Reply brief filed out of rule — Motion to strike overruled, when — Parents' liability for child's torts — Plaintiff injured by child's use of bow and arrow — Negligence of defendant parents — Burden of proof
1. Where the proceedings on an appeal on questions of law in a civil case in the Court of Appeals are not delayed due to the date on which the appellant's reply brief is filed (even though filed out of rule [Rule VII, A (2), Rules of the Courts of Appeals]) and no useful purpose would be served by striking such brief from the files, a motion by the appellee to strike such reply brief from the files will be overruled.
2. A parent is not liable for the tort of his child merely because of the parent-child relationship.
3. In an action by a four-year-old child to recover from the parents of a minor child for injuries suffered by plaintiff resulting from such minor child's use of a bow and arrow, it is incumbent upon plaintiff to show that such parents were negligent in permitting their child to be in possession of such bow and arrow, knowing of the incompetence and unskillfulness and dangerous propensities of their child because of a specific, known course of prior conduct in which such child had engaged and which would give them warning that such child would probably injure another with such bow and arrow.
ON MOTION to strike: Court of Appeals for Franklin County.
Messrs. Herbert, Tuttle, Applegate Britt, for appellant.
Mr. William J. Lohr, for appellees.
The matter up for consideration at this time arises on a motion of defendants, appellees herein, to strike the reply brief of appellant from the files for the reason that the reply brief was filed out of rule. In support of this motion counsel for appellees relies upon Rule V, B, of the Rules of The Courts of Appeals which provides as follows:
"Unless otherwise ordered by the court or a judge thereof, upon appeals on questions of law and fact, when all the testimony to be presented has been filed in the cause, the party having the burden of going forward shall within twenty (20) days thereafter file with the clerk his trial brief in triplicate. The opposite party shall within fifteen (15) days thereafter file his answer brief in triplicate, and the reply brief thereto in triplicate shall be filed within five (5) days thereafter."
Appellees say that appellant has not complied with the rule above set forth and ask this court to strike the reply brief from the files, stating that appellees' answer brief was filed August 11, 1958, and that appellant waited 29 days before filing her brief.
In opposition thereto counsel for plaintiff, appellant herein, say the initial brief of appellees was filed June 23, 1958, and the court extended the time for the appellees' brief to August 11, 1958, and that the appellees' brief was not filed until August 12, 1958, making it out of rule one day.
Appellant points to the fact that appellees had 49 days to prepare an answer brief and say that the reply brief in question was filed September 10, 1958. Appellant further contends that the rule in question makes the time limits applicable "unless otherwise ordered by the court," that appellees did obtain an extension to August 11, 1958, and that, therefore, the rule does not apply. It is further pointed out that new and novel questions are involved in the appeal, and that the matter is of great importance.
The notice of appeal in this case, filed on June 20, 1958, states that it is "her appeal to the Court of Appeals on questions of law." It should be observed that the wrong rule has been cited. Rule V of the Rules of the Courts of Appeals deals with appeals on questions of law and fact. It will be noted by reference to the text quoted above that Rule V, B, is applicable only "upon appeals on questions of law and fact."
In the interest of accuracy it should be pointed out that Rule VII, A (2), governs the time for filing briefs in appeals on questions of law in civil cases. Rule VII, A (2), relates both to (1) "Bill of Exceptions" and (2) "Assignments of Error and Briefs."
The bill of exceptions in this case was filed in this court on July 7, 1958. Rule VII, A (2), is clearly applicable in this case and provides as follows:
"Unless otherwise ordered by the court or a judge thereof, assignments of error and briefs shall be filed as follows:
"(a) Within twenty (20) days after the filing of the bill of exceptions with the clerk of the Court of Appeals, appellant shall file his assignments of error and brief. If a bill of exceptions is not required to portray the claimed errors, then appellant shall file with the clerk of the Court of Appeals his assginments of error and brief within fifty (50) days after the perfecting of the appeal as required by Section 2505.07, Revised Code.
"(b) Within fifteen (15) days after the filing of the appellant's brief, counsel for appellee shall file his brief and also at his election assignments of error on his behalf, and brief in reply thereto shall be filed within seven (7) days thereafter. The appellee's brief shall include such reasons and authorities in support of his assignments of error as he may desire, as well as an answer to appellant's brief. The appellant's reply brief may cover all matter in the appellee's brief."
The appellant in the usual appeal on questions of law has 20 days after the filing of the bill of exceptions in this court to file his brief and assignments of error. While the answer brief of appellees is due 15 days after the date of filing the appellant's brief, it is seven days after the appellee's brief is filed that the reply brief of appellant is due to be filed.
Without laboring the question further, the fact is that the proceeding has not been delayed due to the date on which the reply brief of the appellant was filed, and no purpose, useful or otherwise, would appear to be served by striking such brief from the file. Perhaps the only one penalized, if such action were taken, would be the court itself, in that the court would be deprived of the additional discussions and authorities cited in such reply brief.
The motion therefore should be, and hereby is, overruled.
Motion overruled.
PETREE, P. J., and MILLER, J., concur.
(Decided April 7, 1959.)
ON MERITS.
DUFFY, J. This is an appeal on questions of law from a judgment entered in the Franklin County Common Pleas Court, wherein the trial court directed the jury to render a verdict for the defendants, appellees herein.
Plaintiff, appellant herein, a minor four years of age, by her father and next friend, sued the defendants, the parents of a minor eight years of age, for injuries received by her on May 17, 1955, when a metal-tipped arrow, shot by the eight-year-old son of the defendants, struck her in the right eye, necessitating a later removal of the eye. At the conclusion of plaintiff's case in the trial court, the defendants moved for a directed verdict, which was sustained by the court.
The trial court construed the evidence presented most favorably to the plaintiff and came to the conclusion that there was no evidence presented showing negligence on the part of the defendant parents, as the evidence presented did not indicate that the child was incompetent or unskilled in the use of the bow and arrow, which the court held was not a dangerous instrumentality as a matter of law. In that finding the court felt compelled to follow White v. Page, 61 Ohio Law Abs., 498, 105 N.E.2d 652, decided by the Court of Appeals for Franklin County, Ohio, in 1950. The trial court did not feel that there was any evidence indicating a course of conduct on the part of defendants' son which would give them warning that such an unfortunate incident as this would probably occur, although the court did recognize that when dealing with children anything is possible, but that, since the law deals only with probabilities, there were not sufficient grounds to present a case to the jury.
The plaintiff felt that there was evidence presented which the trial court should have submitted to the jury for decision, as plaintiff's parents testified that they had previously sent the defendants' son home when he brought the bow and arrow to their yard; and the defendant, Mr. Peterson, testified that he had taken the bow and arrow away from the boy and had told the boy to leave the bow and arrow alone; but, in spite of this prohibition, the mother gave the boy permission to use the bow and arrow without supervising his activities. The father's prohibition of the use of the bow and arrow was the result of disobedience in its continued use by the defendants' son, and plaintiff feels that a reasonably prudent parent would have foreseen that the use of the bow and arrow in the neighborhood would result in serious injury to some other person and particularly to a child in the neighborhood. Plaintiff admits in her brief and argument that the bow and arrow was not a dangerous instrumentality in itself, but, when placed in the hands of an incompetent and unskilled eight-year-old lad who is allowed to roam a neighborhood in which there are small children, such a weapon becomes an extremely dangerous instrumentality.
Since the parent is not liable for the tort of a child merely because of this relationship and there was no evidence of agency in this case, it was incumbent upon the plaintiff to show by some evidence that the parents were negligent in permitting the child to be in possession of the bow and arrow, knowing of the incompetence and unskillfulness and dangerous propensities of their son because of a specific, known course of prior conduct in which the son had engaged and which would give them warning that the son would probably injure another with the use of the bow and arrow.
It is true that there is evidence that the parents of the little girl had previously sent home the son of the defendants when he appeared in their yard with the bow and arrow, and there is evidence that they reported such action on their part to the defendants. They did not see the boy shoot the arrow. There is also evidence that the father, who had instructed the boy in its use, told the boy to leave the bow and arrow alone, but this prohibition seems to have been made because of a disobedience in the continued use of the bow and arrow in the basement of the home after having been told to put it away rather than because of any negligent or dangerous use of the bow and arrow by the boy.
The evidence further showed that the defendant mother had given the boy permission, on the morning of the day of the accident, to use the bow and arrow in a field near the home but did not know that the boy was using the bow and arrow after lunch when the incident in question occurred.
Sad situations such as this should not tempt the court to legislate; the rules respecting the nonliability of the parent for the tort of the child have been well established in the law.
We feel that the trial court properly resolved all doubts in favor of the plaintiff and properly concluded that there was no evidence of negligence on the part of the defendant parents. This court finds no error in the record prejudicial to the rights of the plaintiffs, and the judgment is, therefore, affirmed.
Judgment affirmed.
BRYANT, P. J., and MILLER, J., concur.