Opinion
January 7, 1954 —
February 2, 1954.
APPEAL from a judgment of the circuit court for Milwaukee county: FRANCIS X. SWIETLIK, Circuit Judge. Affirmed.
For the appellant there was a brief by Gold McCann, and oral argument by Roland J. Steinle, Jr., all of Milwaukee.
For the respondent the cause was submitted on the brief of Lines, Spooner Quarles, attorneys, and Charles B. Quarles of counsel, all of Milwaukee.
Action brought in the civil court of Milwaukee county by plaintiff Cyril Pawlak against defendant Anton J. Mayer for damages arising out of the injury sustained by plaintiff's son Ronald when he was hit in the eye by a pellet from an air rifle allegedly fired by defendant's son Anthony. At the conclusion of the testimony both parties moved for a directed verdict and the court entered judgment dismissing the complaint. Upon appeal to the circuit court the judgment was affirmed. From the judgment of the circuit court dismissing the complaint, plaintiff appeals.
On the afternoon of November 18, 1950, Ronald Pawlak, aged fourteen years, and his brother Gary Pawlak, aged thirteen years, were playing with Anthony Mayer, aged fourteen years, on the property of the defendant, father of the Mayer boy, at 3528 So. 27th street in the city of Milwaukee. The property was occupied by Mayer as his home and by several buildings which comprised a motel. About 4 p. m. Mayer, who was working about the premises, saw the boys and a newsboy playing with an air rifle. He was about 60 feet away and the newsboy had the gun in his hands. Mayer warned them against shooting at his buildings. The newsboy then left.
Shortly thereafter Mayer left the premises and the boys began playing a game of "Cowboy and Indians." Ronald hid behind a piece of tin that had been used as a siding on one of the buildings; the other two boys entered one of the unfinished motel units about 20 feet away from him, and shot at the piece of tin. After a few minutes Ronald told them to "stop," put his head out, and was hit by a pellet from the air rifle, sustaining the injury for which damages are sought.
The evidence shows that Anthony, with the defendant's consent, had purchased an air rifle in March or April of 1950. At that time the Mayer property was outside the city limits of Milwaukee and the city ordinance prohibiting the use of air rifles had no effect there.
Shortly after the purchase of the gun, complaint was made to defendant that it had been used to shoot at lanterns and other lights on Morgan avenue. A bartender gave the gun to the father and told him it had been taken away from the boys when they were using it on that occasion. Mayer cautioned his son against using the gun and hid it in the attic. Up until the time of the accident Mayer did not see Anthony use the gun and had no reason to believe it had been taken from the home. When he saw it in the hands of the newsboy on the day of the accident he did not recognize it as his son's and was certain it was not, because it "was in the house, or supposed to be in the house." He was not present at the time of the injury.
The trial court held that Mayer did not know the air rifle he saw in the newsboy's hands belonged to his son and that he could not have reasonably anticipated his son would use it so as to cause the injury sustained by the Pawlak boy. On review, the circuit court was satisfied there was sufficient evidence to sustain the findings and conclusions of the lower court.
Appellant relies upon Hopkins v. Droppers (1924), 184 Wis. 400, 411, 198 N.W. 738, where it was said:
"These [last cited] cases do not stand on any theory that motor machines are dangerous instrumentalities, or of agency, but are based on the ground that if a father knows that his minor child, under his control, is committing a tort or violating a statute, and makes no effort to restrain him, he will be regarded as authorizing or consenting to the act and held civilly liable for the consequences if that act is the proximate cause of injury to others."
And on Hoverson v, Noker (1884), 60 Wis. 511, 513, 19 N.W. 382:
"It will be seen by an examination of the record that it became important for the plaintiffs to connect the father with the acts of his young sons, which the plaintiffs allege caused the injury complained of, and for this purpose the plaintiff s offered evidence tending to prove that the sons had frequently, before the day upon which the accident happened, called abusive names, shouted, and frequently discharged firearms when persons were passing the house of the defendants, and that this was often done in the presence of their father. All evidence of this kind was excluded. This, we are inclined to hold, was error."
It will be noted that in the latter case this court reversed the trial court because certain evidence was excluded that should have been presented to the jury. We have no disagreement with the decisions in these cases. The only question before us is whether the facts in the instant case are such as to make the father liable under the rule of the cases. As stated by the circuit court:
"The facts in this case differ from those in the Hopkins Case. In the case at bar, the father:
"(a) Forbade the son to use the air gun except in the house.
"(b) Hid the air gun in the attic.
"(c) Did not know that the air gun used when the accident occurred belonged to his son.
"(d) Had no reason to assume that his son would violate his instructions and use the air gun without his permission.
"The facts in [the Hoverson Case] differ materially from the facts in the case at bar. There is no evidence in our case that the father, with full knowledge of any alleged irresponsible conduct on the part of his son, permitted him to indulge in such conduct. The evidence discloses that young Mayer had possession of the air gun on the day of the accident despite the strict orders of his father not to use the air rifle outside of his home, and that he took it from the attic where the father had hidden it."
See Seibert v. Morris (1948), 252 Wis. 460, 32 N.W.2d 239.
In our opinion the trial court's findings are amply supported by the evidence, and the judgment of the circuit court must be affirmed.
By the Court. — Judgment affirmed.
STEINLE, J., took no part.