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KUHNS v. BRUGGER (10/07/57)

THE SUPREME COURT OF PENNSYLVANIA


October 7, 1957

KUHNS
v.
BRUGGER, APPELLANT.

Appeals, Nos. 33, 34, 35, and 36, March T., 1957, from judgments of Court of Common Pleas of Erie County, May T., 1954, No. 205, in case of Albert G. Kuhns, a minor, by his guardian, A. Leroy Hetz, and Francis M. Kuhns, in his own right, and Emma Cecile Kuhns, v. George A. Brugger et al. Judgments affirmed; reargument refused November 12, 1957.

COUNSEL

William F. Illig, with him A. Grant Walker and Gifford, Graham, MacDonald & Illig, for appellant.

John G. Gent, with him Curtze & Gent, for appellant.

Charles E. Kenworthey, with him Frank B. Quinn, James H. Hardie, Quinn, Leemhuis, Plate & Dwyer, and Reed, Smith, Shaw & McClay, for appellees.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 390 Pa. Page 334]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

On July 23, 1953 a tragic and unfortunate event occurred which has resulted in this litigation. Albert G. Kuhns, 12 years old, was wounded by a bullet from a pistol discharged by his cousin, George A. Brugger, also 12 years old, while in the cottage of their common grandfather, George W. Bach, located at Manchester Beach, Erie County, and, as a result thereof, Kuhns sustained serious physical injuries.

Through a guardian, Kuhns instituted a trespass action, joined in by his parents, against George Brugger; later, by permission of court, the executor of the George W. Bach Estate was joined as an additional party defendant.*fn1 A motion for severance of the actions having been refused, the suit against both defendants

[ 390 Pa. Page 335]

    proceeded to trial. The jury returned a verdict against both defendants in the amount of $182,096; the Court below later reduced this amount to $116,604.60 and this reduction was accepted by plaintiffs. From a judgment entered on the verdict these appeals were perfected.

Both defendants have appealed, requesting judgments n.o.v., or, in the alternative, new trials. In considering these appeals the scope of appellate scrutiny of the evidence varies. Upon an appeal from the refusal to grant a motion for judgment n.o.v. the testimony must be read in the light most favorable to the verdict winner, all conflicts therein must be resolved in his favor, and he must be given the benefit of all facts and inferences from facts reasonably deducible from the evidence: Wolansky v. Lawson, 389 Pa. 477, 481, 133 A.2d 843; Wilbert v. Pittsburgh Consolidated coal co., 385 Pa. 149, 154, 122 A.2d 406; Lessy v. Great Atlantic & Pacific Tea Company, 121 Pa. Superior Ct. 440, 444, 183 A. 657. However, this rule does not apply upon appeal from the refusal of a new trial.*fn2 In determining the propriety of the refusal of a new trial the present Chief Justice JONES stated in Wilbert v. Pittsburgh Consolidated Coal Co., supra (pp. 156, 157): "Practically all of the evidence was introduced by way of oral testimony the credibility whereof was necessarily for the jury whose verdict will

[ 390 Pa. Page 336]

    not be set aside as being against the evidence unless it appears to be arbitrary and capricious. A determination in such regard is, in the first instance, within the province of the trial court whose decision will not be disturbed unless there is clear error of law or palpable abuse of discretion." In determining the validity of a refusal to enter judgment n.o.v. we examine the evidence to determine whether or not sufficient proof was adduced at the trial to justify the submission to the jury of each factual question: Ashcraft v. C. G. Hussey and Co., 359 Pa. 129, 134, 58 A.2d 170. With these principles in mind the following factual narrative emerges.

Bach, an elderly man, owned and occupied - at least, part of each year - a one story cottage at Manchester Beach on the shore of Lake Erie. This cottage was located in a somewhat isolated area in the immediate vicinity of which were several commercial fisheries. A hunting devotee, Bach owned various guns and other firearms including the Colt Woodsman .22 calibre automatic pistol which constitutes the focal point of this incident. When this pistol was not in use Bach kept it in a loaded condition in an unlocked dresser drawer in his unlocked bedroom.

At approximately noon on July 23, 1953, Bach's two young grandsons, Kuhns and Brugger, went fishing; upon their return at approximately 3:30 P.M. and during Bach's absence, the boys entered their grandfather's bedroom. Katrina Brugger - Brugger's 2 year old sister - was then playing in the bedroom. In a spirit of play Brugger picked up a so-called "under and over" gun - a combination shotgun and rifle - and pointed it at Kuhns. As he did this, miss Fries, a great aunt of the boys, entered the bedroom and ordered Brugger to pur away the gun which he did. A few minutes later Brugger went to his grandfather's

[ 390 Pa. Page 337]

    dresser and found in the top left drawer thereof the Colt automatic pistol,*fn3 previously mentioned, which was then loaded with a clip of cartridges resting in its handle. In order to prepare this pistol for firing one draws back an upper slide forcing a cartridge into the firing chamber and the cartridge is then exploded by pulling the trigger. There was some testimony that this pistol at the time was mechanically defective and that, on occasion, if one held his finger on the trigger as he pulled back the slide, the pistol would discharge, without the added requirement of squeezing the trigger - a one-step, rather than a two-step procedure.

According to Brugger*fn4 the shooting occurred in the following manner: "And I took it [the pistol] out, took it out of the holster, took it in my hand. I believe I had my finger on the trigger. And I pulled the slide back, and then the shot occurred." The bullet, thus ejected, penetrated Kuhns' body and perforated the spinal cord, paralyzing the entire lower portion of his body and destroying all voluntary control of his organs in that part of his body. His condition, as portrayed at trial, is such that he can no longer walk, requires constant care and medication and can never be gainfully employed.

The defendant Brugger takes the dual position that the evidence was insufficient as a matter of law to establish any negligence on his part and that the Court below, in submitting the question of his negligence to

[ 390 Pa. Page 338]

    the jury, not only held him, a minor, to the standard of conduct required of an adult, but, in effect, charged the jury that he was guilty of negligence per se in that he had violated a criminal statute. We shall first concern ourselves with Brugger's appeals.

Brugger's contention that he is entitled to judgment n.o.v. because of the lack of sufficient evidence of negligence on his part is clearly untenable. This Court, in Fredericks v. Atlantic Refining Co., 282 Pa. 8, 13, 127 A. 615, set forth the required rule of conduct when dealing with any dangerous agency: "A higher degree of care is required in dealing with a dangerous agency than in the ordinary affairs of life or business, ... every reasonable precaution suggested by experience and the known danger ought to be taken ..." See also Maternia v. Pa. R.R. Co., 358 Pa. 149, 56 A.2d 233; Summit Hotel Company v. National Broadcasting Company, 336 Pa. 182, 8 A.2d 302; Konchar et al. v. Cebular, 333 Pa. 499, 3 A.2d 913. Any loaded firearm, including a pistol, is a highly dangerous instrumentality and, since its possession or use is attended by extraordinary danger, any person having it in possession or using it is bound to exercise extraordinary care. A person handling or carrying a loaded firearm in the immediate vicinity of others is liable for its discharge, even though the discharge is accidental and unintentional, provided it is not unavoidable: Lindh v. Protective Motor Service Co., Inc., 310 Pa. 1, 4, 164 A. 605; Winans v. Randolph, 169 Pa. 606, 32 A. 622; Knasiak v. Rambo, 57 Pa. Superior Ct. 8; Gaussman v. Philadelphia & Reading Railway Co., 55 Pa. Superior Ct. 542.*fn5 When a person picks up a firearm,

[ 390 Pa. Page 339]

    points it at another*fn6 and operates the firing mechanism, with or without the knowledge that the firearm is loaded, and the firearm is discharged, and the evidence so indicates, then a prima facie case of negligence is established.

Brugger submits, however, that, because of his age, he was presumptively incapable of negligent conduct and therefore his conduct did not render him liable for the injury which followed the discharge of the firearm. In short, Brugger relies upon his age to absolve him of any culpability for his actions and the manner in which the Court below instructed the jury to secure a new trial.

Even though the standard of care applicable to a minor differs from that applicable to an adult,*fn7 nevertheless

[ 390 Pa. Page 340]

    a minor may be guilty of actionable negligence. Both an adult and a minor are under an obligation to exercise reasonable care; however, the "reasonable care" required of a minor is measured by a different yardstick - it is that measure of care which other minors of like age, experience, capacity and development would ordinarily exercise under similar circumstances. In applying that yardstick, we place minors in three categories based on their ages:*fn8 minors under the age of seven years are conclusively presumed incapable of negligence;*fn9 minors over the age of fourteen years are presumptively capable of negligence, the burden being placed on such minors to prove their incapacity;*fn10 minors between the ages of seven and fourteen years are presumed incapable of negligence, but such presumption is rebuttable and grows weaker with each year until the fourteenth year is reached.*fn11 As the late Mr.

[ 390 Pa. Page 341]

Justice ALLEN STEARNE said in Koenig v. Flaherty, 383 Pa., supra (page 190): "The standard by which actions of children are to be measured is the child's capacity to appreciate the danger involved: Philadelphia, Baltimore and Wilmington R.R. Co. v. Layer, 112 Pa. 414, 419, 3 A. 874. This capacity is usually determined by the understanding expected from children of like age, intelligence and experience: [Citing cases]."

Brugger at the age of 12 years was not to be judged by adult standards; on the contrary, it was necessary to inquire whether his conduct was such as should reasonably have been expected of a child of like age, intelligence and experience. Brugger's culpability or exculpability of actionable negligence depended upon a measurement of his conduct based on variable factors - his capacity and understanding based upon his age, intelligence, experience, etc.: a measurement properly to be made by a jury with the opportunity to evaluate his individual capacity to perceive danger. Concerning the capability of negligent conduct of a child between the ages of seven and fourteen it has been said: "Generally their conduct has been determined by a jury. This has been because the ascertainment of the capacity to perceive danger involves the determination of judgment factors, i.e., knowledge, intelligence, experience, character of the danger, which are often associated with questions of fact and hardly ever beyond reasonable doubt ...": 51 Dickinson L. Rev. 79, 84, 85. Whether Brugger at his age and under

[ 390 Pa. Page 342]

    the circumstances had the capacity to understand, comprehend and perceive the danger and risk inherent in handling this pistol was most suitably a question for determination by a jury.

We have carefully examined the trial judge's instructions to the jury on the law applicable to the determination of Brugger's negligence and find such instructions free from error. The trial judge was singularly cautious in explaining to the jury the requisite standard of conduct of a 12 year old boy, the presumption in his favor and the yardstick to be applied in measuring his conduct. Appellant's complaint concerning that portion of the instructions which referred to the possibility that Brugger might have violated a criminal statute in pointing the pistol at Kuhns is without merit. Whoever wantonly or playfully points a pistol at another offends against our criminal code (Act of June 24, 1939, P.L. 872, § 716, 18 PS § 4716) and the violation of a statute may be regarded as negligence per se (Jinks et al. v. Currie et al., 324 Pa. 532, 188 A. 356) even though the violator be a minor (D'Ambrosio et al. v. Phila., 354 Pa. 403, 47 A.2d 256). The trial judge, referring to the statute, said: "Now, I can't instruct you, as a matter of law, that that [the statute] applies in this case and therefore makes George Brugger negligent per se, or because of that statute, because the question as to pointing is in dispute. George Brugger says he doesn't think he pointed it. The plaintiff said he did point it. Actually, the gun was pointed but it is a question of intention. If George Brugger was mature enough to know better, and therefore negligent, then you may use that statute as evidence of negligence per se, and hold him for it. If he did not point it intentionally, then your determination of his guilt will be based upon carelessness, as we have described it for you, if it existed...."

[ 390 Pa. Page 343]

(Emphasis supplied). As the close of the charge the trial judge reiterated the standard of conduct required of a minor. We fail to find any error of commission or omission at the trial which in any manner prejudiced or harmed the defendant Brugger. The verdict of the jury against Brugger was fully warranted by the evidence and a new trial was properly refused.

In considering the defendant Bach Estate's motion for judgment n.o.v. we must entirely eliminate certain portions of the testimony. Under the Act of 1887, supra - applicable to trespass actions, including actions to recover damages for personal injuries - a surviving or remaining party or any other person whose interest is adverse to one who is dead cannot testify as to matters which took place before the death if the deceased had some rights in the subject matter which have passed to a party on the record who represents his interest. Under this statutory provision the testimony of both Kuhns and Brugger must be eliminated from our consideration as it was in the Court below.

Eliminating such testimony the record reveals that the pistol was owned by Bach, that it was kept in an unlocked dresser drawer in his unlocked bedroom with a clip of cartridges in its handle, that young Brugger not only was aware of the existence of the pistol - having been shown it on several occasions by Bach - but also its place of containment in the bedroom, that the unlocked bedroom was open to members of the family, including young grandchildren, that Brugger and Kuhns were accustomed to enter the bedroom, that Kuhns was injured in the bedroom by a shot from a firearm and the pistol was on the top of the dresser immediately after the shooting, that Mrs. Bach related a conversation with Kuhns after the shooting in which he expressed no hard feelings toward Brugger in connection with his injury - this evidence, with

[ 390 Pa. Page 344]

    other testimony, was sufficient to establish prima facie negligence upon Bach's part.

The possession of this loaded Colt pistol did not constitute Bach an insurer against liability for injuries arising from its use nor render him liable without fault; it did, however, impose upon him a very serious and grave responsibility. Its possession placed upon him the duty of exercising not simply ordinary, but extraordinary care so that no harm might be visited upon others. We are not called upon to determine whether the possession of other instrumentalities or objects, such as knives, medicines, poisonous substances, etc., would impose the same degree of care under similar circumstances; we are simply to determine the degree of care imposed upon the possessor of a loaded pistol, a weapon possessing lethal qualities, under the circumstances. In this connection the language of Mr. Justice GIBSON in Sullivan v. Creed, 2 (Ir.) K.B.D. 317, 2 BRC 139, is appropriate: "A hatchet, a bottle of poison labeled 'poison', the same bottle unlabeled, a loaded gun, gunpowder, or dynamite, all represent articles of varying degrees of danger, and the greater the danger the higher is the standard of the diligence which the law exacts."

The duty imposed upon Bach encompassed all those persons who might suffer harm or injury from the pistol's discharge and included the pistol's use not only by Bach but its use by a third person if Bach knew or had reason to know that such person was likely to use the pistol in such a manner as to create "an unreasonable risk of harm to others."*fn12

Over many years Bach's grandchildren were visitors and guests at the cottage. Not only were the general living quarters of the cottage unrestricted to them but

[ 390 Pa. Page 345]

    so also was his bedroom; in this respect the presence of little Katrina Brugger in the bedroom immediately before the shooting incident is highly significant. The grandchildren had the "run of the house" and Bach's bedroom was not "out of bounds".

In that bedroom were kept not only fishing equipment but, at least, two firearms - all attractive to interested boys. Not only was Brugger aware of the fact that his grandfather possessed this pistol but he knew that it was kept in the bedroom; of these facts the grandfather was cognizant. Despite knowledge that the grandchildren frequented the unlocked bedroom Bach not only kept the pistol in an unlocked drawer but also in a loaded condition, i.e. the clip of cartridges was in the pistol handle.

It is contrary to every human experience to expect that children, particularly boys, would not want to touch and handle a pistol. There is something magnetic about highly engined firearms with their harmonious lines and graceful proportions which attracts both young and old, whether the ordnance be a beautiful revolver, an old-fashioned fowling piece or a piece of artillery. Bach knew or should have known that any 12 year old boy, such as either of his two grandsons, might rummage around his bedroom and, finding the pistol, handle it. Applying either the "foresight" or the "hindsight" test, it is evident that Bach could have anticipated and foreseen the likelihood of harm resulting from leaving the loaded pistol in an unlocked drawer in a bedroom frequented by children.*fn13

When Brugger came upon this pistol his first impulse - common to all boys - was to see if he could operate it. He, of course, entertained no desire to bring

[ 390 Pa. Page 346]

    harm to his playmate cousin, but was simply overwhelmed by an impulse the existence of which is known to adults and against which Bach should have taken precautions.

Under the circumstances Bach was under a duty to keep this pistol away from his young grandchildren. Counsel for the Bach Estate argue that the decedent had a perfect right to keep this pistol in his home if only to protect himself against nocturnal prowlers. It is argued: "Where else should George Bach, in the exercise of reasonable prudence, have kept a gun for protection against unexpected midnight intrusion except in the dresser drawer of his private bedroom, where it would be readily available in case of need?" No one can question the right or the prudence of Bach being armed against possible midnight prowlers and intruders. However, this shooting did not take place at nighttime, but in the afternoon in a room where the presence of young grandchildren might be anticipated. As common prudence, in behalf of self-protection, justified the possession of the pistol for immediate use at night, equal prudence, in behalf of protecting children, dictated that the pistol be kept under lock and key in the daytime, especially in the grandfather's absence.

We are not confronted with the question of grandparent's liability for the tortious conduct of a minor grandchild; on the contrary, we are determining whether the grandparent by his own conduct was guilty of negligence, and whether, if negligent, his negligence was the proximate cause of Kuhns' injury. Bach's liability depends on the nature of the instrumentality involved, the place, the time and the persons likely to be brought in contact with the instrumentality. The gist of the liability sought to be imposed is that Bach was negligent in permitting a highly dangerous instrumentality to be in a place

[ 390 Pa. Page 347]

    where the incautious hands of a child might come in contact with it and the handling and discharge of this instrumentality by the child was the natural and probable consequence of Bach's negligence and such a consequence as might and ought to have been foreseen by Bach as likely to flow from his act.*fn14 Bach's act in permitting this weapon, with its deadly potentialities, to remain in a place frequented by young children constituted negligence on his part; the intervention of his young grandchild did not break the chain of causation between his negligence and the injury which occurred and was a natural and probable result to be anticipated from the original negligence.

The Restatement of the Law of Torts, supra, § 308, declares: "It is negligent to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to

[ 390 Pa. Page 348]

    others." Particularly significant is Comment b thereunder: "The rule stated in this Section has its most frequent application where the third person is a member of a class which is notoriously likely to misuse the thing which the actor permits him to use. Thus, it is negligent to place loaded firearms or poisons within reach of young children or feeble-minded adults." (Emphasis supplied). Appellant (Bach Estate) seeks to distinguish the Restatement rule on the ground that Bach did not "permit" the boy Brugger to use the pistol in that he did not expressly allow him to do so; such a distinction is unrealistic and would render meaningless Comment b. The further argument that, because of the juxtaposition of the words "young children" and "feeble-minded adults", Comment b is restricted to young children legally incapable of negligence does violence to the language of the Comment. Both the Restatement rule and the comment are apposite to the present situation.

The affixation of liability under circumstances similar to the instant situation is neither novel nor without precedent in other jurisdictions.*fn15

[ 390 Pa. Page 349]

A most interesting case is Sullivan v. Creed, supra. The facts were as follows: Sullivan and Creed, the latter

[ 390 Pa. Page 350]

    a 16 year old boy, were returning from mass along a public road; Creed left Sullivan at a gap leading to Creed's home; Creed's father that morning had been shooting rabbits and had left his loaded gun along the path leading from the public road to his home while he went to his home to read the papers; young Creed, enroute home, found the gun, called to Sullivan and, while pointing the gun in the direction of Sullivan, the gun went off and injured Sullivan. The language of Palles, C.B., is particularly apposite: "Lastly, I cannot think that it was beyond the province of a jury to hold that he [the father] might have foreseen that the taking of the gun by the boy would not have been an improbable result of his seeing it, in a place where there was not a parent or a person in authority to prevent him. I am, therefore, of opinion that a jury might well have found that the defendant ought, under the circumstances, to have foreseen that the boy might take possession of the gun. But even this is not necessary, for, in my opinion, the liability of the defendant would be the same if he ought to have foreseen that any boy, as distinguished from this particular boy, might have seen and handled the gun; and having regard to the place in which it was placed, I think it would have been wholly impossible to have withdrawn from the jury the question whether he ought to have so foreseen. This alone, however, would not be enough. Ought he then

[ 390 Pa. Page 351]

    to have foreseen that the boy might - I do not say would, but that he might - use the gun negligently? This appears to me to be the ultimate and crucial question in the case. ... However, no one individual can determine what would be done by this hypothetical creature [a reasonable man] under any given state of circumstances otherwise than by his own experience, and, as the experience of one man usually differs from that of another,*fn16 our law wisely says that what is 'reasonable' is to be determined by the jury - that is, it is to be the resultant of the, to a certain extent, varying opinions of twelve different persons ...."

The precise question herein presented is one of first impression in this Court, although somewhat similar situations have been presented in the Superior Court. In Swanson v. Crandall et al., 2 Pa. Superior Ct. 85, the defendant father kept a loaded revolver in the upper drawer of a chiffonier located in a bedroom occupied by his wife and small child; the defendant's 5 year old daughter discovered and discharged the revolver wounding a nursemaid. The Superior Court held that the facts did not constitute a basis for recovery by the nursemaid. The Swanson decision might be distinguished upon the ground that there was no evidence that the child obtained the revolver from the drawer - the place where the defendant kept it - on the day of the accident; however, the language of this decision indicates that the father's act in keeping a loaded revolver in a place where its discovery and discharge by the child could be reasonably anticipated was not negligent

[ 390 Pa. Page 352]

    and to that extent the decision in the Swanson case must be rejected. In Archibald v. Jewell, 70 Pa. Superior Ct. 247, a father allowed his son to use a device loaded with BB shot and the boy discharged the device and wounded another child; the Court considered the question of the father's negligence in knowingly permitting his son to possess and use such a device to be a question of fact for a jury to determine.

Mendola et al. v. Sambol, 166 Pa. Superior Ct. 351, 71 A.2d 827, is very apposite. In that case the defendant-father kept a .22 calibre repeating rifle in his home; on the evening in question the father and a 11 year old son were going hunting for rats; while the father performed some chores he placed the gun unattended behind the living room door; the son found the gun, took it to the car in readiness for the hunting trip and then proceeded to demonstrate the operation of the gun to a 7 year old child and the gun was discharged injuring the child. In upholding a verdict for plaintiffs, the Superior Court found that the defendant was negligent and such negligence was the natural and probable cause of the accident "since it was the natural and probable consequence of his negligent act in making the loaded gun accessible to his son." It is particularly significant that the Court recognized that there "are few things as attractive to a young boy as a gun" and that, both before and since the Restatement of the Law of Torts, it was the accepted rule that a father's conduct in permitting his child to have access to a dangerous instrumentality and the child's use of it to the injury of another may be negligence depending on the circumstances. In Fleming et al. v. Kravitz, 260 Pa. 428, 103 A. 831, a 6 year old boy was playing with a toy air gun in the barrel of which was the stem of an ordinary match; the boy discharged the gun with the result that the match struck the eye of another boy

[ 390 Pa. Page 353]

    causing an injury. This Court, upholding a non-suit, said that the alleged negligence - in permitting the boy, immature and inexperienced, to be in possession of the gun, after warning from several persons who knew no more than he did that danger of an accident attended such indulgence on his part - did not involve the father in the accident.

Under the circumstances herein presented the question of Bach's liability was clearly for the jury to determine. The jury having found that he was negligent, and the evidence being sufficient to sustain such finding, judgment n.o.v. was properly refused.

The Bach Estate argued that the trial judge erred in refusing to sever the two actions for trial, especially in view of the Act of 1887, supra, which rendered inadmissible the testimony of Kuhns and Brugger as against the Bach Estate. When Kuhns' and Brugger's testimony were offered the Court very clearly instructed the jury that they were not to consider such testimony in determining the liability of the Bach Estate. In the trial judge's charge this question was again discussed and the jury was warned that Kuhns' and Brugger's testimony were not to be considered; the trial judge then said: "It will be necessary for you to determine the liability as to him [Bach], from testimony given otherwise than by Albert G. Kuhns and George A. Brugger as to events during the lifetime of George W. Bach." The instruction in this respect could not have been more clear. The liability of the Bach Estate was not dependent on the testimony of Kuhns and Brugger: as the Court below said in its Opinion: "Eliminating the testimony of Kuhns and Brugger under the direction of the court, the jury had more than sufficient facts and inferences from which to determine Bach's responsibility and liability. In addition to the facts previously herein recited Dr. Ray H. Luke

[ 390 Pa. Page 354]

    testified that about fifteen minutes after the accident he made an examination of the plaintiff, who he found at the foot of the dresser with a bullet in his chest and blood on the floor near him. The defendant Bach's gun was at the time on top of the dresser with bullets in it. After the accident Bach admitted to the policeman that he always kept this pistol in the dresser in a holster with loaded bullets in a clip inserted in the handle of the pistol but without a bullet in the chamber."

The Bach Estate, moreover, did not present this question in the statement of questions involved. In line with our well established rule this argument which related to a question not presented in the statement of questions involved should not be considered on this appeal: Rule 35, Rules of the Supreme Court of Pennsylvania: Kerr v. O'Donovan, 389 Pa. 614, 630, 134 A.2d 213; Blue Anchor Overall Co. v. Pa. L. Mut. Ins., 385 Pa. 394, 402, 123 A.2d 413; Burke Appeal, 378 Pa. 616, 108 A.2d 58.

In behalf of their motions for a new trial, both defendants allege trial errors, all of which we have considered. We see no merit in the contention that the Bach Estate was prejudiced in the eyes of the jury because, in his opening statement to the jury, counsel for the plaintiff said that Bach was the president of the American Sterilizer Company. The judge instructed the jury that Bach's position had nothing to do with the issue. Nor was the Bach Estate prejudiced to its harm because the jury panel was asked whether any of them were stockholders or employees of the American Sterilizer Company.

The appellants find fault with various remarks made by plaintiffs' counsel in his summation to the jury. We see nothing in those utterances which go beyond what is generally heard in zealous partisan arguments to juries.

[ 390 Pa. Page 355]

The difference between allegata and probata alleged by the appellants finds no basis in fact.

It is contended further that the Court's charge was inadequate and misleading both as to negligence and contributory negligence features. Counsel in their briefs quote various portions of the Court's charge and consider them as isolated from the remaining parts of the charge. Without conceding that any particular statement made by the judge was improper or incorrect, we are convinced that taking the Court's charge as a whole it properly propounded the law applicable to the particular circumstances under discussion.

The appellants submit also that the trial judge erred in sending out a memorandum with the jury on possible verdicts. The evidence introduced on expenses incurred and to be incurred was voluminous and intricate. The memorandum was given for the purpose of guiding the jury, and was in no sense a direction as to what they should do. We find no fault with the lower Court's explanation, as given in his opinion: "The first item on the memorandum suggested the verdict for the defendants in case there was no right of recovery because neither defendant was guilty of negligence or the plaintiff was guilty of contributory negligence. The breakdown of the various possible verdicts if a recovery was to be allowed was in the court's opinion necessary, and it was proper. An examination of that memorandum will indicate the difficulty the jury would have had in correctly considering and allocating the many items involved under the testimony."*fn17

[ 390 Pa. Page 356]

Finally, it is argued that the verdict was excessive. The jury returned a verdict in the sum of $36,764 for the parents and $145,332 for the minor plaintiff. The Court below reduced these amounts to $30,104.60 and $86,500, respectively, a total reduction of $65,491.40. The evidence justified the final judgment as entered by the Court after the plaintiffs had filed appropriate remittiturs. Without entering into details as to Albert Kuhns' injury, disability, and incapacity, it is enough to say that, as a paraplegic victim of a gunshot wound, with his spinal cord severed, his lower organs uncontrollable, and his pedal locomotion destroyed, he has practically nothing to look forward to in life economically, and very little to expect in the way of physical comfort and happiness. An indication of his total helplessness, and the reasonableness of the verdict, as reduced, can be gained from the following portion of the lower Court's Opinion: "It is further contended that the court erred in permitting the jury to consider as an item of damages $2400.00, the cost of an 'ell' added to the plaintiff's home for his convenience and to permit him by the installation thereof to do many things for himself which would otherwise require more constant attention at additional expense. The testimony was that this installation was made at cost and without profit to the contractor. Dr. Keck stated that with this room and the equipment in it the plaintiff could without help get in and out of his bath and with the installed crane and pulley also move into the bed and to a commode. Pictures in evidence show the real necessity and usefulness of the installation. Bathing was necessary to remove muscle spasms which frequently and unexpectedly occurred. The doctor stated that this facility furnished better medical care and rehabilitation and saved expense. The court charged, 'If you consider this item reasonable, you may allow it as you

[ 390 Pa. Page 357]

    would a brace. If you consider it was not reasonable under all the circumstances, then you may like any other item, eliminate it.' We find no error on this point."

Strangely enough, the Bach Estate, while arguing that the verdict was excessive, complains as to the manner in which the lower Court reduced the verdict: "By way of illustration of the arbitrary manner in which the reductions were made by the lower Court, attention is called to the Court's conclusion that the award for minor plaintiff's food and education expenses and care should be reduced from the aggregate of $75,175.40 awarded by the jury to $47,540.00."

We find no error which would justify a retrial of this case, and the judgment is accordingly affirmed.

Mr. Justice COHEN dissents.

ING OPINION BY MR. JUSTICE BELL:

Plaintiffs sued young Brugger and subsequently amended their complaint to join his grandfather's estate. The motion for judgment n.o.v. raises an important question: Did plaintiffs prove that George W. Bach, the deceased grandfather, was negligent in leaving a loaded revolver in the top bureau drawer of his bedroom, or, expressed another way, did plaintiff prove a want of due care under the circumstances of this case?

Albert G. Kuhns, 12 years old, was wounded on July 23, 1953, by a bullet from a pistol discharged by his 12 year old cousin, George A. Brugger, while in the bedroom of their grandfather, George W. Bach, in his cottage in an isolated part of the country along the shores of Lake Erie. The boys were visiting their grandfather

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    as they had for several summers.*fn1 At the time of the actual shooting, the boys, a two year old sister, and a great-aunt were alone in the cottage. Brugger picked up and pointed at Kuhns a combination shotgun and rifle; fortunately the great-aunt of the boys entered the bedroom and ordered Brugger to put away the gun, which he did. He had been previously warned by his grandfather not to touch any gun. We note, parenthetically, but importantly, that the Commonwealth of Pennsylvania issues a hunting license to 12 year old boys to carry a loaded gun and go hunting if accompanied by an adult. Brugger later returned to his grandfather's bedroom and found in the top left-hand bureau drawer a Colt automatic pistol which was loaded.*fn2 Brugger then negligently or accidentally shot his cousin. Was the grandfather guilty of negligence; was he guilty of a lack of reasonable care when he, a very old man living alone in an isolated part of the country - where thefts and burglaries in neighboring estates were well known to Bach and the State Police - kept in his top bureau drawer a loaded pistol in order to protect himself from burglars, robbers and prowlers?

A man's home is no longer his castle, but until today it has been the home of himself and his family. Ever since early Biblical times, in nearly every civilized part of the globe, except recently in Communist countries, the "family" has been the most important and the most sacred thing in life except god. The family unit

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    or entity is created and revered, the family life and love are developed, preserved and solidified when children and grandchildren are allowed in every room of the ancestral home and are treated as one. Children and grandchildren who are forbidden to enter or are locked out of the bedroom of their parents or grandparents will lose the comradeship, the trust, and part of the love they would otherwise have for their parents and grandparents, just in an era when the home, the family life, family discipline, ties, comradeship and love, are so greatly needed in the world in which we live. These can only be produced by a family home which the majority, by their present opinion, are now gravely undermining and disrupting. Moreover, in order to accomplish this very regrettable result, the majority - notwithstanding the tremendous research and the excellent presentation of their views by Mr. Justice BENJAMIN R. JONES - have had (1) to stretch and strain the measure or standard of due care, and (2) to candidly overrule a decision of this Court, namely, Fleming v. Kravitz, 260 Pa. 428, 103 A. 831, and a decision of the Superior Court of Pennsylvania, namely, Swanson v. Crandall, 2 Pa. Superior Ct. 85, and (3) to equate a loaded gun lying along the path by an open road while the owner went to his home to read the newspapers, with a loaded pistol kept in the top bureau drawer of a bedroom in a man's home to safeguard his life.

The majority decision of necessity will require a parent and grandparent to keep under lock and key (and keep the key constantly in his or her pocket) every revolver, carving knife, butcher knife, and every possibly-dangerous household article, as well as every medicine closet, in order to be legally safe from suit by a member of the family or one of their young playmates. If, for example, a burglar or robber entered a

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    man's home at night and he awoke, the would have to try to recall where he had hidden the key, get up in the dark, find it, unlock the drawer and finally get out the pistol, in order to defend himself or his property. By that time it would have been, in many instances, too late to defend himself or to capture the burglar. The present decision will also generate a tremendous number of law suits which will literally bankrupt young married couples who today have no maid or servant to aid them in tending to the children, their home, the cooking, and everything connected with home life. A mother necessarily leaves carving knives, butcher knives and other similar articles attractive to young children on the kitchen table or around their home where the children and their young friends constantly play, while she finishes cooking the meat, arranges or waits on the table, or answers the telephone or the door. Inevitably a child will accidentally or negligently or unwittingly injure a playmate. The law has never heretofore imposed such an unreasonable, unwise, impractical and unsalutary standard of care on the owner of a home or the head of a family. Indeed, this Court has just handed down an opinion in Karen Parks v. Helen Parks, 390 Pa. 287, 135 A.2d 65, in which it holds that it is against public policy to allow a minor child to sue a parent "for acts of negligence affecting the person" of the child. Why shouldn't the same wise public policy apply to a grandfather, especially when the child was injured by a third person's tortious act which was committed in the grandfather's bedroom in the family summer home?

I would hold as a matter of law that, from a legal, practical, family and public-policy point of view, Bach was not guilty of negligence and I would enter a judgment n.o.v. as to the executor of the will of George W. Bach.

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If a judgment n.o.v. is not entered as to Bach, it was not only a palpable, it was, for several reasons, a gross abuse of discretion not to grant a new trial: (1) Because plaintiffs' counsel in his opening remarks to the jury, which he continually emphasized by his examinations of prospective jurors on their voir dire, (and in his closing remarks to the jury) stated that "Bach was President of the American Sterilizer Company, which probably is one of the largest manufacturers of sterilizers in the United States" thus inevitably influencing and prejudicing their minds with the wealth of the defendant; and (2) because of the memorandum as to damages improperly sent out to the jury; and (3) because of the trial Judge's failure to charge on the important issue of the plaintiff-parents' contributory negligence; and (4) especially because the trial Judge's refusal to sever the two actions for trial made a fair trial for Bach a "practical" impossibility.

Why was a fair trial for Bach a "practical" impossibility? The evidence in the case which was admissible against Bach alone and all the reasonable inferences therefrom, amounted (at best for plaintiffs, according to the majority's view of negligence), to slightly more than a scintilla. In spite of this the trial Court admitted, in this joint trial, evidence which was admissible against Brugger but not against Bach; and this inadmissible evidence as to Bach was so much stronger than the scintilla of legally admissible evidence (against Bach) that it could not fail to prejudice the jurors against Bach, and could not possibly be eliminated from their minds when they came to decide Bach's due care or want of due care.*fn3

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The majority say "When Kuhns' and Brugger's testimony were offered the Court very clearly instructed the jury that they were not to consider such testimony in determining the liability of the Bach Estate." This is theoretically unobjectionable, but nearly every judge knows that in reality it is "impractical" and "impossible". A familiar concrete example will more forcefully illustrate the majority's unrealistic position. When a man is tried for murder, evidence of an entirely unrelated crime is admissible in order to aid the jury in determining, not his guilt, but the penalty to be inflicted if their verdict is murder in the first degree. Every trial judge explains the limited purpose of such testimony; but nearly every trial and appellate court judge knows, and I venture to express my belief that every Judge in this Court believes that it is in reality impractical and impossible for the jury not to be influenced by such testimony in determining the guilt or

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    innocence of the defendant.*fn4 If the evidence of an unrelated crime, is, as we all believe, sufficient to influence and prejudice the jury in determining criminal liability, i.e., guilt or innocence of murder, isn't it clear that this jury could not fail to be unconsciously but unjustly influenced and prejudiced against Bach by the direct and the relatively very strong testimony proving Brugger's negligence and incidentally, even though inadmissible against Bach, Bach's negligence (if the majority's theory is adopted)!

The majority's refusal of a new trial is untenable. The majority say that if you eliminate the testimony of Kuhns and Brugger, the jury still had sufficient, although barely sufficient facts (and inferences therefrom) to justify a verdict of negligence against Bach. That would be the proper test in considering, not a new trial, but an n.o.v. Nevertheless, in sustaining the lower Court's refusal of a new trial, the majority now unwittingly apply the legal test for an n.o.v. instead of the test for a new trial. The basic question on this point is not whether, eliminating the inadmissible testimony of Kuhns and Brugger, there was barely sufficient evidence to fasten negligence upon Bach - the question is whether, when you take a scintilla a of evidence of negligence and pile upon it (relatively) strong and direct inadmissible evidence of (under the majority's theory) negligence, you can justify a failure to grant a severance and a new trial by applying the test which is applicable only in questions involving n.o.v., namely, were there sufficient facts and inferences therefrom to justify a verdict?

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The majority also cite the general rule (Rule 35)*fn5 that since the question of severance was not presented by appellants in the statement of questions involved, it should not be considered on this appeal. It was strongly urged at the trial and in the written motion and argument for a new trial. No objection to a consideration of this question was made in this Court (nor of course in the Court below) by any of the parties. Moreover, it is the duty of this Court, which it has often followed, to render a decision in accordance with the merits and justice of the case: Act of May 20, 1891, § 2, P.L. 101, 12 PS 1164; and "[where] there has been some basic or fundamental error seriously affecting the merits of the case and imperatively calling for reversal" we have never failed to grant a new trial, even if it involved disregarding a technical rule of Court or any other technicality: Commonwealth v. Schultz, 170 Pa. Superior Ct. 504, 512, 87 A.2d 69; Commonwealth v. Klick, 164 Pa. Superior Ct. 449, 453, 65 A.2d 440; Commonwealth v. Kahn, 116 Pa. Superior Ct. 28, 30, 176 A. 242; Commonwealth v. Zang, 142 Pa. Superior Ct. 573, 577, 16 A.2d 745. See also: Fries v. Ritter, 381 Pa. 470, 476, 112 A.2d 189; Downes v. Hodin, 377 Pa. 208, 104 A.2d 495; Falk & Co. v. South Texas Cotton Oil Co., 368 Pa. 199, 82 A.2d 27.

Two additional reasons make the granting of a new trial even more imperative. The memorandum as to liability and damages (for the parents, and for Albert for pain, suffering, humiliation and embarrassment, etc.) which the trial judge sent out to the jury, was, in my opinion, unfair and undoubtedly prejudicial. Furthermore, Kuhns' father and mother recovered a verdict, in accordance with said memorandum, of over

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$36,000 for expenses incurred to date of trial, expenses to be incurred until their boy arrived at the age of 21 years, and damages for loss of earning capacity, in spite of the fact that they could have been guilty of contributory negligence in failing to prohibit their son from entering or warning their son not to enter into his grandfather's room in his absence or to touch his guns or pistol; and consequently would not be entitled to recover anything.*fn6 Yet neither in the charge of the Court, nor in the memorandum sent out by the judge to the jury was anything said (or written) to permit the jury to pass upon this important question of the parents' contributory negligence.

For the aforesaid reasons I would enter a judgment non obstante veredicto in favor of the Bach Estate. If a judgment n.o.v. is refused, I would grant a new trial in the interest of justice, because the dismissal of the motion for a new trial by the Court below constituted a palpable and gross abuse of discretion.


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