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NEYMAN v. SOUTTER (12/16/64)

decided: December 16, 1964.

NEYMAN
v.
SOUTTER, APPELLANT



Appeal from order of Court of Common Pleas of Allegheny County, Oct. T., 1961, No. 1225, in case of Bartholomew Neyman v. Harry Reese Walter Soutter et al.

COUNSEL

Ines W. Cordisco, for appellant.

Robert Palkovitz, with him David S. Palkovitz, Jack Palkovitz, and Palkovitz and Palkovitz, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Flood, J.

Author: Flood

[ 205 Pa. Super. Page 9]

Erma Soutter has appealed from the refusal of the court below to grant her motion for judgment n.o.v. or a new trial after a verdict in favor of the plaintiff against both defendants. The other defendant, Harry Soutter, is the natural son of Erma Soutter. He was adopted by her parents, his grandparents, and lived with them until their death. In 1951 Erma also joined the household but Harry apparently regarded her as a sister, and regarded his grandparents who had adopted him, as his parents. The four lived together until the death of Erma's father. Thereafter Erma, Harry and Katherine Soutter made their home together until September 15, 1960, the date of the occurrence giving rise to this action.

On that day Harry, then 23, took a pistol from a drawer in the house and in the course of an argument with plaintiff shot him in the arm. The plaintiff was burning trash and Harry, thinking the fire was out of control, had called the fire department. The pistol used by Harry had belonged to his grandfather and was kept in the house which his grandmother, Katherine Soutter, then owned.

The court below submitted to the jury the question of Erma Soutter's negligence in allowing an irresponsible person to have possession of a firearm, on the theory that Harry and the gun he used were under her control.

Two of plaintiff's witnesses stated that Harry was "irresponsible". Among the incidents relied upon to show irresponsibility were occasions when Harry sat on store counters and interfered with clerks who were busy. On another occasion he made a long distance phone call on a neighbor's phone (which he charged

[ 205 Pa. Super. Page 10]

    to his own account) because he was not allowed to make such calls at home. He was subject to occasional blackouts and had never been steadily employed. After two months in the army he received a medical discharge.

The evidence goes no further than to show that Harry was at times inconsiderate, impolite and unmannerly, that he acted "bossy" and stated he could take care of himself. The opinion of the two witnesses that he was irresponsible is not supported by evidence of any instance of irresponsible conduct prior to the occurrence giving rise to this suit. The finding of irresponsibility can only be based upon these opinions, supported by nothing but vague generalities, and falls short of showing that Erma knew or should have known that Harry would be likely to injure others with the gun.

At the time of the shooting Erma and Katherine Soutter were at a friend's house having supper. While Erma knew that Harry had access to the gun, it was not her gun nor was it kept on property owned by her. Legal title to the real estate was not turned over to Erma until July 5, 1961, nine months after the incident. The gun had belonged to Erma's father and had ...


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