Olson v. Hemsley

Grace, C. J.

This is an appeal from a judgment in favor of defendant. A concise statement of the material facts will give a clearer understanding of the issues.

The defendant, when Clifford Olson was injured in the manner hereinafter stated, and of which injuries he died, was operating a grocery store and soft drink establishment at Walhalla, N. D. Among others, he employed at such place of business one Herbert Clements, age 13 years and 3 months, and Clifford Olson, age 16 years 6 months and 12 days, who discharged the usual duties incident to their employment in the store. They were in charge of the store when defendant was not present. In the store there were three money drawers, where they were authorized to get change. In one of the drawers for about 15 years defendant had kept a 32-cáliber revolver, which, for a year or more prior to the time of the injury resulting in death, was loaded.

On the 10th day of August, 1920, and while the defendant was temporarily absent from the store, Herbert Clements went to the money drawer in which the loaded gun lay, and opened that drawer for the purpose of cashing a check. After he had opened the drawer he called *781Clifford Olson to cash the check. This was the first time that young Clements had opened the drawer, though he was authorized to use it. While Olson was engaged in cashing the check from the money in this drawer, the Clements boy took the loaded revolver out of the cash drawer, rested it on the edge of the drawer, and it went off, the bullet entered the abdomen of Clifford Olson, who was standing nearby; he died a few minutes later as a result of the injury.

Defendant knew the gun was in the drawer, and had warned Clifford Olson about it, but not Herbert Clements, and knew that the Clements boy was somewhat careless and reckless. The Olson boy was in good health, was in the second year high school at Walhalla, and during vacation was earning $40 per month, which was contributed to the support of his parents and the family. The plaintiff is the father of Clifford Olson, and besides Clifford there w¡ere two other children, whose ages were 11 and 3 years respectively.

Plaintiff’s first cause of action is based upon the alleged negligence of the defendant in carelessly and negligently permitting a loaded revolver to remain in one of the cash drawers in his store where he employed two young boys within whose reach in one of the cash drawers was the loaded revolver, and, further, that the defendant was negligent in employing a reckless and careless servant, the Clements boy.

For his second cause of action plaintiff alleges a failure of defendant at any time prior to the 10th day of August, 1919, to apply to the. Workmen’s Compensation Bureau of the state of Norh Dakota for classification as an employer, and his failure to comply with the provisions of law in that respect, which is chap. 162 of the Session Laws of 1919, and further sets out his failure to pay a premium as a member of the Compensation Fund to be applied in compensation of injured workmen while engaged in hazardous employment, and further avers that Clifford Olson was killed while engaged in the performance of his duty, and while within the course of business of his employer.

There is one assignment of error only that requires any consideration. It is that the court erred in granting defendant’s motion, made at the close of appellant’s case, that the jury be directed to return a verdict in defendant’s favor for a dismissal of the action. Plaintiff bases his right to maintain the action on § 8323, C. L., as amended by chap. 106 of the Session Laws of 1917, which gives him that right where there is a cause of action under § 8321. But one of the principal questions *782in the case is whether the right of action under 8321 is abolished by the enactment of the Workmen’s Compensation Act.

That the plaintiff is the father of Clifford Olson is not controverted, and neither are the facts relative to the injury which caused the death of Clifford Olson. Taking all evidence into consideration, and assuming it to be true, and assuming for the present that plaintiff had a right of action under chap. 39, and under §§ 9 and 11 of the Compensation Act, can it be said that the trial court did not err in holding that the defendant, as a matter of law, was not negligent where the proof shows that he permitted a loaded revolver to remain in a cash drawer in his store, which was in charge of Clifford Olson and young Clements during his absence, and where the defendant knew the revolver was loaded, and that it had been loaded for a year or two prior to the fatal shot and injury, and further, where he knew that young Clements was somewhat careless and negligent, and where he knew, or must be held to have known, that a firearm, a revolver, when loaded, is a dangerous instrumentality to leave in any location where it would be accessible to boys of as tender years as these. He knew, or should have known, that their curiosity would have been aroused, and that to boys of their ages a gun or firearm of any kind is usually very attractive — they have an almost uncontrollable desire to handle, examine, and experiment with the same — and we think the testimony is sufficient to show that the defendant knew these things, and that he told Clifford Olson about the gun, and warned him, but did not tell young Clements about the gun, or give him any warning.

We are of the opinion that the court could not say, as a matter of law, in the circumstances in this case, that defendant’s acts did not constitute actionable negligence where injury resulted to one by the discharge of the revolver while in the hands of one of the youths, and, further, where it appears the defendant reasonably should have apprehended the consequences which ensued. As was said in the case of Sullivan v. Creed, 2 British Ruling Cases, 163:

“All third party cases are difficult, because, in tracing the chain of cause and effect, circumstances often make it almost impossible to distinguish between a flaw and a break, or to say whether the intervention of the third party has not so far predominated in bringing about the injury as to make it right to say that the act of an original party was not an effective cause of the ultimate result.”

Likewise, in the case at bar, the shot fired which injured and killed *783Clifford Olson was not fired by the defendant, but by young Clements, a third party; but he could not have fired the fatal shot if the plaintiff had not carelessly and negligently permitted the loaded revolver to be where it was, and where young Clements, who was known to defendant to be careless and reckless, had access to it. The carelessness and negligence of the defendant in this respect was in reality the proximate cause of the injury.

The facts above stated are wholly undisputed, and it seems that the defendant should have apprehended that it was dangerous to the public to keep a loaded revolver where this was, knowing that it was a dangerous instrumentality, which, even in the hands of one experienced in its use, must be handled with great care in order to have due regard to. the safety of others, and knowing further that instinctively the ordinary youth is attracted to it.

We are of the opinion that there -is sufficient evidence of defendant’s negligence in the respect hereinbefore stated as to require that question to he submitted to a jury, and that it was for it to determine under all the evidence whether the defendant was negligent, or if he should have apprehended the consequences which did result by his having placed the loaded revolver where he did place it, which, in fact, was in a place where the two youths would be expected at times to resort in the discharge of their duties — that is, in the cash drawer.

At the commencement of the trial defendant objected to the introduction of any evidence on the ground that sufficient facts were not stated in the complaint to constitute a cause of action, for the reason that § ii of chap. 162 of the Session Laws of 1919 is exclusive, and that it conferred no right on the father, but only on the personal representatives of the deceased, to bring an action. The court overruled the objection, and permitted the trial to proceed, but required plaintiff to elect on which cause of action he based his right to recover. Plaintiff elected to proceed under the first cause of action.

The trial court, at the conclusion of plaintiff’s case, found, as a matter of law, that there was insufficient evidence to establish negligence on the part of the defendant, and directed a verdict in his favor. This, we think, was reversible error.

Section 11, in so far as necessary to be here set out at length, provides:

“Employers subject to this act, who shall fail to comply with the provisions of § 6 and § 7 hereof, shall not be entitled to the bene*784fits of this act during the period of such noncompliance, hut shall be liable to their employees for damages suffered by reason of injuries sustained in the course of employment, and also to the personal representatives of such employees where death results from such injuries.”

The defendant did fail to comply with §§ 6 and 7, and hence was not entitled to the benefits of the act during the period of noncompliance. He thus became liable in an action at law for damages occasioned by his negligence, if any, and that action would be such as is provided by § 8321, C. L. 1913.

If it be so conceded, as we think it must, that such right of action against the employer in the conditions mentioned in § xi still remains, we think the action may be brought in the manner provided by § 8323, C. L., as amended by chap. 106 of the Session Laws of 1917. In other words, the right of action being preserved, so are the remedies to enforce it: hence we think the father was the proper party to maintain the action.

We are of the opinion that plaintiff’s first cause of action is a proper one, that he has legal right to maintain it, and that the question of defendant’s negligence, under the evidence, is a question of fact for the jury.

The judgment from which appeal was taken is reversed, and the case is remanded for a new trial. Appellant is entitled to his costs and disbursements on appeal.

Birdzell, J., concurs.