(concurring). I join the opinion of the court based on the finding that Sharon, a five-year-old child, did not intend to strike Michael and that Michael’s injury was not inflicted wilfully or mali-*721eionsly. These findings of fact are not challenged, for, as the court’s opinion points out, the plaintiff did not, as was his right, seek corrections in the finding. In other words, whether a minor of tender years has conducted himself with the care and prudence due from one of his years, experience and intelligence is strictly a question of fact for the trial court.
There is, however, a statement in the record before us which reads as follows: “To find the defendants’ child liable for such an act would be to impose upon a child of five years a standard of conduct and maturity of judgment not reasonably to be expected of children of such tender age.”2 This statement, which appears in the trial court’s memorandum of decision, is an incorrect statement of the law and one which we cannot and should not overlook.
In Jennings v. Rundall, 8 T.R. 335, 101 Eng. Rep. 1419, decided in 1799, Lord Kenyon, in a leading English case, said (p. 337): “[I]f an infant commit an assault, or utter slander, G-od forbid that he should not be answerable for it in a Court of Justice.” Thus, in Garratt v. Dailey, 49 Wash. 2d 499, the defendant, a boy aged five years and nine months, pulled a chair out as the plaintiff, an adult woman, was in the act of sitting down in the chair. When she hit the ground, she sustained a fractured hip. The court assumed that the defendant did not intend to hurt her. But the evidence indicated that the boy knew what would happen and thus intended, in effect, to hit her with the ground. The plaintiff recovered a judgment of $11,000 against the boy. And in Ellis v. D’Angelo, 116 Cal. App. 2d 310, a *722four-year-old child was held capable of intending the violent and harmful striking of another. “Accordingly, infants are held liable for assault and battery, trespass to land, conversion, defamation, seduction, deceit, and negligence.” Prosser, Torts (4th Ed.) p. 996; see 1 Harper & James, Torts § 8.13, p. 658; Fleming, Torts (2d Ed.) pp. 24-25; 43 C.J.S., Infants, § 103.
Since the trial court found lack of intent on the part of the child and that Michael’s injury was not inflicted wilfully or maliciously, the judgment is logically supported by the subordinate facts and therefore should be affirmed.
The record discloses that the infant (Sharon) was not made a party defendant in the action; hence, under no circumstances, could the trial court render judgment against the infant. Why the infant was not made a party defendant, quaere.