dissenting. I shall confine myself to the crux of the case and not attempt to discuss the irrelevant matters covered in the majority opinion.
The agreement by J. R. Crank to take care of the plaintiff’s son will in law be construed to mean that he would exercise *221ordinary care to do so. This is an action for breach of a contract to exercise ordinary care in safeguarding plaintiff’s son.
1. In the first place the facts in this case do not bring it within the category of the social guest cases. In those cases we have only invitations and no express agreement to safeguard a minor, or anyone else, as we have in this case.
2. In the second place the rationale of the right to recover is not based on what harm to the minor could or should have been foreseeable at the time of the invitation. It is that the defendant could have heard the explosions and could have stopped them in the exercise of ordinary care, thus preventing harm to plaintiff’s son. There is no showing in support of the motion for a summary judgment that this allegation is not true. Young Wittlce is not a party and what his opinion is as to where the sound of the explosions would seem to the defendant to come from is not binding on the plaintiff.
3. The majority has put a construction on the showing by the defendant precisely the opposite from that provided by law. There is no affidavit or deposition by the defendant.
4. I do not know on what theory the court granted the summary judgment but I can guess from the argument of appellee that he did so on the theory that the Wlttke boy’s participation in illegal acts prevented the father’s recovery. But even so his judgment would be right if the allegations were pierced and the matter presented in support of the motion for a summary judgment demanded a judgment for the defendant. Construed against the movant the motion and supporting material require a jury trial on the question of whether under the circumstdnces the defendant Crank could have by the exercise of ordinary care prevented the harm which came to the plaintiff’s son whether or not he could have or should have anticipated the exact nature of the harm.
In my opinion the insinuation that the defendant’s agreement to take care of the plaintiff’s son, under the circumstances here, meant no more than an agreement that he would furnish the son accomodations for the night as he would by an agreement to make a reservation for a transient is so wrong that it doesn’t merit an answer.
*222The majority opinion in generalities states that the pleadings are pierced. I challenge them to show such to be the case in minute detail.
The headnote is completely misleading. The question in this case is not whether the defendant had any knowledge of the facts of the injury before they occurred. The question is whether he kept his agreement with the boy’s mother to exercise ordinary care in looking after him, whether under the circumstances he could have by the exercise of ordinary care discovered that the boys were playing with fireworks and should have stopped them before the serious injuries to the plaintiff’s son.
I am authorized to state that Judge Deen concurs in this dissent.