The plaintiff filed a tort claim against the defendant, who was 12 years old at the time the alleged injury took place. The defendant filed a motion for summary judgment *859which was overruled. An appeal was taken and the case is here for review. Held:
Submitted May 5, 1971 Decided September 21, 1971 Rehearing denied November 16, 1971Code § 105-1806 provides: "Infancy is no defense to an action for a tort, provided the defendant has arrived at those years of discretion and accountability prescribed by this Code for criminal offenses.” The age of discretion and accountability for criminal offenses is 13. Code Ann. § 26-701 (Ga. L. 1968, pp. 1249, 1270). The defendant not having attained the age of 13 at the time the alleged tort took place, he was immune from suit. "A child is responsible for its torts under the same rules applicable to the commission of crime.” Riggs v. Watson, 77 Ga. App. 62, 68 (47 SE2d 900). See Central R. v. Brinson, 70 Ga. 207 (5 d); Shirey v. Woods, 118 Ga. App. 851, 855 (165 SE2d 891).
The rule is quite different when the negligence of a child relates to an action in which he is plaintiff, or in which his parents are litigating because of injuries to the minor child. In that situation, most of the cases provide that he can not be accounted negligent where he is six years of age or less; and in one case, Harris v. Combs, 96 Ga. App. 638, 643 (101 SE2d 144), it was held that a child seven years of age was too young to be negligent. But if the action is brought against the child, he may plead his infancy as an absolute defense, provided he was less than 13 years of age at the time of the alleged tort.
The only case holding to the contrary is that of Faith v. Massengill, 104 Ga. App. 348 (1 a) (121 SE2d 657), and it will be noted that same cites as authority a number of Georgia cases, and reference will show that in each case the allegedly negligent minor child was a plaintiff, and not a defendant. As stated above, the rule is completely different as applied to minor plaintiffs and minor defendants. Thus, Division 1 (a) of Faith v. Massengill, 104 Ga. App. 348, supra, is hereby overruled. The failure to grant the defendant’s motion for summary judgment was error.
Judgment reversed.
Bell, C. J., Eberhardt, Pannell, Deen, Whitman and Evans, JJ., concur. Jordan, P. J., and Hall, P. J., dissent. *860Jay M. Sawilowsky, for appellant. George B. Rushing, Allgood & Childs, Thomas F. Allgood, for appellee.