dissenting. 1. A careful reconsideration of the holding in Faith v. Massengill, 104 Ga. App. 348 (121 SE2d 657), impels me to the belief that such holding is proper and should not be overruled as suggested in the majority opinion.
We were there concerned with the question of whether an 8-year-old child could be guilty of primary negligence. Applying well established case law involving contributory negligence, we held it to be a jury question as to whether or not an 8-year-old child could be guilty of primary or actionable negligence. The cases cited in Faith made it clear that a child six years old and under could not as a matter of law be guilty of contributory negligence, but a question for the jury was presented where the child was over seven years of age.
In Faith v. Massengill, 104 Ga. App. 348, supra, we rejected the theory that a different test should be applied where the child was a plaintiff (contributory negligence) and when he was a defendant (primary negligence). We cited authority from other jurisdictions that the same test should be applied in determining both primary and contributory negligence. See citations in Faith v. Massengill, supra, p. 353. If a child is of such age that his contributory negligence would bar his recovery, then such a child should also be accountable for his primary negligence. There appears to be no sound or legally justifiable reason for applying a different standard.
No cases are cited in the majority opinion which support the statement that "the rule is completely different as applied to minor plaintiffs and minor defendants.” The apparent authority for this statement is Code § 105-1806 which provides that "infancy is no defense” provided the defendant has arrived at the age of discretion and accountability prescribed by the Code for criminal offenses. This Code section is negative in character in that it merely sets a "ceiling” age at which the defense of infancy cannot be used. When it was enacted the legislature was aware of the case law holding that between the ages of seven and ten (the age under the old Criminal Code) a jury question on negligence was *861presented. Obviously the legislature did not intend to disturb the holding in these cases nor did it intend to set a double standard of negligence for minors under the age of the prescribed ceiling.
The legislature in the new Criminal- Code effective July 1, 1969, raised the age of accountability for crime from 10 to 13 years, having in mind the provisions of the Juvenile Court Act which were not in effect when the old Code § 26-302 set the age at 10 years. In my opinion, such action could not have intended to affect existing tort law.
2. Even if Code § 105-1806 is construed to cover all defenses of infancy rather than merely setting a ceiling, using the words "prescribed by this Code for criminal offenses” referred to the 1933 Code, certainly it cannot be said that this Code section referred to the new Criminal Code of 1968. The 1933 Code provision on this was Code § 26-302 which provided that the age of accountability was ten. The defendant in this case was age 12.
3. Under what is said in either Division 1 or 2, it is clear that the trial court correctly overruled this 12 year old defendant’s motion for summary judgment based on the premise that a defendant of that age cannot as a matter of law be held accountable for his alleged negligence.