Judd v. Ballard , 66 Vt. 668 ( 1894 )

MUNSON, J.

The plaintiff was injured by the discharge of a revolver in the hands of the defendant, while the two 'Were reclining, partially facing each other, in the bottom of a moving wagon. The defendant had discharged one barrel for amusement, and was fixing the hammer preparatory to returning the revolver to his pocket, when the discharge which injured the plaintiff occurred.

Upon the facts presented the defendant is clearly answerable for the damages sustained by the plaintiff. The shooting of the plaintiff was an accident, but in no sense an unavoidable accident. It would not have occurred but for the defendant’s carelessness. The test of liability is not whether the injury was accidentally inflicted, but whether the defendant was free from blame. Vincent v. Stinehour, 7 Vt. 62; Morris v. Platt, 32 Conn. 75; Bullock v. Babcock, 3 Wend. 391.

The plaintiff’s damages are recoverable in an action of trespass. The injury was the direct result of a force put in motion by the defendant. The fact that the force was put in motion through negligence does not preclude the plaintiff from maintaining trespass. Neither an intention to injure the plaintiff, nor an intention to do the act which caused the injury, is essential. It is sufficient if the defendant does a positive act from which the plaintiff suffers an immediate injury. 1 Smith Lead. Cas. 560; Leame v. Bray, 3 East 593; Welch v. Durand, 36 Conn. 182; Claflin v. Wilcox, 18 Vt. 605; Howard v. Tyler, 46 Vt. 683.

It was proper to direct a verdict. There was no room for conflicting views as to the essential feature of the defendant’s conduct. The question was not whether it was proper to place the hammer between two cartridges, nor whether the defendant was handling the hammer in a proper manner. However proper it may have been to place the hammer in that position, and whatever the care with which the defendant was moving the hammer, it was negligence to be adjusting it with the revolver so held that an accidental discharge would injure the plaintiff. There was no evidence tending to show that the position of the revolver at the time of discharge was due to any controlling outside force, and no circumstances shown from which the presence of such a force could be inferred. Any danger that might arise from the jolting of the wagon the defendant was bound to consider. The undisputed facts admit of no inference which could relieve the defendant from liability.

There was no error in permitting a recovery for the plaintiff’s loss of time. The seiwices of a minor child belong to the father if claimed, but the father can waive his right to them,'either by complete emancipation or by a relinquishment in the particular instance. A recovery for services thus relinquished may be had in the name of the minor. A minor for whose benefit such a relinquishment has been made may be permitted with at least equal propriety to recover for his loss of time in an action of tort. In such a case the damage is claimed in connection with other damages, resulting from the same injury and recoverable only by the minor. If the minor be permitted to recover this with the other damages, the wrongdoer will be saved the expense of a second suit. It seems to have been considered in Stiles v. Granville, 6 Cush. 458, that a minor may recover for his services when the waiver is made after the service is rendered and before the bringing of the suit. A majority of the court think a recovery for loss of time is permissible upon a waiver made after the suit is commenced. This view is supported to some extent by the holdings in Smith v. Perry, 26 Vt. 279, and Cole v. Kimball, 52 Vt. 639. When such a recovery is permitted, it is the better practice to require of the parent the filing of a formal waiver. The damage resulting from the plaintiff’s loss of time was ascertained by a special verdict; and this will not be included in the judgment, unless the plaintiff’s father files with the clerk a release of any claim on his part.

There was no error in permitting the plaintiff to recover the expense of medical attendance. Although the physician had made his charges on book to the father, there was evidence tending to show that he was employed by the plaintiff, and had been promised payment by the plaintiff after he became of age. It was to be determined from the whole evidence where the liability for payment rested. The question was submitted to the jury with proper instructions, and the matter is disposed of by the verdict.

The court found the facts which the testimony recited in the bill of exceptions tended to prove, and granted a certified execution. It is insisted that the granting of a certified execution upon these findings was error. We think the findings present a case in which such an execution could properly be granted. The statute authorizes it in the case of a wilful and malicious neglect as well as in the case of a wilful and malicious act. The force given to the word “ malicious ” as here used may be gathered from Whiting v. Dow, 42 Vt. 262, and Boutwell v. Harriman, 58 Vt. 516. The meaning of the word “ wilful ” is considered in Hill v. Cox, 54 Vt. 627, where it is said that a wrong wilfully done is a wrong purposely done. The defendant did not purposely shoot the plaintiff, but he purposely subjected him to the risk involved in manipulating the hammer of a loaded revolver while it was pointed at his person. We think this was such a neglect as the statute was intended to cover.

Judgment affirmed.

Munson and Start, JJ., dissent from so much of the opinion as permits a recovery for loss of time.