Baker v. Babitt

SAYRE, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

This action was instituted! in Cuyahoga Common Pleas on behalf of Joseph Babitt, a minor, by his next friend, his mother, against Baker. Baker’s son sold 1,000 cartridges to Albert Slosser, aged 14, who gave some of them to Lester Lazelle, of same age, who hid them at home. His mother having discovered them, ordered her son to give them back to Slosser. But he gave them to Russell Tómasele, aged 12, who distributed them to two other boys, and at a bonfire where the boys were assembled, the shells were thrown on the fire and one of them exploded and destroyed one of the eyes1 of Joseph Babitt.

John C. Baker was a gunsmith, engaged in repairing and selling guns. His son Ralph, who was 21 or 22 years old, assisted his father and was paid by the hour. The Bakers testified that the same of amunition was exclusively the business of the son, and for the space occupied by the amunition the son paid the father rent. No books were kept, but Ralph was paid every evening for his services. The cartridges were purchased by Ralph.

Separate letter heads of the father’s business as gunsmith, under the name, of Weston Gunworks, and of the son, “R. J. Baker, Amu-nition Exclusively,” were introduced in evidence. Judgment was rendered for Babitt for $1,500. It was contended by Baker that the son was not his agent in this transaction, and that there was an intervening cause when the mother ordered the son to return the shells. In affirming the judgment, the Court of Appeals held:

1. “The principal question in dispute is whether John C. Baker was engaged in selling cartridges. We cannot say in view of the considerations that the verdict is not supported by sufficient evidence.”

2. As to the court’s failure to give the charge requested by Baker, that the mother’s act was an intervening cause, the charge does not properly submit the question of an intervening cause to the jury. What was the proximate cause, and whether there was an intervening cause, were questions for the jury, 94 TJS. 469. Even if the facts had been stated correctly in the request, it would have been erroneous for the court to charge that the action of Mrs. Lazelle was an intervening cause. The court might as well have directed a verdict. The original wrong was in selling to a boy 14 years old and by thus putting into his hands an instrument which could injure him and others. This wrong continued until the injury of Joseph Babitt.