Langford v. Shu

128 S.E.2d 210 (1962)

258 N.C. 135

Athlyn B. LANGFORD v. Midgie L. SHU.

No. 242.

Supreme Court of North Carolina.

November 21, 1962.

*211 McDougle, Ervin, Horack & Snepp and C. Eugene McCartha, Charlotte, for plaintiff, appellant.

Boyle, Alexander & Wade, Charlotte, for defendant, appellee.

SHARP, Justice.

This case involves a practical joke which caused unintended injury. However, the fact that it is a practical joke which is the cause of an injury does not excuse the perpetrator from liability for the injuries sustained. 52 Am.Jur., Torts, Sec. 90; 86 C.J.S. Torts § 20. Where voluntary conduct breaches a duty and causes damage it is tortious although without design to injury. 62 C.J., Torts, Sec. 22.

If an act is done with the intention of bringing about an apprehension of harmful or offensive conduct on the part of another person, it is immaterial that the actor *212 is not inspired by any personal hostility or the desire to injure the other. See Annotation, Right of Victim of Practical Joke to Recover Against its Perpetrator, 9 A. L.R. 364.

In Johnston v. Pittard et al., 62 Ga.App. 550, 8 S.E.2d 717, six defendants, as a practical joke, persuaded plaintiff to go with them to a house in the country to see "some wild women." When they arrived at their destination, a vacant farm house, a man yelled from within and two shots were fired in plaintiff's direction. He "ran in desperation and fear of his life and fell into a ditch as a result of which he sustained injuries." The Court of Appeals, in ordering a new trial after verdict for the defendants, held that the defendants would be liable if they should have foreseen that injurious consequences to the plaintiff were the natural and probable result of their conduct and that this was a question for the jury.

In Lewis v. Woodland et al., 101 Ohio App. 442, 140 N.E.2d 322, plaintiff sought damages for a back injury which occurred while she was a guest in the automobile of the defendant Jones when she jumped with fright after defendant Woodland dropped a life-like rubber lizard in her lap. She alleged that the act of Woodland was the result of a preconceived plan of both defendants to frighten her and cause her to react suddenly and violently. The jury returned a verdict in favor of the plaintiff against both defendants. The court ruled that "the question of forseeability of the consequences of the defendants' perpetration of a joke was properly for consideration by the jury * * *." In the syllabus by the court it is said:

"Where a person's conduct is such as to frighten or cause an emotional disturbance to another, which the former should recognize as involving an unreasonable risk of bodily harm, the fact that the harm results solely from the internal operation of the fright does not protect the former from liability.

"Once it is shown that a person charged with frightening another should have anticipated that some injury would likely result from his conduct, * * * responsibility attaches for all consequences naturally resulting from the former's conduct * * * although it might not have been specifically contemplated or anticipated."

The defendant in the instant case owed to the plaintiff the duty not to subject her to a fright which, in the exercise of due care or reasonable foresight, she should have known was likely to result in some injury to her. Kirby v. Jules Chain Stores Corp., 210 N.C. 808, 188 S.E. 625. Restatement of Torts, 1177, Sec. 436; Lewis v. Woodland, supra. The purpose of the box labeled "Danger, African Mongoose, Live Snake Eater" was to produce sudden fright and to cause the affrighted person to recoil violently. The degree of fright generated would depend upon the fortitude of the individual victim.

Had the defendant herself demonstrated the box and sprung the trap which released the fake mongoose, there is no doubt that it would be for the jury to say whether or not she should have reasonably foreseen that some injury might result to the plaintiff from the perpetration of her joke. The question now arises whether the defendant is liable for the act of her eleven-year-old boy who released the furry object which frightened plaintiff into precipitous flight and caused her injury.

North Carolina is in full accord with the common-law rule that the mere relation of parent and child imposes on the parent no liability for the torts of the child. The parent is not liable merely because the child lives at home with him and is under his care and control. Apart from the parent's own negligence, liability exists only where the tortious act is done by the child as the servant or agent of the parent, or where the act is consented to or ratified by the parent. A parent is liable for the act of his child *213 if the parent's conduct was such as to render his own negligence a proximate cause of the injury complained of. In such a case the parent's liability is based on the ordinary rules of negligence and not upon the relation of parent and child. 39 Am.Jur., Parent and Child, Sec. 55. Furthermore, "a parent may be liable for the consequences of failure to exercise the power of control which he has over his children, where he knows, or in the exercise of due care should have known, that injury to another is a probable consequence * * *. Failure to restrain the child, it is said, amounts to a sanction of or consent to his acts by the parent * * *. (A)s in all negligence cases, the issue in the last analysis is whether the parent exercised reasonable care under all the circumstances * * *." 39 Am.Jur., Parent and Child, Sec. 58; See also 67 C.J.S. Parent and Child, § 68.

In Lane v. Chatham, 251 N.C. 400, 111 S.E.2d 598, this Court in an opinion by Bobbitt, J. fully considered the liability of parents for the torts of their child. In that case the parents had entrusted their nine-year-old son with an air rifle with which he injured the plaintiff. There was evidence that the mother knew the boy had shot at others before; there was no evidence that the father knew this. In sustaining a verdict against the mother the Court said that a parent was negligent, and therefore liable, if under the circumstances he "could and should, by the exercise of due care, have reasonably foreseen that the boy was likely to use the air rifle in such manner as to cause injury, and failed to exercise reasonable care to prohibit, restrict or supervise his further use thereof."

Defendant in this case set the stage for her children's prank; she aided and abetted it by her answers to the plaintiff's questions about the box. Defendant had seen the box demonstrated and she knew as only the mother of boys aged nine and eleven could know, that unless she took positive steps to prevent it, they would not let such a wary and apprehensive prospect as Mrs. Langford escape without a demonstration. To reach any other conclusion would be to ignore the propensities of little boys who, since the memory of a man runneth not to the contrary, have delighted to stampede timorous ladies with snakes, bugs, lizards, mice and other rewarding small creatures which hold no terror for youngsters. It is implicit in this evidence that defendant expected to enjoy the joke on her neighbor as much as the children, and that she participated in the act with them. To say that she should not have expected one of the boys to spring "the mongoose" on plaintiff would strain credulity.

Defendant contends that the plaintiff, when she came visiting, was a mere licensee, Murrell v. Handley, 245 N.C. 559, 96 S.E.2d 717, and that defendant owed plaintiff no duty to keep her premises in a safe and suitable condition for callers. Suffice it to say that plaintiff's injuries did not arise from any defect or condition of the premises. They were not due to passive negligence or acts of omission. Pafford v. J. A. Jones Construction Co., 217 N.C. 730, 9 S.E.2d 408. Plaintiff's status as a licensee is immaterial to the decision of this case.

Taken in the light most favorable to the plaintiff the evidence would permit the jury to find that defendant approved and participated in the practical joke her children played on the plaintiff; that defendant knew plaintiff was afraid of snakes and of the contents of the box which defendant had told her contained a mongoose which ate live snakes; that in the exercise of due care defendant could have reasonably foreseen that if a furry object came hurtling from the box toward plaintiff she would become so frightened that she was likely to do herself some bodily harm in headlong flight. In our opinion, and we so hold, the evidence makes out a case for the jury.

The judgment of the court below is reversed.

Reversed.