Milton Bradley Co. of Ga. v. Cooper , 79 Ga. App. 302 ( 1949 )

The plaintiff amended his petition by alleging: "1. That defendant, R. E. Benson, kept said bombs in a counter near the front of said store, and that the door to said counter was not locked or otherwise fastened, and said bomb could be procured from said counter by simply opening the door thereto, and that said door could be opened by a child. 2. That defendant, R. E. Benson, permitted his son, David Benson, the general run of the store, and permitted him to go in the counter at will and to obtain from the store any of the merchandise therein without purchasing same or obtaining prior permission. 3. That defendant, R. E. Benson, kept no guards over said bombs and made no effort of any kind and took no precautions of any nature whatsoever, to keep his son from obtaining and exploding said bomb. 4. That David Benson, the son of defendant R. E. Benson, was exceedingly fond of exploding toys, as are all boys of his age, all of which defendant R. E. Benson well knew. 5. That defendant, R. E. Benson, knew that his son David was aware of the bombs being in said counter and well knew that his son was likely to obtain one from said counter and explode same within the vicinity of the store." I think that these allegations, added to the original petition, stated a cause of action against R. E. Benson. However, I do not think that the petition as amended set forth a cause of action against Milton Bradley Company, for the reason that it is not alleged that Milton Bradley Company knew or had reason to know or should have known the facts contained in the above amendment. Therefore, the violation of the city ordinance was not actionable negligence as to the injuries shown in this case. The injuries, under the allegations, were not the natural and probable consequences of Milton Bradley Company's violation of the ordinance. It is my opinion that the alleged negligence of Benson was a superseding cause of the injuries because it is not alleged, and cannot be held as a matter of law, that Milton Bradley Company, at the time of the sale of the bomb, should have realized that Benson would have acted as alleged in response to the situation produced by the sale, because it is not alleged, and cannot be held as a matter of law, that Milton Bradley Company would not regard the negligence of Benson as highly extraordinary; and because it is not alleged, and cannot be held as a matter of law, that the negligence of Benson was a normal response to the situation created by Milton Bradley Company's act, and that the negligent acts of Benson were not extraordinarily negligent. See 2 Restatement, Law of Torts, § 447. I think that the situation would be the same if it had been unlawful for Milton Bradley Company to sell pistols in the city and for Benson to possess them for sale and to sell them, and the child had taken one out and accidentally shot the plaintiff. There is no presumption that Benson would sell the bomb or a pistol to a child, or make it easy for a child to get possession of one. The alleged negligence of Benson alone is sufficient to insulate the negligence of Milton Bradley Company, assuming that the child is not a responsible agency or that his actions should have been anticipated. It will be noted that the violation of the sale-of-fireworks section of the city ordinance is not pleaded as an act of negligence of Benson. As to the violation of the ordinance, Benson is charged with violating it by permitting his son to explode the bomb in the city. The violation of the ordinance by Milton Bradley Company had no more causal connection with the injuries than would the violation of an ordinance against possessing the bombs by Benson have had with his liability for such injury as is here sued for.

I am authorized to state that MacIntyre, P. J., concurs in the foregoing dissent.