On appeal from the Superior Court, Appellate Division, whose opinion is reported in 23 N.J. Super. 496.
For affirmance in part and reversal in part -- Chief Justice Vanderbilt, and Justices Heher, Oliphant and Burling. For reversal as to both respondents -- Justices Jacobs and Brennan. For affirmance as to both respondents -- Justice Wachenfeld. The opinion of the court was delivered by Burling, J.
This appeal calls for review of civil actions wherein the gravamen of the complaints sounds in tort. Louis Mazzilli (hereinafter adverted to as the plaintiff) appealed to the Superior Court, Appellate Division, from judgments of dismissal entered against him in the Hudson County Court in favor of the defendants Adam Selger and Frances Selger. The Appellate Division affirmed the judgments. Mazzilli v. Selger, 23 N.J. Super. 496 (1952). Certification was allowed by this court on the plaintiff's petition therefor. 11 N.J. 593 (1953).
The plaintiff sustained severe injury to his face and other portions of his body on April 21, 1949 as a result of the discharge of a single-barreled shotgun in his direction by Kenneth Selger, then of the age of nine years and ten months, the minor son of Adam and Frances Selger.
In order to obtain recompense for the damages occasioned by his injuries, the plaintiff instituted two civil actions in the Law Division of the Hudson County Court. In one he proceeded against Adam Selger (also adverted to in the pleadings as Adam Sulga) and his son, Kenneth, and in the other action he named as defendant the mother, Frances Selger (sometimes referred to in the pleadings as Frances Sulga). These two actions were consolidated for trial. At the conclusion of the introduction of evidence on the ensuing trial, the Hudson County Court, Law Division, on motions of the defendants Adam and Frances Selger, entered judgments of dismissal against the plaintiff and in favor of those defendants. The jury rendered a verdict for compensatory and punitive damages in favor of the plaintiff against the infant, Kenneth Selger, upon which judgment was entered in the County Court. The plaintiff appealed to the Superior Court, Appellate Division, from the judgments of dismissal. Kenneth Selger appealed to the Appellate Division from the "denial of his motion to dismiss the Third Count of the complaint" addressed to him (the said third count was a claim for punitive damages), but did not otherwise appeal from the judgment of the trial court. The Superior Court, Appellate Division, ordered these appeals consolidated (on consent of counsel for all the parties thereto). After hearing on the consolidated appeals the Appellate Division affirmed the three judgments in all respects. Mazzilli v. Selger, supra. The plaintiff thereupon petitioned for and was allowed certification to review the judgments of the Appellate Division entered in favor of the defendants Adam Selger and Frances Selger. 11 N.J. 593 (1953). The son Kenneth Selger neither appealed nor petitioned this court for certification to review the judgment of the Appellate Division in his case. The present appeal involves only the judgments in favor of the defendants Adam Selger and Frances Selger.
Counsel have framed several questions for consideration by this court on the present appeal. Generally speaking, the legal questions involved are: (1) What are the applicable
principles of law as to the nature and extent of duty of these parents to protect third persons from injury by their offspring? (2) What effect, if any, upon the performance of such duty, has the fact that the parents are living in separate residences and the infant is living with and is in the custody of one parent? The remaining questions relate to the factual aspects of the controversy calling for determination whether the trial court erred in dismissing the complaints against Adam Selger and Frances Selger, or either thereof.
As this court recently stated in Larocca v. American Chain and Cable Co., 13 N.J. 1, 5 (1953):
"The fundamental principles pertinent to this case are that negligence must be proved and will not be presumed; that while proof of certainty is not required, the evidence must be such as to justify an inference of probability as distinguished from the mere possibility of negligence on the part of the defendant; * * *."
And it is well settled that on a motion for judgment at the close of the reception of all the evidence the trial court cannot weigh the evidence but must accept as true all evidence which supports the view of the party against whom the motion is made and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor. See for example, Wilson v. Savino, 10 N.J. 11, 18 (1952); Vadurro v. Yellow Cab Co. of Camden, 6 N.J. 102, 106 (1950).
Firearms have been a subject of legislative control, which indicates a recognition of damage which may ensue from the use of a dangerous instrument, especially in incompetent or unqualified hands. For example, see N.J.S. Title 2 A, Administration of Civil and Criminal Justice, Subtitle 10, Crimes, Chapter 151, Weapons and Explosives, of ...