# Kuhns v. Brugger > Supreme Court of Pennsylvania · October 7, 1957 · 390 Pa. 331 URL: https://www.frixlaw.com/law-library/cases/9715260 ## Case - **Full name:** Kuhns v. Brugger, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** October 7, 1957 - **Citations:** 390 Pa. 331; 135 A.2d 395; 68 A.L.R. 2d 761; 1957 Pa. LEXIS 290 - **Precedential status:** Published - **Opinion:** Dissent by Bell - **Judges:** Jones, Bell, Chidsey, Musmanno, Arnold, Cohen - **Cited by:** 132 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9715260 ## How later opinions describe it (automated extraction) - holding that the defendant was under a duty to keep his pistol away from his young grandchild - holding grandfather liable for injuries inflicted by twelve-year-old grandchild with a loaded gun found in an unlocked dresser drawer ## Opinion text Dissenting Opinion by Mr. Justice Bell : Plaintiffs sued young Brugger and subsequently amended their complaint to join his grandfather’s estate. The motion for judgment n.o.v. raises an important question: Did plaintiffs prove that George W. Bach, the deceased grandfather, was negligent in leaving a loaded revolver in the top bureau drawer of his bedroom, or, expressed another way, did plaintiff prove a want of due care under the circumstances of this case? Albert G. Kuhns, 12 years old, was wounded on July 23, 1953, by a bullet from a pistol discharged by his 12 year old cousin, George A. Brugger, while in the bedroom of their grandfather, George W. Bach, in his cottage in an isolated part of the country along the shores of Lake Erie, The boys were visiting their grandfather *358 as they had for several summers. * At the time of the actual shooting, the boys, a two year old sister, and a great-aunt were alone in the cottage. Brugger picked up and pointed at Kuhns a combination shotgun and rifle; fortunately the great-aunt of the boys entered the bedroom and ordered Brugger to put away the gun, which he did. He had been previously warned by his grandfather not to touch any gun. We note, parenthetically, but importantly, that the Commonwealth of Pennsylvania issues a hunting license to 12 year old boys to carry a loaded gun and go hunting if accompanied by an adult. Brugger later returned to his grandfather’s bedroom and found in the top left-hand bureau drawer a Colt automatic pistol which was loaded. ** Brugger then negligently or accidentally shot his cousin. Was the grandfather guilty of negligence; was he guilty of a lack of reasonable care when he, a very old man living alone in an isolated part of the country — where thefts and burglaries in neighboring estates were well known to Bach and the State Police-kept in his top bureau drawer a loaded pistol in order to protect himself from burglars, robbers and prowlers? A man’s home is no longer his castle, but until today it has been the home of himself and his family. Ever since early Biblical times, in nearly every civilized part of the globe, except recently in Communist countries, the “family” has been the most important and the most sacred thing in life except God. The family unit *359 or entity is created and revered, the family life and love are developed, preserved and solidified when children and grandchildren are allowed in every room of the ancestral home and are treated as one. Children and grandchildren who are forbidden to enter or are locked ont of the bedroom of their parents or grandparents Avill lose the comradeship, the trust, and part of the love they would otherAvise have for their parents and grandparents, just in an era when the home, the family life, family discipline, ties, comradeship and love, are so greatly needed in the world in which we live. These can only be produced by a family home which the majority, by their present opinion, are noAV gravely undermining and disrupting. Moreover, in order to accomplish this very regrettable result, the majority — notwithstanding the tremendous research and the excellent presentation of their vieAvs by Mr. Justice Benjamin R. Jones — -have had (1) to stretch and strain the measure or standard of due care, and (2) to candidly overrule a decision of this Court, namely, Fleming v. Kravitz, 260 Pa. 428 , 103 A. 831 , and a decision of the Superior Court of Pennsylvania, namely, Swanson v. Crandall, 2 Pa. Superior Ct. 85 , and (3) to equate a loaded gun lying along the path by an open road Avhile the owner went to his home to read the newspapers, A?ith a loaded pistol kept in the top bureau drawer of a bedroom in a man’s home to safeguard his life. The majority decision of necessity will require a parent and grandparent to keep under lock and key (and keep the key constantly in his or her pocket) every revolver, carving knife, butcher knife, and every possibly-dangerous household article, as well as every medicine closet, in order to be legally safe from suit by a member of the family or one of their young playmates. If, for example, a burglar or robber entered a *360 man’s home at night and he awoke, he would have to try to recall where he had hidden the key, get up in the dark, find it, unlock the drawer and finally get out the pistol, in order to defend himself or his property. By that time it would have been, in many instances, too late to defend himself or to capture the burglar. The present decision will also generate a tremendous number of law suits which will literally bankrupt young married couples who today have no maid or servant to aid them in tending- to the children, their home, the cooking, and everything connected with home life. A mother necessarily leaves carving knives, butcher knives and other similar articles attractive to young children on the kitchen table or around their home where the children and their young friends constantly play, while she finishes cooking the meat, arranges or waits on the table, or answers the telephone or the door. Inevitably a child will accidentally or negligently or unwittingly injure a playmate. The law has never heretofore imposed such an unreasonable, unwise, impractical and unsalutary standard of care on the owner of a home or the head of a family. Indeed, this Court has just handed down an opinion in Karen Parks v. Helen Parks, 390 Pa. 287 , 135 A. 2d 65 , in which it holds that it is against public policy to alloAV a minor child to sue a parent “for acts of negligence affecting the person” of the child. Why shouldn’t the same wise public policy apply to a grandfather, especially when the child Avas injured by a third person’s tortious act which was committed in the grandfather’s bedroom in' the family summer home? I would hold as a matter of law that, from a legal, practical, family and public-policy point of view, Bach was not guilty of negligence and I Avould enter a judgment n.o.v. as to the executor of the will of George W. Bach. *361 If a judgment n.o.v. is not entered as to Bach, it was not only a palpable, it was, for several reasons, a gross abuse of discretion not to grant a new trial: (1) Because plaintiffs’ counsel in his opening remarks to the jury, which he continually emphasized, by his examinations of prospective jurors on their voir dire, (and in his closing remarks to the jury) stated that “Bach was President of the American Sterilizer Company, Avhich probably is one of the largest manufacturers of sterilizers in the United States” thus inevitably influencing and prejudicing their minds with the wealth of the defendant; and (2) because of the memorandum as to damages improperly sent out to the jury; and (3) because of the trial Judge’s.failure to charge on the important issue of the plaintiff-parents’ contributory negligence; and (4) especially because the trial Judge’s refusal to sever the two actions. for trial made a fair trial for Bach a “practicad” impossibility. Why was a fair trial for Bach a “practical” impossibility? The evidence in the case which was admissible against Bach alone and all the reasonable inferences therefrom, amounted (at best for plaintiffs, according to the majority’s AdeAV of negligence), to slightly more than a scintilla. In spite of this the trial Court admitted, in this joint trial, evidence Avhich Avas admissible against Brugger but not against Bach; and this inadmissible evidence as to Bach was so much stronger than the scintilla of legally admissible evidence (against Bach) that it could not fail to prejudice the jurors against Bach, and could not possibly be eliminated from their minds when they came to decide Bach’s due care or want of due care. * *362 The majority say “When Kuhns’ and Brugger’s testimony were offered the Court very clearly instructed the jury that they were not to consider such testimony in determining the liability of the Bach Estate.” This is theoretically unobjectionable, but nearly every judge knows that in reality it is “impractical” and “impossible”. A familiar concrete example will more forcefully illustrate the majority’s unrealistic position. When a man is tried for murder, evidence of an entirely unrelated crime is admissible in order to aid the jury in determining, not his gmlt, but the penalty to be inflicted if their verdict is murder in the first degree. Every trial judge explains the limited purpose of such testimony; but nearly every trial and appellate court judge knows, and I venture to express my belief that every Judge in this Court believes that it is in reality impractical and impossible for the jury not to be influenced by such testimony in determining the guilt or *363 innocence of the defendant. ** If the evidence of an unrelated crime is, as we all believe, sufficient to influence and prejudice the jury in determining criminal liability, i.e., guilt or innocence of murder, isn’t it clear that this jury could not fail to be unconsciously but unjustly influenced and prejudiced against Bach by the direct and the relatively very strong testimony proving Brugger’s negligence and incidentally, even though inadmissible against Bach, Bach’s negligence (if the majority’s theory is adopted)! The majority’s refusal of a new trial is untenable. The majority say that if you eliminate the testimony of Kuhns and Brugger, the jury still had sufficient, although barely sufficient facts (and inferences therefrom) to justify a verdict of negligence against Bach. That would be the proper test in considering, not a new trial, but an n.o.v. Nevertheless, in sustaining the lower Court’s refusal of a new trial, the majority now unwittingly apply the legal test for an n.o.v. instead of the test for a new trial. The basic question on this point is not whether, eliminating the inadmissible testimony of Kuhns and Brugger, there was barely sufficient evidence to fasten negligence upon Bach — the question is whether, when you take a scintilla of evidence of negligence and pile upon it (relatively) strong and direct inadmissible evidence of (under the majority’s theory) negligence, you can justify a failure to grant a severance and a new trial by applying the test which is applicable only in questions involving n.o.v., namely, were there sufficient facts and inferences therefrom to justify a verdict? *364 The majority also cite the general rule (Rule 35) * that since the question of severance was not presented by appellants in the statement of questions involved, it should not be considered on this appeal. It was strongly urged at the trial and in the written motion and argument for a new trial., No objection to a consideration of this question was made in this Court (nor of course in the Court beloAv) by any of the parties. Moreover, it is the duty of this Court, which it has often followed, to render a decision in accordance Avith the merits and justice of the case: Act of May 20, 1891, §2, P. L. 101, 12 PS 1164; and “[where] there has been some basic or fundamental error seriously affecting the merits of the case and imperatively calling for reversal” we have never failed to grant a new trial, even if it involved disregarding a technical rule of Court or any other technicality: Commonwealth v. Schultz, 170 Pa. Superior Ct. 504, 512 , 87 A. 2d 69 ; Commonwealth v. Klick, 164 Pa. Superior Ct. 449, 453 , 65 A. 2d 440 ; Commonwealth v. Kahn, 116 Pa. Superior Ct. 28, 30 , 176 A. 242 ; Commonwealth v. Zang, 142 Pa. Superior Ct. 573, 577 , 16 A. 2d 745 . See also: Fries v. Ritter, 381 Pa. 470, 476 , 112 A. 2d 189 ; Downes v. Hodin, 377 Pa. 208 , 104 A. 2d 495 ; Falk & Co. v. South Texas Cotton Oil Co., 368 Pa. 199 , 82 A. 2d 27 . Two additional reasons make the granting of a new trial even more imperative. The memorandum as to liability and damages (for the parents, and for Albert for pain, suffering, humiliation and embarrassment, etc.) which the trial judge sent out to the jury, was, in my opinion, unfair and undoubtedly prejudicial. Furthermore, Kuhns’ father and mother recovered a verdict, in accordance with said memorandum, of over *365 $36,000 for expenses incurred to date of trial, expenses to be incurred until their boy arrived at the age of 21 years, and damages for loss of earning capacity, in spite of the fact that they could have been guilty of contributory negligence in failing to prohibit their son from entering or warning their son not to enter into his grandfather’s room in his absence or to touch his guns or pistol; and consequently would not be entitled to recover anything. * Yet neither in the charge of the Court, nor in the memorandum sent out by the judge to the jury was anything said (or written) to permit the jury to pass upon this important question of the parents’ contributory negligence. For the aforesaid reasons I would enter a judgment non obstante veredicto in favor of the Bach Estate. If a judgment n.o.v. is refused, I would grant a new trial in the interest of justice, because the dismissal of the motion for a new trial by the Court below constituted a palpable and gross abuse of discretion. Mr. Back’s daughters, the parents of the two minor children involved, had also visited Mr. Bach each summer and they undoubtedly knew, as did the boys, that he owned and kept various guns and other firearms in his bedroom in his one story cottage. It is clear from the law, as extended by the majority, that it would not have made any difference whether the pistol was loaded, or the cartridges were in a box near the pistol. A number of decisions of tbis Court would seem to bold that tbis evidence is inadmissible in a joint trial. The principle is thus summarized in the syllabus of McShain v. Indemnity Insurance Co., 338 Pa. 113 , 12 A. 2d 59 , “In a case involving co-parties, a *362 declaration normally admissible against one of - them should be excluded from evidence where the necessary result of its admission would be to prejudice the rights of the other co-party, against whom it is not admissible, even though the party offering it is thus precluded from the exercise of a right he would have had if the proceeding were against the declarant alone.” This principle is thus stated in a footnote in Bergen v. Lit Brothers, 354 Pa. 535, 539 , 47 A. 2d 671 , “So firm is this rule that, where there are two defendants on the record, and evidence, though properly admissible against one, is not admissible against the other and would serve greatly to prejudice the latter’s rights, it must not be admitted even though the plaintiff offering it is thus precluded from the exercise of a right he would have had if the’ proceeding had been only against the one defendant: McShain v. Indemnity Insurance Co. of North America, 338 Pa. 113, 119, 120 , 12 A. 2d 59, 61, 62 .” See to the same effect: Goodno v. Hotchkiss, 237 Fed. 686, 696 ; Windham v. Howell, 78 S. C. 187, 194, 195, 59 S. E. 852, 854, 855 ; Continental Insurance Co. v. Delpeuch, 82 Pa. 225, 233 ; Lacock v. Commonwealth, 99 Pa. 207 ; Dickinson College v. Church, 1 W. & S. 462, 465 . I venture the further belief that every member of this Court would like to see the Legislature change the rule so as to permit the introduction of evidence of an unrelated crime only when and after a jury has found a defendant guilty of murder in the first degree. “. . . ordinarily no point will be considered which is not thus set forth in or necessarily suggested by the statement of questions involved.” Today everyone is being held responsible for the acts or misconduct of minor children except their parents who, in many cases, are primarily, if not solely, to blame. I strongly disagree with this philosophy. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9715260. Public record. Not legal advice.