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The California Legislature in Cal. Civil Code § 41 providing that a minor or person of unsound mind is civilly liable for wrongs done by him, and particularly by the qualification that he shall not be held for exemplary damages unless he was capable of knowing that the act was wrongful, indicates clearly that it intends that a minor or person of unsound mind should be liable in compensatory damages for his tortious conduct even though he was not capable of knowing the wrongful character of his act at the time that he committed it. A court is bound by this legislative declaration and taking it, and the state of the common law with relation to the liability of infants and persons of unsound mind of which it was intended as a codification, it is a court's duty to determine the legislative intent and to enforce it.
A seven-year old boy playing with his bow and arrow threatened a five-year-old girl, telling her that if she would not go away, he would shoot her. After the threat, he aimed his bow and arrow and shot at her, poking out her eye. The girl contended that the trial court committed reversible error by failing to grant her motion for a directed verdict against the boy on the theory that he was responsible for the tort committed by him even if he was not technically negligent.
Is a seven-year old boy who wilfully threatens another child with harm through the shooting of an arrow at or toward her, and who thereafter makes good the threat and, consequently, inflicts an assault and battery on the other child, responsible for the damage caused by him irrespective of whether or not he is guilty of technical negligence?
The court found that 1) the damage to the little girl was extensive and permanent; 2) the father had carefully instructed the boy with respect to the weapon; that most of the boys in the neighborhood, including two older sons of the defendant parents, had also used bows and arrows; 3) the boy had been friendly with the little neighborhood girl, and, for the most part, had played acceptably with other children in the area; however, 4) the boy intended to shoot at the girl and was thus responsible for damages. The court also concluded that defendant's counsel should not have been allowed to bring in many other toys during his closing that had not been admitted into evidence, using them as a diversionary exercise.