Appeal from the Circuit Court of Winnebago county; the Hon.
WILLIAM R. DUSHER, Judge, presiding. Reversed with judgment here.
PRESIDING JUSTICE SPIVEY DELIVERED THE OPINION OF THE COURT. Defendant Lamont Williams appeals from a judgment of the Circuit Court of Winnebago County, Illinois. Trial was had without a jury.
This cause of action was before the Second Division of this Court on the pleadings. Seaburg v. Williams, 16 Ill. App.2d 295, 148 N.E.2d 49.
The issue before the court on that appeal was whether a cause of action for a non-negligent tort or pure-tort may be maintained in Illinois against a minor of the age of six years or under. The court concluded that an allegation charging a minor then of the age of five years and eleven months with "tortiously and wrongfully set fire to plaintiff's said two-car garage causing said garage and above mentioned items of personal property therein contained to be totally burned and destroyed . . ." stated a legally sufficient cause of action. It was further stated in that opinion that unless the minor is not capable of possessing the intent to do the act which he is alleged to have done then the charge must be regarded as legally sufficient.
The court then went on to say, "Without presuming to know all of the capabilities or limitations of the mind of a six year old, nevertheless, we cannot say that a six year old child is incapable of intending to set fire to a building. Whether a six year old minor had such intent is a question of fact. . . ."
The opinion points out that no count of the complaint was based on negligence and nothing therein was said in that regard. We interpret the opinion to hold that a minor child of this age may be charged with and be liable for intentional or non-negligent conduct if the mental condition of the minor is sufficient to render him capable of intending to commit the act complained of, and that such capacity to intend to do the act is a question of fact.
This question of law having been decided on the prior appeal is conclusive and binding in subsequent proceedings in the court below and on this court. Crozier v. Freeman Coal Min. Co., 363 Ill. 362, 2 N.E.2d 293; People ex rel. Kastning v. Militzer, 301 Ill. 284, 133 N.E. 761; Meyer v. Meyer, 333 Ill. App. 450, 77 N.E.2d 556; Sacks v. American Bonding Co. of Baltimore, 348 Ill. App. 389 Abst., 108 N.E.2d 821; People ex rel. Powell v. Board of Education of Chicago, 348 Ill. App. 390 Abst., 108 N.E.2d 814.
Upon remandment to the lower court after hearing as aforesaid, the judgment was entered on Count I which alleged inter alia "On the date aforesaid, defendant tortiously and wrongfully set fire to plaintiff's two-car frame garage causing said garage and the above mentioned items of personal property therein contained to be totally burned and destroyed, except certain concrete portions of said garage building. . . ."
The trial court's judgment-order made the following findings of fact:
"That the defendant at the time of the occurrence in question was five years and eleven months of age;
"That the defendant did on the 13th day of January, 1956, intentionally set fire to a pile of newspapers in plaintiff's garage;
"That the defendant was guilty of negligence in igniting the papers in plaintiff's garage when he knew or in the exercise of ordinary care should have known that if he ignited the papers the damage to plaintiff's garage would probably result;
"That the negligence of defendant was the proximate cause of the damage to and destruction of the plaintiff's garage;
The pertinent facts as disclosed from the abstract of the evidence are that the defendant was on the date of the occurrence five years and eleven months of age. On two or three occasions while his mother was sick he had burned papers for her, which occasions were the only time he had ever used matches, that on a previous occasion he had seen a stack of papers in the plaintiff's garage, that on the occasion in question he thought he would help out Mr. Seaburg as he had his mother and burn the papers. He obtained the matches from the kitchen cupboard and lit the papers in the plaintiff's garage, and then left to play with his neighborhood friends. He was unaware that the garage had caught on fire until he heard a cracking noise, and then he went home and told his mother what had happened.
The defendant further testified, in answer to the question of what he thought might happen to Mr. Seaburg's garage if he set fire to the papers, "Well, I wasn't thinking about the garage at that time." He stated he had never seen a building burn down before that time, that when he lit the matches for the papers he did not think it might burn the garage down. ...