Acosta v. Daughtry, 71-786

• Decision Date: 19 September 1972
• Docket Number: No. 71-786,71-786
• Citation: 268 So.2d 416
• Parties: Angel ACOSTA, a minor, by and through his mother and next friend, Gloria Acosta, and Gloria Acosta, individually, Appellants, v. Frank Logan DAUGHTRY and Larry Daughtry, Appellees.
• Court: Florida District Court of Appeals

Page 416

268 So.2d 416

Angel ACOSTA, a minor, by and through his mother and next friend, Gloria Acosta, and Gloria Acosta, individually, Appellants, v. Frank Logan DAUGHTRY and Larry Daughtry, Appellees.

No. 71-786.

District Court of Appeal of Florida, Third District.

Sept. 19, 1972.

Rehearing Denied Nov. 28, 1972.

Horton, Schwartz & Perse, Dunn & Johnson, Miami, for appellants.

Carey, Dwyer, Austin, Cole & Selwood, and Steven R. Berger, Miami, for appellees.

Before PEARSON and CHARLES CARROLL, JJ., and HOWELL, CHARLES COOK, Jr., Associate Judge.

CHARLES COOK HOWELL, Jr., Associate Judge.

In this case, brought by Angel Acosta, a minor, by and through his mother and next friend, Gloria Acosta, and Gloria Acosta, individually, against his almost equally youthful friend, Larry Daughtry, and the latter's father, Frank Logan Daughtry, to recover for personal injuries sustained by Angel Acosta when a revolver in the hands of Larry Daughtry discharged, the bullet striking Angel in the right chest, we hold, following a jury verdict and judgment for the defendants below, and a consequent appeal here by the plaintiffs, that, under the peculiar facts now to be related,

1. There was no submissible evidence of contributory negligence to go to the jury;

2. Assuming, arguendo, that there was, Larry Daughtry's acts were so flagrantly negligent or willful or wanton in nature as to deprive defendants of a contributory negligence defense;

3. A fortiori, assumption of risk was inapplicable;

4. Plaintiffs' motion for a directed verdict on the issue of liability should therefore have been granted as to defendant Larry Daughtry; but

5. It was entirely proper to grant defendant Frank Logan Daughtry's motion for a directed verdict at the close of the plaintiffs' case ¹.

Basic Facts

Between 5:00 and 6:00 o'clock P.M. on the early winter afternoon of December 6, 1968, Angel Acosta, age 16, was in a room in the home of Larry Daughtry, age 20. Both youths were well acquainted with many makes of firearms, including handguns. They were quite familiar with their mechanical operation and experienced in their use. Construing (as we shall, throughout, save on the issue of the father's exculpation) the evidence most favorably to the defendants, Frank Logan Daughtry, Larry's father, had entrusted the .38 caliber, 5 shot revolver in question to his son to see if Larry could restore it to completely efficient working order. Angel was not averse to, as a matter of fact did, assist in these endeavors. It seems that 'you couldn't cock it all the way so you couldn't pull the trigger . . .. You couldn't cock it. It wouldn't cock. It would jam up.' Accordingly Angel removed the gun from its repository drawer and extracted, in Larry's presence, all 5 cartridges from the cylinder. He 'strapped it on his hip, trying it on'; although never, at no time, was there any horseplay by either boy with the gun. While Larry was briefly in an adjoining room preparing to take a shower, Angel 'pulled the hammer and released the trigger . . . it worked properly . . . 3 times.' Still, Angel had his misgivings. He 'thought something was wrong with the back plate'. During the brief interval Larry was absent from the room Angel reloaded the weapon. He did not tell young Daughtry, when Daughtry reentered the room, that he had done this. He did say, however, 'I told him I didn't fix it.'

So what did Larry Daughtry do?

He picked up the gun and, while it was pointing directly at Acosta, pulled the trigger.

Acosta, feeling 'like a big electric shock' called upon his Maker, and Larry Daughtry 'comes over to me and eases me to the floor . . . I was coughing up, you know, to my throat the blood, you know.'

No Contributory Evidence

It is difficult to gather from this entire record enough evidence to say that six reasonable men and women of a jury could yet find that Angel Acosta was guilty of negligence contributing to the foregoing catastrophe.

It is true that on page 123 of the transcript of the trial proceedings Acosta concedes that he was 'well aware of the dangers of guns and how to handle them and how you should always advise people whether they are loaded or unloaded.' Granted. It is also true that Daughtry had not witnessed the reloading of the weapon and thought, therefore, that it was still empty. True, again, that Acosta did not explicitly inform Daughtry on the point.

But wherein a proximate cause of Acosta's injury that Acosta did not convey this warning to Daughtry, himself wise in the ways of handguns; himself perfectly aware that Acosta had not told him, one way or the other, 'whether (this particular pistol was) loaded or unloaded'; and himself choosing to act quite independently of Acosta?

And what of the doctrine of foreseeability; as essential an ingredient of contributory negligence as of negligence? These boys had carefully abstained from flippant and indifferent treatment of the gun before its ultimate and unfortunate discharge. Daughtry had not even pointed it at Acosta before this took place; much less cocked the hammer and pulled the trigger while such a hypothetical pointing was taking place. Should Acosta have realized that if he did not specifically tell Daughtry the five bullets had been put back into the cylinder, Daughtry would not only point the gun directly at Acosta, but, what is more awful, would cock its hammer and pull the trigger while the muzzle was aimed at his friend? ²

This was developed on the cross-examination of the plaintiff.

In short, the position of Acosta falls squarely within the protective aegis of this Court's philosophy in Shapiro v. F. W. Woolworth, Fla.App. 3, 1960, 120 So.2d 806, 807: 'The pleadings and deposition do not suggest that the plaintiff should have suspected the existence of a dangerous condition, and in the absence of such showing, it would not necessarily constitute contributory negligence to fail to look out for danger when there was no reason to apprehend any'. The Supreme Court itself, in Southern Express Co. v. Williamson, 66 Fla. 286, 63 So. 433, 437, 1913, said without qualification that 'it is Not contributory negligence to fail to look out for danger when there is no reason to apprehend any.' (Emphasis, throughout, supplied.) Add to the foregoing the circumstance that in Acosta's particular situation 'the question is whether one should be aware of the danger. This depends largely upon the likelihood of encountering danger . . . One need not look for danger unless there is reason to expect it.' Maas Bros., Inc. v. Bishop et al., Fla.App. 2, 1967, 204 So.2d 16, 20. The trenchant phraseology of Beikirch et vir. v. City of Jacksonville Beach, Fla.App. 1, 1964, 159 So.2d 898, 902, is: 'Apart from the application of these three rules, another well-recognized doctrine alone precludes the entry of a summary judgment on the ground of contributory negligence--the doctrine that the knowledge of an injured party concerning the condition that gave rise to his injury does not bar his recovery in a negligence action unless he had knowledge that the condition was dangerous--That is, that it posed a danger to him. See, for instance, Bartholf v. Baker, Fla., 71 So.2d 480 (1954), in which the Supreme Court of Florida held that 'appreciation of the danger' is essential to the defense of contributory negligence, 'as is knowledge of the condition which creates the peril.'"

Then too: Added to the unreasonableness of requiring Acosta to foresee the strange actions of his friend was the freezing, paralyzing, effect of the shortness of time available to him to fully comprehend what was about to take place and remove himself out of the line of fire or shout a prohibitory warning to Daughtry. Only one shot was fired. Recalls Acosta, 'I was reading the newspaper in the corner of the room and he pulled the hammer and it must have

slipped or something because he caught me in the chest.' Contributory Negligence Unavailable in the Face of Willful Negligence

But let's assume that somewhere, under some construction, in the light of a possible but presently undisclosed argument, there lurks a legitimate shadow of contributory negligence over the plaintiff's case and conduct. Would it be available to the Daughtrys in the case sub judice, after the manner in which Daughtry the son caused this injury?

As already once observed, he did not himself, before firing it, examine the revolver to see if perchance it were reloaded. He did not himself ask Angel Acosta if Angel had put the bullets back in before handing the gun to Larry Daughtry. He obviously did not look to see where the revolver was pointing before he discharged it; or, looking, did not easily turn the muzzle from Acosta's chest before pulling the trigger. He did not himself cry out to Angel some such suggestion as, 'Watch yourself$ I'm going to test this$' ³

No.

'Q. What did you do?

'A. I was looking at the gun prior to the accident; I had it pointed up in the air like this (indicating) and I brought it across the front of him and I cocked it and fired it. That's when it discharged . . . I had it up in the air And I brought it in front of Angel and cocked it and pulled the trigger!' (77-78, 89)

As far as we have been able to ascertain our Supreme Court has never departed from the ruling initially laid down so long ago (1892) in Florida So. Ry. Co. v. Hirst, 30 Fla. 1, 11 So. 506, 513: '. . . we have not lost sight of the fact that when the defendant has inflicted the injury intentionally, or when he has done so unintentionally, yet his conduct, though still within the domain of negligence, has been wanton or reckless of its injurious consequences, or, in other words, he has been guilty of what is now called, it may be inaptly, 'willful negligence', the contributory negligence of the plaintiff is not a defense.' Much more modernly the Supreme Court, in Deane v. Johnston, Fla., 1958, 104 So.2d 3, 9, has re-affirmed 'that contributory negligence commonly does...