Edwards v. Johnson, 453

• Decision Date: 20 January 1967
• Docket Number: No. 453,453
• Court: North Carolina Supreme Court
• Parties: , 25 A.L.R.3d 502 Bill EDWARDS v. Louise G. JOHNSON.

Page 122

152 S.E.2d 122

269 N.C. 30, 25 A.L.R.3d 502

Bill EDWARDS v. Louise G. JOHNSON.

No. 453.

Supreme Court of North Carolina.

Jan. 20, 1967.

White, Crumpler, Powell & Pfefferkorn, Winston-Salem, for plaintiff appellant.

Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, by R. M. Stockton, Jr., and J. Robert Elster, Winston-Salem, for defendant appellee.

SHARP, Justice.

Plaintiff alleges that the injuries for which he seeks compensation were caused by the negligent manner in which defnendant handled a loaded shotgun. Defendant denies negligence and pleads contributory negligence.

In evaluating a motion for nonsuit, the evidence must be considered in the light most favorable to the plaintiff, who is entitled to every reasonable inference therefrom. 'The rule is sometimes stated conversely, with perhaps more pointed significance. Upon demurrer, the evidence must be taken most strongly against the defendant.' Fox v. Asheville Army Store, 215 N.C. 187, 190, 1 S.E.2d 550, 551.

Plaintiff's evidence is sufficient to justify the jury in making these findings: Plaintiff handled all insurance matters for defendant and her husband, transacting business with them at night at their home. He always came to the back door, and defendant had told him it was not necessary to telephone before coming. On the morning of September 28, 1964, defendant had telephoned plaintiff about an insurance problem, and he had agreed to stop by when he was in the vicinity. As a result of her call, plaintiff went to defendant's home that night at 9:30--as usual, without first telephoning. Plaintiff knew defendant's husband was away and that she was uneasy when she was alone in the house. When plaintiff Knocked at the kitchen door, according to his custom, defendant came to the door carrying a loaded and cocked shotgun with her right hand and arm. She turned on the back porch light and, as she was pushing back the curtains from the door, the barrel of the gun hit the door and went off, injuring plaintiff seriously and permanently. Although she told plaintiff she knew nothing about firearms, defendant was not unfamiliar with the shotgun. It belonged to her individually. She knew how to load it; she had loaded it when she heard plaintiff's knock at the door. With the hammer down, the gun would not fire; it had to be cocked first. Defendant was accustomed to handling the gun. She had told plaintiff that she kept it for her protection. He had seen it in her possession on prior occasions. Three weeks earlier, he had seen it on the kitchen table when he had knocked at the back door between 9:45 and 10:00 p.m. On that occasion, defendant had turned on the porch light, pulled back the curtain, and had then opened the door for him.

Upon this evidence, defendant contends that she is equally entitled to a judgment of nonsuit on the grounds (1) that the evidence fails to disclose any negligence on her part and (2) that it affirmatively discloses plaintiff's contributory negligence. Defendant argues in her brief that she, 'as most women under similar circumstances would be, was frightened and uneasy when at home alone at night in a neighborhood troubled with prowlers'; that plaintiff knew she kept a shotgun for her protection and that her husband was away; and that plaintiff's conduct 'in prowling around the back of the defendant's home in the middle of the night * * * and making noises at the kitchen door without any forewarning * * * constituted an emergency situation' which made defendant's response thereto foreseeable, reasonable, and prudent. She further asserts that 'fundamental in our law is the sanctity of one's home and the right to protect it.'

The right to defend one's home against forcible entry by an intruder is well settled in this State. A householder, however, may not intentionally shoot even a trespasser until he attempts to force an entry in a manner sufficient to lead a reasonably prudent person to believe that he intended to commit a felony or to inflict some serious personal injury upon the occupants of the house. State v. Miller, 267 N.C. 409, 148 S.E.2d 279. In other words, one may not shoot first and investigate later. 'There must be actual or apparent necessity to shoot; otherwise, shooting at a human being is unlawful.' State v. Phillips, 262 N.C. 723, 726, 138 S.E.2d 626, 628.

The evidence in this case does not invoke the right of a householder to defend his habitation for the reason that defendant did not intentionally shoot to repel an invasion of her home or an assault upon her person. She discharged the gun accidentally. Even if this had not been the case, however, she would not have been justified in shooting intentionally, for the person at the door had neither threatened nor attempted any violence. Until he had done so, she was not entitled to assume the worst--certainly not before she had inquired, 'Who's there?' Under the circumstances disclosed here, this simple inquiry usually would have been the first act of the average woman of ordinary firmness. Had defendant merely inquired who was at the door before she cocked the gun (an operation performed by the thumb in one second), and before she had turned on the porch light and attempted to pull back the curtain, this tragedy would have been averted.

In appraising both plaintiff's and defendant's actions, it must be remembered that this was not the first time plaintiff had come to defendant's back door at night, albeit her husband usually had been at home when he came. Plaintiff always did business with defendant and her husband in their home, usually at night and sometimes as late as 11:00. Furthermore, plaintiff always came to the back door--presumably because of the design of the driveway and parking area. On previous occasions, defendant had told him that it was not necessary to telephone before coming. In addition, she had called plaintiff that very day about an insurance matter, and he had told her that he would come by the first time he was in the vicinity. When the knock came that night at 9:30, she might reasonably have anticipated that it was plaintiff. It might also have been a neighbor, a visiting relative or friend, the paper boy collecting, or a distressed motorist seeking a telephone. It might have been any one of a number of persons on a lawful mission. The unknown person outside could, of course, have been a marauder, but until he had made some threat or attempt at a forcible entry, she was not justified in convicting him, nor was she relieved of her duty to exercise the utmost care to prevent the unintentional discharge of the gun.

It is settled law with us that the highest degree of care is exacted of those handling firearms. 'The utmost caution must be used in their care and custody, to the end that harm may not come to others from coming in contact with them. The degree of care must be commensurate with the dangerous character of the article.' Brittingham v. Stadiem, 151 N.C. 299, 302, 66 S.E. 128, 130. See Belk v. Boyce, 263 N.C. 24, 138 S.E.2d 789. 'The same degree of care is, no doubt, expressed by saying that the care which persons using firearms are bound to take in order to avoid injury to others is a care proportionate to the probability of injuries to others. * * *' 56 Am.Jur., Weapons and Firearms § 23 (1947). One who handles a loaded gun is charged with the knowledge that it is a dangerous instrumentality which, if accidentally discharged, might cause injury to others. Naegele v. Dollen, 158 Neb 373, 63 N.W.2d 165, 42 A.L.R.2d 1099. If one is injured from the discharge of firearms negligently used or handled by another, the person causing the injury is civilly liable even though the discharge was not intended. Skinner v. Ochiltree, 148 Fla. 705, 5 So.2d 605, 140 A.L.R. 410.

'Any loaded firearm * * * is a highly dangerous instrumentality and, since its possession or use is attended by extraordinary danger, any person having it in his possession or using it is bound to exercise extraordinary care. A person handling or carrying a loaded firearm in the immediate vicinity of others is liable for its discharge, even though the discharge is accidental and unintentional, provided it is not unavoidable.' Kuhns v. Brugger, 390 Pa. 331, 338, 135 A.2d 395, 400, 68 A.L.R.2d 761, 769.

As the Illinois court pointed out in Atchison v. Dullam, 16 Ill.App. 42, 46 (1884), 'Firearms are not usually discharged without the intervention of some human agency. A presumption, therefore * * * is raised that when such weapons are discharged while in the possession and control of another, the firing is caused either by design, carelessness, or inadvertence upon his part.' The opinion in Atchison quotes from Tally v. Ayres, 35 Tenn. 677, a case in which plaintiff's horse was killed when a gun discharged as defendant placed it upon his shoulder:

'(T)he very fact that the gun 'went off', under the circumstances detailed in the proof, implies, of necessity, some inadvertent act, or want of proper caution on the part of the defendant. The Lock must either have been defective, or some agency must have been exerted, unintentionally and perhaps unconsciously, by the defendant, otherwise the discharge of the gun could not have happened.' Id. at 681.

Certainly, we cannot say, as a matter of law, that an ordinary knock at the door at 9:30 p.m., without more, is calculated to create in a woman, situated as defendant, such a reasonable apprehension of serious and immediate danger that she might be expected to forget all the safety rules for handling a loaded gun, and that she may not, therefore, be held responsible if she permits the gun to discharge as she peers through the curtains to ascertain the identity of her caller. On the contrary, in the absence of any evidence of a mechanical defect in the gun, we think the fact that it did discharge under these circumstances is sufficient evidence to take the case to the jury on the issue of defendant's...