Everett v. Carter

• Decision Date: 20 June 1986
• Docket Number: No. 85-1155,85-1155
• Citation: 11 Fla. L. Weekly 1396,490 So.2d 193
• Parties: 11 Fla. L. Weekly 1396 Diane EVERETT, as Personal Representative of the Estate of Wayne D. Everett, Appellant, v. John Wade CARTER; June Carter; Lynn Alaire Carter; Amos Gunn d/b/a Uncle Sam's Gun Shop and Pawn Shop; Thomas Labarbera and Sandra Jones d/b/a The Character Cage, Appellees.
• Court: Florida District Court of Appeals

Page 193

490 So.2d 193

11 Fla. L. Weekly 1396

Diane EVERETT, as Personal Representative of the Estate of Wayne D. Everett, Appellant, v. John Wade CARTER; June Carter; Lynn Alaire Carter; Amos Gunn d/b/a Uncle Sam's Gun Shop and Pawn Shop; Thomas Labarbera and Sandra Jones d/b/a The Character Cage, Appellees.

No. 85-1155.

District Court of Appeal of Florida Second District.

June 20, 1986.

Henry T. Courtney of Law Offices of Henry T. Courtney, and Patrice A. Talisman of Daniels & Hicks, P.A., Miami, for appellant.

Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellee Amos Gunn.

CAMPBELL, Judge.

Appellant, Diane Everett, as personal representative of the estate of Wayne D. Everett, appeals a final summary judgment in favor of appellee, Amos Gunn, d/b/a Uncle Sam's Gun Shop and Pawn Shop, in this wrongful death action. Finding that the trial court was correct in granting a summary judgment below, but for the wrong reasons, we affirm.

A proper ruling, even if based on the wrong reason, should be affirmed. Stuart v. State, 360 So.2d 406 (Fla.1978); Congregation Temple De Hirsch v. Aronson, 128 So.2d 585 (Fla.1961); Jaffe v. Endure-A-Life Time Awning Sales, 98 So.2d 77 (Fla.1957); U.S. Home Corporation v. Suncoast Utilities, Inc., 454 So.2d 601 (Fla. 2d DCA 1984); Moudy v. Southland Distributing Company of St. Petersburg, Inc., 452 So.2d 1045 (Fla. 2d DCA 1984).

The undisputed facts giving rise to this appeal are as follows. On February 7, 1983, John Wade Carter, age nineteen, went to Uncle Sam's Gun Shop, which was owned and operated by Amos Gunn, appellee. Carter found a .44 magnum Ruger revolver at the gun shop which he liked, but was unable to purchase because he was under twenty-one years of age. A federally licensed firearm dealer is prohibited from selling or delivering any firearm other than a shotgun or a rifle to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age. 18 U.S.C. § 922(b)(1) (1976). Appellee Gunn was aware that Carter was under twenty-one years of age. Carter, however, placed a $20 deposit on the revolver and informed appellee Gunn that he would have his mother come in and buy it for him. The next day, Carter's twenty-eight-year-old sister, Lynn Elaine Carter, who was visiting the family home, went to the gun shop with Carter to purchase the revolver. She filled out the necessary forms and signed her name for the purchase. The gun was then delivered directly from appellee Gunn to Carter. It is undisputed that appellee Gunn knew he was delivering the revolver to Carter.

Six weeks later on March 24, 1983, appellant's husband, Wayne D. Everett, was shot by Carter, who used the .44 magnum revolver which had been purchased from appellee Gunn. Carter was convicted of second degree murder concerning the death of Mr. Everett, and his sentence in that case was affirmed by this court in the case of Carter v. State, 464 So.2d 172 (Fla. 2d DCA), aff'd, 479 So.2d 117 (Fla.1985).

Appellant's cause of action against appellee Gunn is based upon a negligence per se theory growing out of appellee Gunn's unquestionable violation of section 922(b)(1). The trial court granted summary judgment for appellee Gunn, concluding that the legislative history of section 922 did not prohibit sales to family members over the age of twenty-one, even though the purpose of the sale might be to supply the gun to a family member under the age of twenty-one. Thus, the trial court held that section 922 was not violated and, therefore, appellee Gunn's actions could not constitute negligence per se. We are unable to agree with that conclusion because section 922(b)(1) clearly prohibits the delivery, as well as the sale, of a firearm to anyone less than twenty-one years of age. In the instant case, there was no question that the delivery was made to Carter who was nineteen years of age.

It appears to us, however, that there exists an anomaly in the law in the State of Florida with respect to the sale and possession of firearms other than rifles or shotguns as a result of the irreconcilable provisions of Florida and federal law. While it is a violation of section 922(b)(1) to sell or deliver a firearm other than a shotgun or a rifle to any individual under twenty-one years of age, it is neither a violation of federal law nor Florida law for anyone over the age of eighteen to possess such a firearm. Thus, while Carter was prohibited from purchasing a firearm under the federal firearm act, section 922, it was perfectly lawful for him to possess and own such a firearm. Therefore, we conclude that Carter's commission of a criminal act six weeks after the purchase and delivery of the firearm could not have been proximately caused by the delivery of the firearm in violation of section 922(b)(1). See Stanage v. Bilbo...