McBerry v. Ivie, 42901

• Decision Date: 22 November 1967
• Docket Number: No. 2,No. 42901,42901,2
• Citation: 159 S.E.2d 108,116 Ga.App. 808
• Parties: C H. McBERRY et al. v. Ruth S. IVIE
• Court: Georgia Court of Appeals

Page 108

159 S.E.2d 108

116 Ga.App. 808

C H. McBERRY et al. v. Ruth S. IVIE.

No. 42901.

Court of Appeals of Georgia, Division No. 2.

Nov. 22, 1967.

Rehearing Denied Dec. 8, 1967.

Syllabus by the Court

The evidence was sufficient to support the verdict and judgment against a father and his son whose alleged joint and concurrent negligence was said to be the proximate cause of another's death. The negligence specified against the father was in giving a shotgun to his infant son and keeping it available for his use, without proper supervision as to his use of it. The negligence specified against the son, age 13, was in the manner in which he was handling the gun when it discharged and killed his companion.

Wallace, Wallace & Driebe, Charles J. Driebe, Albert Wallace, Jonesboro, for appellants.

Powell, Goldstein, Frazer & Murphy, Warner R. Wilson, Jr., Frank Love, Jr., Atlanta, for appellee.

PER CURIAM.

This appeal arises out of an action for damages for the negligent killing of the plaintiff's son, in which the verdict and judgment for $15,000 was awarded against the defendants. The petition alleges that the defendant Tommy McBerry and his father, C. H. McBerry, were jointly and concurrently negligent and that the negligence of each was the proximate cause of the death for which damages are sought. The negligence specified against C. H. McBerry, the father, was in making the shotgun available to his son at the time of his twelfth birthday and for approximately sixteen months thereafter without proper instruction or supervision as to its use. The negligence specified against Tommy McBerry, the son, was basicaly that of the manner in which he carried the shotgun.

Because the major premise raised by the enumeration of errors is that of insufficiency of the evidence, some detailed presentation of the evidence is necessary. It is important in considering the evidence in this case that the acts of negligence alleged against C. H. McBerry and those alleged against Tommy McBerry, his son, are completely different acts of negligence.

First, as to the evidence concerning the negligence specified against Tommy McBerry, the son: The evidence indicates that Tommy McBerry, age 13, and Wayne Ivie visited the farm of Tommy's grandparents, and that Tommy took his 20-gauge shotgun with him. This was a shotgun given him by his father. While the two boys were hunting and otherwise playing in the country near the grandparents' home, the gun, while in the possession of Tommy McBerry, discharged, striking and killing Wayne Ivie, his 13-year-old companion. The evidence shows the following in the questioning of Tommy McBerry: 'Q. Were you on your way to the house or away from the house? A. We were on our way back * * * Q. Were you looking for any particular type of game or targets or anything like that? A. I think we were looking for rabbits, I am not sure * * * Q. And did you also cock the hammer of the gun? A. I guess I did, I don't remember. Q. You don't remember? A. No, sir * * * Q. It was cocked though, just before it was fired and Wayne was hit? A. I don't know, it had to be, but I don't remember. Q. You don't remember when you cocked it, but you know that it had to have been cocked? A. Yes, sir * * * Q. So being held in the position that you described and while walking along, the gun discharged, is that right? A. Yes, sir, I stumbled. Q. You stumbled? A. Yes, sir. Q. On what? A. I think my foot or my bootlaces. Q. You had on boots that day? A. Yes, sir * * * Q. After you stumbled, did you catch your balance? A. Yes, sir. Q. When was the gun discharged? A. When I stumbled. Q. When you stumbled? A. Yes, sir. Q. And you never did fall down? A. No, sir.'

The evidence further shows without conflict that while the two boys were out in the fields the deceased Wayne Ivie at the particular time of the occurrence was walking in front of Tommy McBerry who was carrying the shotgun, and during the time they were walking the defendant Tommy McBerry stumbled, causing the shotgun to discharge into the back of the deceased Wayne Ivie, causing his death.

The cause of action against the father is that of negligence in furnishing or making available to the 13-year-old boy this shotgun which was a dangerous instrument without proper instruction and supervision as to its use. In that regard the evidence shows on cross examination of Mr. McBerry: 'Q. Now Mr. McBerry, of course you know Tommy's birthday? A. Yes, sir, July 31st, 1949. Q. So July 31st 1962, he would have been 13 years old? A. Yes, sir. Q. But you had given him the shotgun when he was 12? A. I did, in 1961. Q. Now, you gave him the shotgun, where was the shotgun kept? A. In the closet in the bedroom. Q. Same as yours? A. Yes, sir * * * Q. And you gave him his own shotgun on his birthday in 1961? A. In '61 when he was 12 years old * * * Q. You left the gun there unloaded in the closet? A. That's true, unloaded. Q. It was unloaded? A. Yes, sir. Q. And the ammunition was there? A. All the ammunition was kept on the shelf. Q. It was there? A. Yes, sir, it was there. Q. You had to reach up on the shelf to get it? A. Yes, you would have to climb up there, climb up on a chair to get it, you couldn't reach it.' The boy, Tommy McBerry, testified as follows: 'Q. Now, do you own or have you the use of a weapon, a shotgun more specifically? A. Yes, sir. Q. What sort of shotgun is it, Tommy? A. A 20 gauge shotgun. Q. And is it your own personal shotgun, that is to say, has it been in the family for a long time or was it given to you? A. It was given to me. Q. Do you remember when and under what circumstances it way given to you? A. I think it was on my birthday.' And further, in talking about the boys in their activities at the grandparents' farm: 'Q. Was that shotgun already there or did you take it with you? A. I took it with me * * * Q. You have or did you have shells for the shotgun? A. Yes, sir. Q. Where did you get the shells? A. I am not sure. Q. You are not sure where you got the shells? A. No, sir. Q. Were they already at home, or did you have a supply at home? A. Yes, sir, I think so, I am not sure. Q. Do you ever recall buying shells for the gun from the hardware store or any place like that? A. No, sir. Q. Then all the shells that you have used has been bought for you? A. Yes, sir. Q. Who normally bought the shells for this particular gun? A. Either my father or my uncle, I think it was my uncle. * * * Q. The day you, Tommy, and Wayne went to your grandmother's house, do you remember where you actually got the ammunition? A. Yes, sir. Q. Where did you get it? A. I think it was some my uncle gave me. Q. When did he give it to you? A. I don't know sir. Q. Where did you get it that particular day? A. At home. Q. At home? A. Yes, sir. Q. In the closet? A. I think so, I am not sure. Q. Where the gun is normally kept? A. I think so, I am not sure. Q. That is your father's closet, isn't that right. A. Yes, sir.'

Mrs. T. S. Wallace, grandmother of Tommy McBerry, on whose farm the incident happened, testified on cross examination that Tommy had been at her home a great many times with a shotgun, that he brought the shotgun down there whenever he wanted to, that he shot it at targets and so forth down in the woods, that the children would camp out at night and she did not know what they were shooting at.

While it is not negligence per se for a father to permit his son to have and use firearms (39 Am.Jur. 693, Parent & Child, § 56), the circumstances of this case as disclosed by the evidence would authorize the...