Palmer v. Decker

• Decision Date: 06 March 1970
• Docket Number: No. 370,370
• Citation: 20 Ind.Dec. 439,253 Ind. 593,255 N.E.2d 797
• Parties: John PALMER, Appellant, v. Jerry Michael DECKER, By A. Linden Decker, His Father and next friend, and A. Linden Decker, Individually, Appellees. S 50.
• Court: Indiana Supreme Court

Page 797

255 N.E.2d 797

253 Ind. 593

John PALMER, Appellant, v. Jerry Michael DECKER, By A. Linden Decker, His Father and next friend, and A. Linden Decker, Individually, Appellees.

No. 370 S 50.

Supreme Court of Indiana.

March 6, 1970.

Arthur A. May, Crumpacker, May, Levy & Searer, South Bend, for appellant

Benjamin Piser, Piser & Cox, South Bend, for appellees.

ON PETITION TO TRANSFER

DeBRULER, Judge.

This appeal was first made to the Indiana Appellate Court which rendered an opinion reported as Palmer v. Decker et al. (1968), Ind.App., 241 N.E.2d 381, reversing the judgment of the trial court and remanding the cause for a new trial. The appellee below has petitioned this Court for transfer, which petition is now granted and the opinion and order of the Appellate Court is now ordered vacated.

This cause was instituted in the St. Joseph Superior Court by the filing of a complaint entitled 'Complaint for Personal Injuries and Damages' alleging that the appellant had negligently caused appellee to lose the sight of his left eye due to an injury caused by a BB which had been fired from an air rifle by the appellant. The cause was tried by a jury which returned a verdict for the appellee in the sum of $25,000.00 and the appellee's parents in the sum of $2,000.00.

The appellant's first allegation of error is that the verdict of the jury was not sustained by sufficient evidence and was contrary to law and that the court erred in failing to direct a verdict at the conclusion of all of the evidence for the appellant. In reviewing the evidence, on appeal, we look to the evidence most favorable to the appellee to determine if there is substantial evidence of probative value or reasonable inferences therefrom to sustain the decision of the trial court. We will reverse the decision only if the evidence and reasonable inferences are undisputed, and could only lead to a decision contrary to the one arrived at by the jury. State Security Life Ins. Co. v. Kintner (1962), 243 Ind. 331, 185 N.E.2d 527; City of Whiting v. Grindle (1945), 115 Ind.App. 407, 59 N.E.2d 360.

There are no material contradictions in the evidence presented at the trial of this case. On July 30, 1963, John Palmer and Jerry Decker, both fourteen year old, went swimming together. They returned to their respective homes and agreed to meet later that same day to go to the woods and shoot Palmer's BB gun. When Decker arrived at the Palmer home he was told to enter by Mrs. Palmer who further told him that young Palmer was in his bedroom. Decker walked down the hallway and as he entered the open doorway was struck in the eye by a BB fired from Palmer's gun. At the time of the incident Palmer had been sitting on his bed with the BB gun on his lap. The doorway was to his right and slightly behind him. He testified that he was unaware that the gun was loaded or that it had been lever-cocked but that he was aware of the fact that he did not know whether or not the gun was loaded or lever-cocked. Although he was aware of the doorway in his room he did not realize the gun was pointed in the direction of the doorway nor was he aware of the presence of appellee Decker in the house. He testified that he was well trained and versed in the operation and safety of the gun. He pulled the hammer back and fired the gun, the pellet striking Decker in the eye as he entered the room.

Rhetorical Paragraph 7 of appellee's complaint contains the following allegations of negligence:

'7. The negligence of the defendant John Palmer consisted of the following acts:

'(a) Aiming and firing the rifle at a doorway through which he could have reasonably expected a person to appear.

'(b) Aiming and firing the rifle at the person of the plaintiff Jerry Michael Decker.

'(c) Aiming and firing the rifle in the general direction of the person of the plaintiff Jerry Michael Decker.'

Appellant contends that none of the facts support an essential element of appellee's case, namely, that the appellee 'intentionally aimed and fired said air rifle at or in the direction of the appellee or through the doorway through which the appellee could be expected to appear.' In support of his position that 'intent' is an essential element of appellee's cause of action, appellant cites the case of Dunkle v. State (1960), 241 Ind. 548, 173 N.E.2d 657. That was a criminal case wherein the defendant was charged in two counts. The first was that of drawing a dangerous weapon in violation of Ind. Acts of 1905, ch. 169, § 448, the same being Burns Ind.Stat.Ann. § 10--4707:

'Whoever draws, or threatens to use, any pistol, dirk, knife, slung-shot or other deadly or dangerous weapon, already drawn upon any other person, shall be deemed guilty of a misdemeanor * * *.'

The second charge was that of pointing or aiming a weapon in violation of Ind. Acts of 1905, ch. 169, § 452, the same being Burns Ind.Stat.Ann. § 10--4708:

'It shall be unlawful for any person over the age of ten years, with or without malice, purposely to point or aim any pistol, gun, revolver or other firearm, either loaded or empty, at or toward any other person; and any person so offending shall be deemed guilty of an unlawful act, and, on conviction, shall be fined not less than one dollar nor more than five hundred dollars.'

The appellant in Dunkle contended that he had been convicted twice for the same offense. He alleged that the two statutes in question had substantially the same meaning. The court in Dunkle held that to draw a weapon within the purview of Burns § 10--4707, supra, was a separate and distinct offense from that of pointing or aiming a weapon under Burns § 10--4708, supra. The court distinguished between the word 'draw' on one hand and the words 'point' or 'aim' on the other. In so doing the court by footnote accepted the following definition for the word 'aim':

'4. Aim. 'The pointing of a weapon, as a gun, a dart, or an arrow, at, or so as to bear upon, the object intended to be struck; the line of sighting; hence, the direction of anything, as a spear, a blow * * * toward a particular point or object, with a view to strike or affect it.' Webster's New International Dictionary, Second Edition.' 241 Ind. at 553, 173 N.E.2d at 659.

The appellant alleges that this Court thereby accepted as the proper definition of the word 'aim' the definition contained in the Dunkle case.

The Dunkle case stands for the proposition that a charge under Burns § 10--4708 using the word 'aim' in conjunction with the word 'purposely' clearly requires proof of the element of intent or intentional aiming. The case does not support appellant's contention that the use of the word 'aim' alone involves an element of intent. The statute (Burns § 10--4708) which makes unlawful the purposeful pointing or aiming of a weapon at another, modifies the word 'aim' with the word 'purposely'. If the word 'aim' alone connoted intent or purpose such modification would be redundant. In addition, the definition contained in the Dictionary indicates there is an equal and coordinate meaning of the word aim, namely, 'the line of sighting'. Therefore, this definition cited in the Dunkle case shows that the word aim can have more than one meaning. We believe a common usage of the term 'aim' connotes a 'pointing in the general direction of'.

In further support of his position that the term 'aim' includes an element of intent, appellant cites the case of Sutton v. Bonnett (1887), 114 Ind. 243, 16 N.E. 180. In that case three boys were out hunting together. One boy was accidently shot. The injured boy brought an action for his injuries against his companion who had accidentally discharged the weapon and wounded him. The complaint was based upon the violation of a statute which made it an actionable wrong for one to purposely point a pistol at another. The court in the Sutton case found that the jury was warranted in finding for the defendant where there was a failure to prove a purposeful shooting. Appellant cites the case for the proposition that he is entitled to a directed verdict for failure of appellee to give substantial proof of a 'purposeful' aiming and firing. However, in that case 'purposeful' was an element of the cause of action because such cause of action was based upon a statute which made a purposeful shooting a crime or actionable wrong. The court also said on this point: 'We agree with counsel for the appellant that a defendant who negligently shoots another is liable.' We think this language supports appellee's contention that a purposeful or intentional act is not necessary to prove an allegation that a plaintiff had been injured as a result of a negligent aiming and firing.

We hold that the evidence sufficiently proves that allegation of appellee's complaint that the appellant negligently aimed and fired the rifle at a doorway through which he could have reasonably expected a person to appear and warranted the verdict of the jury and the denial by the trial court of appellant's motion for a directed verdict. In effect, we hold that proof of a purposeful or intentional aiming of the gun was unnecessary to recovery by the appellee.

Appellant's second allegation of error is that the trial court erred in giving to the jury over objection of the appellant appellee's tendered Instruction #5. Said Instruction reads as follows:

'It is admitted as the plaintiff, Jerry Michael Decker, entered the room of the defendant, John Palmer, Jerry Michael Decker was struck in the left eye by a pellet or BB fired from the BB rifle of the defendant, John Palmer.

'If you find from a fair preponderance of the evidence that at the time of the use of the BB rifle by the defendant, John Palmer, on the occasion in question, John Palmer knew or, in the exercise of reasonable care, should have known, that his BB rifle was on safety before he fired...