Parman v. Lemmon

• Decision Date: 06 March 1926
• Docket Number: 26,074
• Parties: EMERAE PARMAN, a Minor, by J. T. PARMAN, His Next Friend, Appellee, v. WILLIAM LEMMON, a Minor, by W. G. LEMMON, His Father and Natural Guardian, and W. G. LEMMON, Appellants
• Court: Kansas Supreme Court

244 P. 232

120 Kan. 370

EMERAE PARMAN, a Minor, by J. T. PARMAN, His Next Friend, Appellee, v. WILLIAM LEMMON, a Minor, by W. G. LEMMON, His Father and Natural Guardian, and W. G. LEMMON, Appellants

No. 26,074

Supreme Court of Kansas

March 6, 1926

Decided January, 1926.

Appeal from Chautauqua district court; GEORGE J. BENSON, judge. Opinion on rehearing reversing former

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

WEAPONS--Dangerous Weapons--Shotguns. In enacting chapter 105 of the Laws of 1883 (R. S. 38-701, 38-702) it was not the intention of the legislature that the words "other dangerous weapons," contained therein, should include shotguns.

Carl Ackerman, of Sedan, Frank Doster and J. E. Addington, both of Topeka, for the appellants.

C. W Spencer, of Sedan, and A. F. Sims, of Howard, for the appellee.

Hopkins J. Johnston, C. J., Harvey, J., dissenting.

OPINION OPINION ON REHEARING.

HOPKINS, J.:

This controversy involves a construction of the statute concerning dangerous weapons--whether shotguns come within its purview, and whether minors are prohibited from handling and using them. The case was submitted in July, 1925, and a decision, rendered in October following, holding that shotguns were within its purview and their use prohibited to minors. On application, a rehearing was granted and the case again argued.

The facts, briefly recited in the former opinion (Parmen v. Lemmon, 119 Kan. 323, 244 P. 227), were as follows:

"The action was one to recover damages for the loss of an eye. Plaintiff prevailed, and defendants appeal. Two boys, William Lemmon and Emerae Parman, went duck hunting, Sunday, October 8, 1922. William was past fourteen and Emerae sixteen. William fired at a hell-diver (dabchick or grebe) on a small pond. Some of the shot glanced on the water to where Emerae was standing, one striking him in one of his eyes, putting it out. Action was brought on behalf of the injured boy against William Lemmon for negligently inflicting the injury, and against W. G. Lemmon, his father, for negligently furnishing his minor son with a dangerous weapon, a shotgun. This was not William's first gun. His father had furnished him a .410 shotgun when he was ten years of age. Sometime before the injury complained of, he bought and gave his son the gun in question--a new twenty-gauge Winchester pump shotgun. William frequently took his father's car and his gun and took other boys on hunting trips, and had, on other occasions, taken plaintiff. On the day of the accident he took his father's car and his gun, drove down and got the plaintiff and the two went duck hunting. After killing some ducks on a pond they started around the pond in opposite directions to pick up the ducks they had killed, and when opposite each other across the pond, William fired at a hell-diver on the pond so directly in line with the plaintiff that several of the glancing shot hit the plaintiff. One put out his eye."

The plaintiff contends that the question whether or not shotguns are prohibited by the statute was not raised in the lower court, and is not reviewable here. While the question was not argued in the original briefs filed in this court, and while counsel for defendants on the first oral argument here urged other reasons for a reversal and conceded shotguns were within the purview of the statute, yet we find the defendant raised the question in the trial court. The record shows that defendant requested an instruction to the effect that a shotgun is not in itself a dangerous weapon and that the act of W. G. Lemmon in giving to his son William a shotgun did not constitute a violation of the statutes. The court refused such an instruction, but gave one, quoting the statute and telling the jury substantially that shotguns were within its purview. Other instructions were of the same tenor. The defendants moved for a new trial, assigning, among other things, as grounds therefor, "erroneous instructions given by the court," "refusal of the court to instruct the jury upon questions of law submitted by the defendant," and "refusal to give instructions requested by the defendant." From which it appears, beyond doubt, the question was raised in the trial court and is properly here for consideration.

The statutes involved, Laws 1883, ch. 105, reads:

"Any person who shall sell, trade, give, loan or otherwise furnish any pistol, revolver or toy pistol, by which cartridges...