Tamiami Gun Shop v. Klein

• Decision Date: 16 December 1959
• Citation: 116 So.2d 421
• Parties: TAMIAMI GUN SHOP, a Florida corporation, Petitioner, v. Raymond KLEIN, a minor, by his father and next friend, Sidney B. Klein, and Sidney B. Klein, individually, Respondents.
• Court: Florida Supreme Court

Page 421

116 So.2d 421

TAMIAMI GUN SHOP, a Florida corporation, Petitioner, v. Raymond KLEIN, a minor, by his father and next friend, Sidney B. Klein, and Sidney B. Klein, individually, Respondents.

Supreme Court of Florida.

Dec. 16, 1959.

Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell and M. R. Adkins, Miami, for petitioner.

Dubbin, Schiff, Berkman & Dubbin and Phillip Goldman, Miami, for respondents.

HOBSON, Justice.

We granted a petition for writ of certiorari pursuant to Section 4, Article V, of the Constitution, F.S.A., to determine whether or not a decision of the District Court of Appeal, Third District, is in direct conflict with former decisions of this court. Petitioner directed our attention principally to the cases of Turner v. Seegar, 1942, 151 Fla. 643, 10 So.2d 320; Vandencar v. David, Fla.App.1957, 96 So.2d 227, 66 A.L.R.2d 912; and Deane v. Johnston, Fla.1958, 104 So.2d 3, 65 A.L.R.2d 957.

The facts of this case are relatively simple. This is a personal injury action in which the respondents sued the petitioner to recover damages caused when the respondent minor was injured by the discharge of the rifle sold to him by the petitioner. The petitioner sold a 30/30 magazine-fed, lever-action Winchester Model 94 rifle to the respondent, who was in fact on the date of purchase sixteen years, two months old. Prior to the time of purchase the petitioner asked the minor his age and received a reply from the respondent and his 'buddies' that he was over eighteen. The sale was consummated when the respondent traded his 'Mossberg' .22 for the 30/30.

The injury occurred on a return from target practice in the Everglades when the car in which the respondent was riding struck a severe bump in the road, and the rifle which the respondent was holding by the barrel discharged causing the loss of his thumb. Respondent's loss of the thumb on his right hand and the attendant disability naturally associated with such a loss were the only injuries sustained. The respondent admitted he knew the gun was loaded. There is considerable evidence of record that the respondent minor was well experienced in the handling of firearms.

The complaint sought to hold the petitioner liable on the ground that the sale to the respondent, an obvious minor, was negligence per se because it violated § 790.18, Florida Statutes, F.S.A., as well as Ordinance No. 5325 of the City of Miami. It was the respondent's contention that the violation of these penal laws was the sole proximate cause of the minor's injury. Said laws read as follows:

Section 790.18, Florida Statutes, F.S.A., reads:

'790.18 Selling arms to minors by dealers.--It is unlawful for any dealer in arms to sell to minors any pistol, springfield rifle or other repeating rifle, bowie knife or dirk knife, brass knuckles or sling shot, and every person violating this section shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of fifty dollars or by imprisonment in the county jail not more than six months.' (Emphasis supplied.)

The material portions of Ordinance No. 5325, City of Miami, read:

'Be It Ordained By The Commission of The City of Miami, Florida:

'Section 1. It shall hereafter be unlawful for any person to sell, barter, lend, give or deliver any pistol, dirk, or other deadly weapon to any minor under seventeen (17) years of age.

'Section 2. It shall hereafter be unlawful for any person to sell, barter, lend, give or deliver any pistol, dirk, or other deadly weapon to any minor between the ages of seventeen (17) and twenty-one (21) years of age without the express written approval of one of the parents of such a minor or legal guardian.' (Emphasis supplied.)

The petitioner's answer affirmatively alleged the injury was caused by the minor's contributory negligence. The lower court granted respondent's motion to strike petitioner's affirmative defense of contributory negligence. After receiving extensive depositions, the lower court also granted respondent's motion for final summary judgment on the question of liability.

After a trial on the question of damages, the jury granted damages to the respondent minor in the sum of $36,250, and to respondent minor's father in the sum of $2,500.

On appeal the District Court affirmed the lower court on the theory that the statute and city ordinance involved here were intended to protect the class of persons in which the plaintiff is included against the risk of the type of harm which did, in fact, occur. It was the court's opinion that an unexcused violation of said laws is negligence in itself and not merely evidence of negligence. As stated by the court, 'The effect of law is to stamp the defendant's conduct as negligence, with all of the effects of common law negligence.' The result of the adoption of such a rule of law was holding that the defense of contributory negligence was properly stricken as it was not available to the defendant under the circumstances presented in this case.

As we proceeded with our analysis of the problem herein involved, we became initially concerned with the possibility that the District Court's decision might also be in direct conflict with a long line of cases, culminating with Bryant v. City of Tampa, Fla.App.1958, 100 So.2d 665, in which the courts of this state have held that violation of a traffic law is merely prima facie evidence of negligence. ¹

Our research discloses that the almost universal American and English attitude is that where legislation prescribes a standard of conduct for the purpose of protecting life, limb, or property from a certain type of risk, and the harm to the interest sought to be protected comes about through breach of the standard from the risk sought to be obviated, then the statutory prescription of the standard will at least be considered in determining civil rights and liabilities. The authorities divide, however, on the effect to be given the statute. There are two main lines of decisions. Probably a majority of American courts have adopted the rule that the unexcused violation of such a...