Walker v. National Gun Traders, Inc., 59-97

• Decision Date: 07 January 1960
• Docket Number: No. 59-97,59-97
• Citation: 116 So.2d 792
• Parties: Timothy WALKER, a minor, by and through his father and next friend, J. Marshall Walker, Jr., and J. Marshall Walker, Jr., individually, Appellants, v. NATIONAL GUN TRADERS, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 792

116 So.2d 792

Timothy WALKER, a minor, by and through his father and next friend, J. Marshall Walker, Jr., and J. Marshall Walker, Jr., individually, Appellants, v. NATIONAL GUN TRADERS, INC., a Florida corporation, Appellee.

No. 59-97.

District Court of Appeal of Florida, Third District.

Jan. 7, 1960.

Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell and Warren D. Hamann, Miami, for appellants.

Hill, Welsh, Cornell, Ross & Pyszka, Miami, for appellee.

PEARSON, Judge.

The appellants, who were plaintiffs below, appeal from a final judgment of dismissal entered upon motion directed to their amended complaint. The complaint sought to establish liability upon two separate theories. The first of these was upon an alleged warranty that a revolver sold by the defendant to one Alonzo O. Bliss Jr., was in good and useable condition. It is asserted therein that this revolver contained a latent defect in that a spur had been filed off the safety notch, and that because of the defect the revolver fired putting out the eye of the minor plaintiff. The second count alleges that the defect in the revolver was a latent defect which was not visible or apparent but which was known or should have been known to the defendant. It was further alleged that as a proximate result of the carelessness and negligence of the defendant in failing to properly inspect the weapon that the said minor plaintiff suffered the injury. We will discuss the second count first, because it is the one that we find stated a cause of action and upon which further proceedings must be had.

In Tampa Drug Co. v. Wait, Fla.1958, 103 So.2d 603, an award of damages was affirmed to a widow for the wrongful death of her husband in an action arising out of carbon tetrachloride poisoning. In that case the Supreme Court of Florida determined the extent of the duty of a distributor of an inherently dangerous commodity. Without repeating the reasoning of that opinion or the numerous authorities cited therein, it is sufficient to say that the court determined the proper measure of the duty of a distributor of an inherently dangerous commodity to be the reasonable foreseeability of injury that might result from the use of the commodity. It is further pointed out that when a distributor of an inherently dangerous commodity places it in the channels of trade, then by the very nature of the transaction, the distributor has the duty of providing to those who might use the product a fair and adequate warning of its dangerous potentiality. It follows that the distributor of an inherently dangerous product such as a second hand...