Williams v. Youngblood, D-271

• Decision Date: 25 April 1963
• Docket Number: No. D-271,D-271
• Citation: 152 So.2d 530
• Parties: Henry WILLIAMS, Appellant, v. Richard A. YOUNGBLOOD, individually, and John Stephen Youngblood, a minor, by his father and next friend, Richard A. Youngblood, Appellees.
• Court: Florida District Court of Appeals

Page 530

152 So.2d 530

Henry WILLIAMS, Appellant, v. Richard A. YOUNGBLOOD, individually, and John Stephen Youngblood, a minor, by his father and next friend, Richard A. Youngblood, Appellees.

No. D-271.

District Court of Appeal of Florida, First District.

April 25, 1963.

Will O. Murrell, Jacksonville, for appellant.

Ralph Roberts, Jacksonville, for appellees.

STURGIS, Judge.

Henry Williams, defendant below, appeals from a final judgment entered in a negligence action pursuant to verdict of the jury in favor of plaintiffs, Richard A. Youngblood and his minor son, John Stephen Youngblood.

The first count of the complaint, stating on behalf of John Stephen Youngblood, a minor, charged that defendant Henry Williams was the parent of Raymond Williams, a minor under the age of sixteen years, who was under the care, custody and supervision of said defendant; that 'contrary to the law and statutes of the state of Florida, to-wit: Chapter 790.22, Fla.Statutes Annotated', said defendant did carelessly, negligently and knowingly permit his said infant child to use a powerful BB gun, and that said use was 'not under the supervision and in the presence of an adult and at the time the said Raymond Williams lacked maturity, age, judgment and experience, and lacked the capacity to use the said dangerous BB gun properly, and that further the said Raymond Williams was an irresponsible infant'; that said infant 'did shoot Plaintiff, John Stephen Youngblood, in the eye with a projectile from the powerful BB gun'; and that as a direct and proximate result of 'the aforesaid negligence' of the defendant father the plaintiff minor lost his eye and suffered other personal injuries and damages as therein alleged.

The second count of the complaint, stating on behalf of the plaintiff father of the injured minor, realleged the above matters and further alleged that by reason of the premises he was deprived of the companionship and services of his son and 'did necessarily lay out and expend divers sums of money in and about endeavoring to have his said son cured of his aforesaid injury.'

Motion of the defendant to dismiss the complaint for failure to state a cause of action was denied.

Defendant filed an answer (1) denying the alleged negligence and (2) alleging contributory negligence on the part of the injured minor, John Stephen Youngblood.

Appellant challenges the judgment appealed on three grounds: (1) That the court erred in denying the motion to dismiss the complaint; (2) that the court erroneously charged the jury; and (3) that the evidence is insufficient to support the verdict. The judgment must be reversed because of the errors complained of under grounds (1) and (2), supra.

The theory of the case as stated by the complaint is that where a person suffers an injury from the discharge of a BB gun being used by or in the possession of a person under sixteen years of age, Section 790.22, Florida Statutes, F.S.A., imposes vicarious liability in tort upon the adult responsible for the welfare of such infant in those instances where the adult knowingly permitted the infant to use the BB gun or have it in his possession, regardless of negligence or lack of negligence in the use thereof. On that theory the trial judge charged the jury as follows:

'(1) The use for any purpose whatsoever of BB guns, air rifles, and 22-calibre rifles by any child under the age of sixteen years is prohibited unless such use is under the supervision and in the presence of an adult.

'(2) Any adult responsible for the welfare of any child under the age of sixteen years who knowingly permits such child to use or have in his possession any BB gun, air rifle, or 22-calibre rifle in violation of the provisions of subsection (1) of this section shall be subject to civil liability for any injury resulting as a natural and probable sequence of the violation of the statute.'

Appellant contends and we agree that the statute does not impose such vicarious liability under the facts of this case. We hold that the complaint herein did not state a cause of action because it failed to allege that the injury complained of proximately resulted from the negligent use of the BB gun in the possession of defendant's minor son, hence the motion to dismiss was improperly denied. The same error pervades the above quoted charge which, as we construe it, is tantamount to a directed verdict for the plaintiffs on the theory of vicarious liability of the defendant.

Appellee relies on the case of Tamiami Gun Shop v. Klein, 109 So.2d 189 (Fla.App., 1959), in which Wigginton, J., a judge of this court then sitting with the District Court of Appeal of Florida, Third District, wrote the opinion. Certiorari to review that decision was granted by the Supreme Court of Florida and the writ was discharged pursuant to an opinion written by Hobson, J. See Tamiami Gun Shop v. Klein, 116 So.2d 421 (Fla.1959).

At first blush it might seem that the rule in Tamiami Gun Shop is applicable to the case on review, but careful analysis reveals that this is not so. The statute there involved is Section 790.18, Florida Statutes, F.S.A., making it unlawful for any dealer in arms to sell to minors any repeating rifle or other weapon described therein. There was also an ordinance of the City of Miami making it unlawful for any person to sell a deadly weapon to any minor under seventeen years of age or to one between the ages of seventeen and twenty-one years without the express written approval of one of his parents or his legal guardian. The suit was by a minor against a dealer who contrary to the statute and ordinance sold the minor a prohibited firearm which was discharged while in his possession with resulting injuries to himself. The issue on the appeal in that case was whether the trial court erred in striking defendant's tendered defense of contributory negligence. The following excerpt from the opinion of...