McBerry v. IvieMcBerry v. Ivie
This appeal arises out of an action for damages for the negligent killing of the plaintiff’s son, in which the verdict and judgment for $15,000 was awarded against the defendants. The petition alleges that the defendant Tommy McBerry and his father, C. H. McBerry, were jointly and concurrently negligent
Because the major premise raised by the enumeration of errors is that of insufficiency of the evidence, some detailed presentation of the evidence is necessary. It is important in considering the evidence in this case that the acts of negligence alleged against C. Ef. McBerry and those alleged against Tommy McBerry, his son, are completely different acts of negligence.
First, as to the evidence concerning the negligence specified against Tommy McBerry, the son: The evidence indicates that Tommy McBerry, age 13, and Wayne Ivie visited the farm of Tommy’s grandparents, and that Tommy, took his 20-gauge shot» gun with him. This was a shotgun given him by his father. While the two boys were hunting and otherwise playing in the country near the grandparents’ home, the gun, while in the possession of Tommy McBerry; discharged, striking and killing Wayne Ivie, his 13-year-old companion. The evidence shows the following in the questioning of Tommy McBerry: “Q. Weje you on your way to the house or away from the house? A. We were on our way back. . . Q. .Were you looking for any particular type of game or targets or anything like that? A. I think we were looking for rabbits, I am not sure. . . Q. And did you also cock the hammer of the gun? A. I guess I did, I don’t remember. Q. You don’t remember? A. • No, sir. . . Q. It was cocked though, just before it was fired and Wayne was hit? A. I don’t know, it had to be, but I don’t remember. Q. You don’t remember when you cocked it, but you know that it had to have been cocked? A. Yes, sir. . . Q. So being held in the position that you described and while walking along, the gun discharged, is that right? A. Yes, sir, I stumbled. Q. You stumbled? A. Yes, sir. Q. On what? A. I think my foot or my bootlaces. Q. You had on boots that day? A. Yes, sir.
The evidence further shows without conflict that while the two boys were out in the fields the deceased Wayne Ivie at the particular time of the occurrence was walking in front of Tommy McBerry who was carrying the shotgun, and during the time they were walking the defendant Tommy McBerry stumbled, causing the shotgun to discharge into the back of the deceased Wayne Ivie, causing his death.
The cause of action against the father is that of negligence in furnishing or making available to the 13-year-old boy this shotgun which was a dangerous instrument without proper instruction and supervision as to its use. In that regard the evidence shows on cross examination of Mr. McBerry: “Q. Now Mr. McBerry, of course you know Tommy’s birthday? A. Yes, sir, July 31st, 1949. Q. So July 31st, 1962, he would have been 13 years old? A. Yes, sir. Q. But you had given him the shotgun when he was 12? A. I did, in 1961. Q. Now, you gave him the shotgun, where was the shotgun kept? A. In the closet in the bedroom. Q. Same as yours? A. Yes, sir. . . Q. And you gave him his own shotgun on his birthday in 1961? A. In ’61 when he was 12 years old. . . Q. You left the gun there unloaded in the closet? A. That’s true, unloaded. Q. It was unloaded? A. Yes, sir. Q. And the ammunition was there? A. All the ammunition was kept on the shelf. Q. It was there? A. Yes, sir, it was there. Q. You had to reach up on the shelf to get it? A. Yes, you would have to climb up there, climb up on a chair to get it, you couldn’t reach it.” The boy, Tommy McBerry, testified as follows: “Q. Now, do you own or have you the use of a weapon, a shotgun more specifically? A. Yes, sir. Q. What sort of shotgun is it, Tommy? A. A 20-gauge shotgun. Q. And is it your own personal shotgun, that is to say, has it been in the family for a long time or was it given to you? A. It was given to me. Q. Do you remember when and under what circumstances it was given to you? A. I think it was on my birthday.” And further, in talking about the boys in their
Mrs. T. S. Wallace, grandmother of Tommy McBerry, on whose farm the incident happened, testified on cross examination that Tommy had been at her home a great many times with a shotgun, that he brought the shotgun down there whenever he wanted to, that he shot it at targets and so forth down in the woods, that the children would camp out at night and she did not know what they were shooting at.
While it is not negligence per se for a father to permit his son to have and use firearms (39 AmJur 693, Parent & Child, § 56), the circumstances of this case as disclosed by the evidence would authorize the jury to find that he had not afforded supervision of the use of the gun by his son contemplated by law as being sufficient to relieve him of a charge of negligence in that respect. There was evidence authorizing a finding of negligence against the son. Therefore, the court did not err in overruling: the defendants’ motions for judgment notwithstanding the verdict and motions to set aside the verdict and judgment.
The defendants have also enumerated as error the refusal of the trial court to charge three requests.
The first request asked the court to charge that if the jury found that defendant Tommy McBerry was not negligent in any of the particulars alleged, then they should end deliberations and return a verdict in favor of both defendants. The third request asked an instruction to the effect that unless C. H. McBerry’s negligence combined with the negligence of Tommy McBerry to proximately cause the decedent’s death, then a verdict should be returned in C. H. McBerry’s favor. These requests were properly refused. Under the law, there may be a recovery against either or both of the responsible parties where their separate and independent acts concur to produce a single injury, despite the fact that the injury may not have happened had only one of the acts of negligence occurred, and despite the fact that the duty owed by each defendant may not be the same.
Scearce v. Mayor
&c.
of Gainesville,
The second request was for an instruction on the doctrine of intervening cause. More specifically it requested that the jury be instructed that they must find for defendant C. H. McBerry if they should find that defendant Tommy McBerry carried the gun with the permission of some adult other than C. H. McBerry, and that the negligence of such other adult combined with the negligence of Tommy McBerry was the sole proximate cause of the death of Wayne Ivie. This instruction was intended, apparently, to have the jury consider whether Clifford Wallace, Tommy McBerry’s uncle, who brought the boys to the farm and had knowledge of the gun and, further, who might have forbidden its use or at least gone with the boys, was negligent in not doing so, and thus became an intervening cause. A charge on intervening cause specifically involving Clifford Wallace was in fact given by the court. Where the principle of a requested charge is substantially given, albeit in different language, there is no error.
Carnes v. State,
The defendants also enumerated as error the trial court’s allowing plaintiff’s witness, Dorothy Ledbetter, to testify over objection as to a prior incident concerning her daughter and defendant Tommy McBerry. The objection made was that testimony about the incident would be irrelevant and immaterial. The plaintiff’s recast petition as amended contained an allegation of the incident. There was a special demurrer by both defendants to this allegation which was overruled, and the special demurrer was on the same grounds, i.e., relevancy. In failing to enumerate the ruling of the trial court on the special demurrer as error it was established as the law of the case that the allegation was relevant and the evidence was not inconsistent with the allegation.
Simmons v. Watson,
Moreover, it appears from the record that substantially the
Judgment affirmed.