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WARNER v. Olin Industries, Inc., also known as Western Cartridge Company, Respondent.

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District Court of Appeal, Second District, Division 3, California.

Thomas WARNER, Jr., Plaintiff and Appellant, v. SANTA CATALINA ISLAND COMPANY; Olin Industries, Inc., also known as Western Cartridge Company, et al., Defendants, Olin Industries, Inc., also known as Western Cartridge Company, Respondent.

Civ. 20173.

Decided: October 05, 1954

Manuel Ruiz, Jr., Los Angeles, for appellant. Crider, Tilson & Ruppe, Joe Crider, Jr., Los Angeles, for respondent.

On July 18, 1947, plaintiff lost the sight of his right eye in a shooting gallery when a bullet fired at a target ‘splashed, rebounded and ricocheted.’ Plaintiff was with a party at the shooting gallery and, simultaneously with the firing of a .22 rifle at a target by a member of his party, was struck in the eye by a particle of metal, which was not removed, and as a result the sight of his eye was destroyed. The gallery was located at Avalon on Santa Catalina Island. Plaintiff sued Santa Catalina Island Company, Olin Industries, Inc., also known as Western Cartridge Company, G. W. Rushmore, Amory P. Eckley, Thomas Browne, Gene Nordulund and Edward Nagle. Santa Catalina Island Company owned a building at Avalon called Sportland in which Rushmore and Eckley operated a shooting gallery. Olin Industries manufactured cartridges containing bullets known as ‘Kant Splash.’ Plaintiff filed a third amended complaint to which Olin Industries, Rushmore and Eckley filed answers. Rushmore and Eckley, having paid plaintiff $22,000 for a covenant not to sue, filed a cross-complaint against Olin Industries, seeking recovery of that amount.

The action went to trial upon plaintiff's third amended complaint and the answers thereto of Olin Industries, Rushmore and Eckley, the cross-complaint of Rushmore and Eckley against Olin Industries, and the latter's answer to the same. At the beginning of the trial, Olin Industries objected to the introduction of evidence on the cross-complaint, which motion was granted. The trial proceeded on the complaint against Olin Industries; at the conclusion of plaintiff's case the motion of this defendant for a nonsuit was granted and plaintiff appeals.

The third amended complaint alleged that the defendants other than Olin ‘* * * negligently and carelessly constructed, maintained, operated and supervised said shooting gallery without due, proper, or any care for the safety of all persons in proximity thereto * * *.’ In a second cause of action, it was alleged that Olin knew or should have known ‘* * * that by the mere passage of time, the physical and chemical qualities of the ‘Kant Splash’ cartridges would change, and that their capacity for doing damage would enhance, in that the lead mass would increase and the lead dust energy become more destructive and dangerous by adherence. That the special quality of disintegration would lessen, and ultimately the special propensities attributable to the same would become substantially non-existent,' and that said defendant was negligent in not advising operators of shooting galleries that the special propensities for disintegration would lessen with the passage of time. It was also alleged that the bullets were negligently manufactured. In a spearate cause of action, it was alleged Olin represented to purchasers of the bullets and users of the same that they were designed to disintegrate into small particles upon striking a metal target or backstop and that said defendant was negligent either in using defective material or in failing to use ordinary care in testing and inspecting the bullets. Thus, defendants Rushmore and Eckley were charged with negligence in the construction, maintenance, operation and supervision of the shooting gallery and Olin was charged with negligence in the manufacture and inspection of the ammunition and in failing to warn operators of shooting galleries that its propensities for disintegration would lessen with the passage of time.

Defendant has been making ‘Kant Splash’ cartridges for use in shooting galleries since 1944. As many as 25 million cartridges are made in a single year. Regular tests are conducted and constant inspection is maintained. The carridges are a .22 short containing a bullet composed of parties about the size of No. 12 shot, so constructed that the bullets are intended to disintegrate upon meeting a hard target or backstop. There was evidence that when fired at a 90-degree angle to the surface of a smooth backstop, the bullets disintegrate into fine particles but that when fired onto a pitted or uneven surface, while they also would disintegrate, they would be more likely to produce parties which would ricochet. When bullets strike the backstop, particles do not fall immediately to the floor nor are all the remaining particles of the same size. The bullet contains about 26 grains, the equivalent of about 130 No. 12 shot. After one test made by defendant by firing 100 cartridges, particles aggregating 75.8 grains were collected from the floor at a distance of some 10 to 20 feet from the backstop, 14.5 grains at a distance of 20 to 30 feet, 9.5 grains at a distance of 30 to 40 feet. Defendant's tests developed that there was a residue of small particles which rebounded from the backstop. In one test a piece containing 6 grains was found 15 inches from the backstop, one of 1.3 grains at 17 feet, one of 3.7 grains at 17 feet, one containing 3.1 grains at 11 feet, one containing 2.8 grains at 15 feet, and one of 1.1 grain at 18 feet. There was no evidence that in any of the tests made by defendant any particles of such size returned as far as the point where the guns were fired, which was 40 feet from the backstop. The particle that entered plaintiff's eye was exceedingly small, evidently went to the back of the eye and could not be located for removal without an operation, which was considered unduly hazardous.

One of plaintiff's witnesses was William Harper. He testified that he inspected the gallery in February 1948. He described the gallery, which was closed at the time. There was a metal backstop, the width of the gallery, extending from the floor to the ceiling. From the ceiling were suspended four metal baffles between the counter and the backstop, the one closest to the counter being 8 or 10 feet in front of it. The sides of the gallery from backstop to counter were metal-lined. The counter was approximately 37 feet from the backstop. The witness exhibited a piece of 2 x 4 with metal embedded in it, taken from near the counter, fragments of metal found in wood portions of the shooting bench, and some fragments from the left rear counter. He fired some shots from a revolver, not a rifle. He shot four bullets and collected the residue. He found a mushroom fragment remaining from each of the bullets he shot. Some of the particles were larger than No. 12 shot. The backstop was pitted, in some areas more than in others. The metal sides of the gallery were marked where they had been scraped. The baffles were indented. There was ample evidence that it was not uncommon for particles of bullets to ricochet about in different directions.

Ray H. Pinker, another of plaintiff's experts, conducted experiments and suffered a slight laceration upon his left hand when he fired a rifle onto the backstop. Only three weeks before plaintiff's accident, an attendant of another amusement place, seated about 15 feet from the front of the shooting gallery, was struck in the back by a small metal splinter which penetrated his clothing. He had heard pings emanating from nearby pinball machines which presumably were struck by particles of bullets.

Plaintiff contends that the bullets from which particles ricocheted must have been defective, but there was no evidence to that effect or that those bullets differed in any respect from the others. It was a known fact that there was a deflection of particles when a bullet was fied onto a rough or pitted surface. For this reason defendant examined the backstop in its testing gallery before each test and put in a new one when necessary. Cartridges were made at the rate of 200,000 per day, all in the same manner and, so far as shown by the evidence, by the best known methods. If they were not the best and safest cartridges that are made or could be made for use in shooting galleries, it was incumbent upon plaintiff to offer evidence of that fact. There was no such evidence. The claim that some of the bullets were defective is based upon pure assumption, without warrant in the evidence, or reasonable inferences therefrom. A conclusion that defendant was negligent in the manufacture of the bullet which caused plaintiff's injury would have had no support in the evidence.

Plaintiff says that defendant should have warned the operators of the galleries that at times particles of the bullets rebounded or ricocheted. Printing on the cartridge boxes stated in part: ‘These cartridges have special synthetic greased bullets designed to disintegrate into small particles upon striking a metal target or backstop.’ It is contended that this statement was misleading and that there should have been added a warning that they should be fired against a smooth surface, free from warping or pitting. These would be important questions if they arose between defendant and the operator of a shooting gallery, or other user, who had relied upon defendant's statement and was ignorant as to the necessity for the use of a smooth backstop. If it be granted that defendant had a duty to impart further information to the users of its cartridges and was negligent in failing to do so, there would remain in the present case the question of causal connection between the negligence and any injury caused by ricocheting fragments. Where a breach of duty consists of the failure to impart information, liability does not exist unless there is a reasonable basis for believing that the failure to impart the information was a contributing cause of injury. When the person who is entitled to receive the information is as well informed on the subject as the one who has a duty to impart it, or is sufficiently informed to act upon his own judgment, and does so, causal connection between the breach of duty and the result does not exist. Here the evidence of the plaintiff established beyond question that the gallery was operated by Rushmore and Eckley under conditions that were extremely hazardous, if not in complete disregard of the safety of their patrons. Fragments of bullets flew in all directions and were of sufficient size to cause serious harm. Defendant could have informed the operators that this might happen if they used a pitted backstop, but this would have added nothing to the knowledge the latter had of what was happening in their gallery with great regularity. Defendant, of course, had no duty to anticipate or become informed as to the conditions under which Rushmore and Eckley were using the ammunition. If the ammunition had been of higher power, defendant would not have been required to anticipate that it might be used in a gun which was choked with lead or rust.

Section 388, Restatement, Torts, reads: ‘One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied; (b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so.’

‘Comment on Clause (b): (i) One who supplies a chattel to others to use for any purpose is under a duty to exercise reasonable care to inform them of its dangerous character in so far as it is known to him or of facts which to his knowledge make it likely to be dangerous, if, but only if, he has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved therein.’

The most that can be said as to defendant's duty to give information is that it should have anticipated that the operator of a shooting gallery might use a pitted or otherwise rough and uneven backstop if he was ignorant of the danger involved in its use. This is not such a case. The facts plaintiff developed established gross and inexcusable negligence on the part of Rushmore and Eckley in the use of a pitted backstop with full knowledge that particles of bullets were deflected therefrom in such quantities and in such size as to endanger the safety of patrons of the gallery. Defendant had no duty to anticipate that its carridges would be used in any such grossly negligent fashion.

It was held in Stultz v. Benson Lumber Co., 6 Cal.2d 688, 695, 59 P.2d 100, that the seller of lumber known to be defective had no duty to anticipate that the buyer with knowledge of its faulty nature would negligently use it as a main support in the construction of scaffolding, as he in fact did use it, and that if the seller had any responsibility in the matter it was terminated and superseded by the negligence of the purchaser. However, as we have said there was no evidence of negligence in the manufacture of the cartridges. Plaintiff has not suggested any reason for believing that his accident would have been less likely to happen if defendant had warned the operators of the gallery that particles of bullets might under some conditions ricochet from a backstop, and no reason for such a belief occurs to us. The court did not err in granting a nonsuit.

The judgment is affirmed.

SHINN, Presiding Justice.

WOOD and VALLÉE, JJ., concur.

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