Boston University Law Review
17 (1937): 670.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
THE LIABILITY OF MAKERS AND SELLERS OF FIREARMS
By MELVIN M. JOHNSON, JR.*
I
INTRODUCTION
This article purports to cover certain aspects of the liability of manufacturers and vendors of commercial firearms. It is hoped that this study will appeal to the, layman as well as the lawyer. Those who are engaged in the making or selling of firearms may bear in mind that "an ounce of prevention is worth a pound of cure." Those who are engaged in the practice of law may have occasion to discover that there are relatively few decisions directly bearing upon this topic.
The great increase in the sale of sporting firearms and ammunition during the past few years has resulted largely from the low price of "twenty-twos," the growth of "skeet shooting," and the general exodus of our people toward the outdoors. Consequently, the handling and use of firearms is not confined to experts. Anyone can purchase a .22 calibre rifle for five dollars and a hundred cartridges for about eighty cents. A short drive out of the city and a few tin cans complete the picture, unless one has adequate cellar facilities in one's house. The shotgun and high-powered rifle do not lag very far behind the ".22," nor can we ignore the popularity of the revolver and pistol.
Suppose John Q. Public buys a gun and ammunition, goes out to the country and fires the aforesaid, in the process of which someone gets hurt. Who is liable? The manufacturer, the dealer, or the operator? Or can we say that the victim was injured due to his own contributory fault? To these questions our discussion shall be confined.
II
INTRODUCTORY ANALYSIS OF POSSIBLE ACCIDENTS WHICH MAY OCCUR WITH FIREARMS
We are concerned with single-shot, repeating, and self-loading rifles and shotguns, revolvers, pistols and automatic pistols. Moreover, we are concerned with the ammunition used in any of these arms.
Every "gun" has a barrel, a breech-block, a firing mechanism, a safety [Page 671] device, and a chamber into which the cartridge is inserted by some means, and in which the cartridge is locked by the breech-block. When the weapon is discharged, the primer in the cartridge ignites the powder in the cartridge, which forces the bullet or shot charge through the barrel in the direction in which the gun was pointed at the time of discharge. The ammunition, referred to as "cartridges" or "shells," consists of the projectile, the powder, the primer and the case.
When a gun is fired, the powder forms a gas which expands in the chamber and barrel, forcing the projectile through the barrel, and thus building up a considerable pressure. For example, in a Springfield army rifle the pressure reaches 50,000 pounds per square inch. This pressure exerts a great strain on the barrel, chamber and breech-block. If the ammunition is improperly loaded, or if the barrel, chamber, or breech-block are not sufficiently strong, the weapon may "blow up." Lack of strength in the gun may be due to (a) improper design, or (b) defective metals, or (c) both.
Ammunition is either specifically loaded for a certain type and design of firearm, or the weapon is designed for the ammunition. Obviously, guns and ammunition are inter-dependent. As the pressure in the cartridge increases, the strength of the gun must increase. If a standard gun has a certain pressure limit, the ammunition must not exceed that limit.
If, due to defects such as the above, a gun blows up, there may be absolute liability for the resulting injuries. Suppose, however, the gun discharges accidentally, due to a defect, either of design or manufacture, in the firing mechanism. Unless the gun was pointed at someone while loaded, no injury could result. Nevertheless, the gun was defective. Perhaps the manufacturer or dealer may be held liable, but query.
Situations may arise wherein the victim or the operator is entirely at fault. Thus, where a boy, marking targets on a rifle range, exposes his person above the edge of the shelter provided for his protection, the resulting injury would be attributable to him. Or if the operator handled a weapon in a negligent manner, he might be found liable. When the operator leaves a cleaning rag in the barrel, and upon firing the gun explodes as a result, the operator alone would be guilty of negligence, and could not possibly recover from the manufacturer or dealer.
III
GENERAL SURVEY OF THE LAW RELATINGTO LIABILITY OF MANUFACTURERS AND DEALERS
Let us now consider some of the pertinent decisions so that we may later apply the law to certain typical sets of facts. In our consideration [Page 672] of the legal aspects here involved, those learned in the law are urged to remember that this article is addressed to laymen as well as jurists.
(1) The maker of an article, or one who sells an article, may be liable in contract for breach of an express or implied warranty to the party with whom the contract for sale was consummated. But there is no liability unless there be privity of contract. Thus an ultimate user of a gun or other article cannot bring action for breach of warranty against the maker or dealer unless he actually purchased the article from him.[1] This is a well-known and familiar principle in the law of contracts. Usually the dealer is subjected to liability for warranty, and separate discussion of warranties will be set forth below. (See IV post.)
(2) Is a manufacturer liable to ultimate users of the article in tort, there being no privity of contract between the manufacturer and the party claiming injuries?
In 1842 the British Court of Exchequer held not.[2] This decision was somewhat qualified as an examination of the opinion will disclose. In 1903 the Circuit Court of Appeals of the United States, in Huset v. J. I. Case Threshing Machine Co.,[3] framed the question as follows:
"Is a manufacturer or vendor of an article or machine which he knows, when he sells it, to be imminently dangerous, by reason of a concealed defect therein, to the life and limbs of any one who shall use it for the purpose for which it was made and intended, liable to a stranger to the contract of sale for an injury which he sustains from the concealed defect while he is lawfully applying the article or machine to its intended use?"
The opinion of the Circuit Court contains a very enlightening discussion of Winterbottom v. Wright. The following extract is quoted:
"In the leading case of Winterbottom v. Wright this rule is placed upon the ground of public policy, upon the ground that there would be no end of litigation if contractors and manufacturers were to be held liable to third persons for every act of negligence in the construction of the articles or machines they make after the parties to whom they have sold them have received and accepted them. In that case the defendant bad made a contract with the Postmaster General to provide and keep in repair the stagecoach used to convey the mail from Hartford to Holyhead. The coach broke down, overturned, and injured the driver, who sued the contractor for the injury resulting from his negligence. Lord Abinger, C. B., said:
"'There is no privity of contract between these parties; and, if the plaintiff can sue, every passenger, or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such con- [Page 673] tracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue.'
"The views expressed by the judges in this case have prevailed in England and in the United States, with the exception of two decisions which are in conflict with the leading case and with all the decisions to which reference has been made. Those cases are Devlin v. Smith, 89 N. Y. 470, 42 Am. Rep. 311, in which Smith, a painter, employed Stevenson, a contractor, to build a scaffold 90 feet in height, for the express purpose of enabling the painter's workmen to stand upon it to paint the interior of the dome of a building, and the Court of Appeals of New York held that Stevenson was liable to a workman of Smith, the painter, who was injured by a fall, caused by the negligence of Stevenson in the construction of the scaffold upon which he was working; and Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N. W. 1103,15 L. R. A. 818,32 Am. St. Rep. 559, in which a painter purchased of a manufacturer a stepladder, and one of the painter's employes, who was injured by the breaking of a step caused by the negligence of the manufacturer, was permitted to recover of the latter for the injuries he had sustained."
However, there are three exceptions to the above rule, as well defined and settled as the rule itself. These exceptions are set forth by the Circuit Court as follows:
"The first is that an act of negligence of a manufacturer or vendor which is eminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life, is actionable by third parties who suffer from the negligence . . . . The leading case upon this subject is Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455. A dealer in drugs sold to a druggist a jar of belladonna, a deadly poison, and labeled it 'Extract of Dandelion.' The druggist filled a prescription of extract of dandelion, prepared by a physician for his patient. The patient took the prescription thus filled, and recovered of the wholesale dealer for the injuries she sustained. In Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298, a recovery was had by a third party for the sale of laudanum as rhubarb; in Bishop v. Weber (139 Mass. 411 (1885) ), for the furnishing of poisonous food for wholesome food; in Peters v. Johnston (50 W. Va. 644 (1902)), for the sale of saltpetre for epsom salts; and in Dixon v. Bell (5 Maule & Sel. 108 (1816)), for placing a loaded gun in the hands of a child. In all these cases of sale the natural and probable result of the act of negligence¾nay, the inevitable result of it¾was not an injury to the party to whom the sales were made, but to those who, after the purchasers had disposed of the articles, should consume them. Hence these cases stand upon two well-established principles of law: (1) That every one is bound to avoid acts or omissions imminently dangerous to the lives of others, and (2) that an injury which is the natural and probable result of an. act of negligence is actionable. It was the natural and probable result of the negligence in these cases [Page 674] that the vendees would not suffer, but that those who subsequently purchased the deleterious articles would sustain the injuries resulting from the negligence of the manufacturers or dealers who furnished them.
"The second exception is that an owner's act of negligence which causes injury to one who is invited by him to use his defective appliance upon the owner's premises may form the basis of an action against the owner . . . .
"The third exception to the rule is that one who sells or delivers an article which he knows to be imminently dangerous to life or limb to another without notice of its qualities is liable to any person who suffers an injury therefrom which might have been reasonably anticipated, whether there were any contractual relations between the parties or not."[4]
The essence of the decision in Huset v. Case Co. is set forth in the final paragraph of the opinion:
"The allegations of the complaint are that the defendant prepared a covering for the cylinder of the threshing machine, which was customarily and necessarily used by those who operated it to walk upon, and which was so incapable of sustaining the least weight that it would bend and collapse whenever any one stepped upon it; that it concealed this defective and dangerous condition of the threshing rig so that it could not be readily discovered by persons engaged in operating or working upon it; that it knew that the machine was in this imminently dangerous condition when it shipped and supplied it to the employer of the plaintiff ; and that the plaintiff has sustained serious injury through this defect in its construction. The case falls fairly within the third exception. It portrays a negligence imminently dangerous to the lives and limbs of those who should use the machine, a machine imminently dangerous to the lives and limbs of all who should undertake to operate it, a concealment of this dangerous condition, a knowledge of the defendant when it was shipped and supplied to the employer of the plaintiff that the rig was imminently dangerous to all who should use it for the purpose for which it was made and sold, and consequent damage to the plaintiff. It falls directly within the rule stated by Mr. justice Gray (in Wellington v. Oil Co., 104 Mass.. 64) that when one delivers an article, which he knows to be dangerous to another person, without notice of its nature and qualities, he is liable for an injury which may [Page 675] be reasonably contemplated as likely to result, and which does in fact result therefrom, to that person or to any other who is not himself in fault. The natural, probable, and inevitable result of the negligence portrayed by this complaint in delivering this machine when it was known to be in a condition so imminently dangerous to the lives and limbs of those who should undertake to use it for the purpose for which it was constructed was the death, or loss of one or more of the limbs, of some of the operators. It is perhaps improbable that the defendant was possessed of the knowledge of the imminently dangerous character of this threshing machine when it delivered it, and that upon the trial of the case it will be found to fall under the general rule which has been announced in an earlier part of this opinion. But upon the facts alleged in this complaint, the act of delivering it to the purchaser with a knowledge and a concealment of its dangerous condition was so flagrant a disregard of the rule that one is bound to avoid any act imminently dangerous to the lives and health of his fellows that it forms the basis of a good cause of action in favor of any one who sustained injury therefrom."[5]
It will be noted that the Huset case falls within the third exception. Particular attention is called to the reference made to "notice of its qualities." This qualification should be carefully borne in mind by the maker and dealer, and this point will be again discussed below.
A leading Massachusetts case is that of Thornhill v. Carpenter-Morton Co.,[6] where the defendant sold walnut stain of another's make, representing the stain to be of its own manufacture. The plaintiff's husband bought a can of the stain, which was highly inflammable, and the plaintiff was injured while using it. The Court held that proof of actual knowledge is not required when the article is so made up as to be inherently harmful. The manufacturer who assembles components, or accepts them as his own after assembly, must be presumed to know the nature and quality of the article which he puts upon the market. An examination of this opinion makes it clear that liability might have been avoided if the defendant had caused to be inscribed on the container a warning as to the dangerous properties of the product sold.
A leading case in New York is that of MacPherson v. Buick Motor [Page 676] Co.[7] A car, made by the defendant, and sold to the plaintiff by a retail dealer, collapsed while being driven, due to defective wood in the wheels which were the product of another manufacturer. There was evidence that the defects in the wheels could have been discovered by a reasonable inspection, and that inspection was omitted. There was no claim that the defendant knew of the defect and willfully concealed it. In the majority opinion Cardozo, J., indicated that the defendant was under a duty to inspect and test the product marketed. This duty was not lessened by the fact that an automobile is not an inherently dangerous vehicle.
"The obligation to inspect must vary with the nature of the thing to be inspected."
In this connection we may quote a passage from the opinion in Loop v. Litchfield,[8] in which the Court discusses the nature of articles such as poison, gunpowder, torpedoes, spring guns, loaded rifles.
"They (loaded rifles, etc.) are . . . in their nature calculated to do injury to mankind, and generally intended to accomplish that purpose. They are essentially, and in their elements, instruments of danger."
The case of Flies v. Fox Bros. Buick Co.[9] sheds some light on the question of "intervening cause." The defendant repaired a wrecked car and on the facts should have known the brakes were defective. The plaintiff was injured because the driver could not stop the car at an intersection. Upon special verdict it was found that failure to equip the car with proper brakes was the proximate cause of the injury. It was held that the negligence of the operator of the car was not an intervening cause on these facts.
A leading case in Massachusetts is that of Farley v. Tower Company, decided in 1930, and joined with Farley v. Standard Pyroxoloid Corporation.[10]
The plaintiff brought three actions in tort, for injuries sustained from certain hairdressing combs of inflammable material, against the hairdresser, dealer, and manufacturer. For the purposes of our study, the following rules are taken from the opinion:
(1) A person who sells an article, which he knows is inherently dangerous to human life, limb, or health, to another person, who has no knowledge of its true character, and fails to give notice thereof to the purchaser, is liable in damages to a third person who, while in the exercise of due care, is injured by a use of it which should have been contemplated by the seller. [Page 677]
(2) The manufacturer of an article must be presumed to have knowledge of its dangerous qualities.
(3) Under the rule set forth in subparagraph (1) above, a jury would be warranted in finding facts which would render the dealer liable.
In Cadogan v. Boston Consolidated Gas Company,[11] the injuries resulted from the escape and accumulation of illuminating gas. The Court held that:
"In the law of torts there is, in general, no duty to warn unless the person on whom the duty would be cast has reason to suppose that a warning is needed…We think that at this late day the defendant could reasonably assume that a householder in Boston was sufficiently familiar with the kind of illuminating gas used in this part of the country to know that it was dangerous to health . . . ."
With reference to the above decision, we may observe that Bostonians are alleged to be peculiar, as compared with those of other sections, particularly as regards their intellect. However, if one should know the dangerous properties of gas, one should also know the dangerous qualities of a loaded firearm. just as a gas stove is within the control of the householder, so also is a loaded firearm within the control of the shooter.
"Never, never let your gun, pointed be at anyone."
IV
BRIEF REFERENCE TO THE LIABILITY ON WARRANTY TO PERSONS IN DIRECT CONTRACTUAL RELATIONSHIP WITH THE VENDOR
The liability of any seller, whether he be a dealer or manufacturer, on the basis of warranty, express or implied, to one in contractual relationship with the seller, was indicated above. (See III, subsection 1, supra.) This liability extends only to the actual purchaser. For the information and guidance of all concerned the following sections of the Uniform Sales Act are set forth:
12. (Definition of Express Warranty.) Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only shall be construed as a warranty.
14. (Implied Warranty in Sale by Description.) Where there is a contract to sell or a sale of goods by description, there is an implied warranty that the goods shall correspond with the description and if the [Page 678] contract or sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.
15. (Implied Warranties of Quality.) Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:
(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.
(2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.
(3) If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed.
(4) In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.
(5) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.
(6) An express warranty or condition does not negative a warranty or condition implied under this act unless inconsistent therewith.
Of particular concern to dealers in firearms, ammunition, etc., is Section 15 (1) of the Uniform Sales Act, quoted above. Typical sets of facts illustrating the applicability of this section will be set forth below. (See V, post). There are numerous cases on this subject which are obviously applicable to our immediate study.[12]
V
DETAILED ANALYSIS OF TYPICAL FIREARM ACCIDENTS; APPLICATION OF FOREGOING AND OTHER DECISIONS: WHERE STRUCTURE, MATERIALS, OR DESIGN ARE BASICALLY DEFECTIVE; WHERE NOTICE OF DANGEROUS QUALITY OF COMPONENTS NOT GIVEN
In setting forth the following situations, we shall confine ourselves to those which are believed to be the most representative. In presuming to [Page 679] decide these cases, the writer beseeches indulgence, and assures those concerned that he has no delusions of judicial grandeur. Every effort will be made to avoid lapsing into a state of cerebral free-wheeling.
To dispense with the use of proper names, we shall refer to Manufacturers as "M," Dealer as "D," Buyer as "B," Victim as "V," Operator as "O." Where one concern made the firearms, and another the ammunition, and a third the powder, we shall use the letters "MF," "MA," and "MP" respectively. In this way we may at the outset, impose upon the layman that juristic confusion which he so naturally expects, and of which he has so much heard.[13]
Case 1
M made a .30-06 sporting rifle, using a low-grade tool steel in the bolt and receiver instead of chromium nickel, chrome-vanadium, molybdenum, or similar steel. V was injured. M is liable in tort. If B was injured, M is liable in contract or tort. If the dealer knows of the above defect in M's guns, D is liable to V and B as above.
Case 2
MA made .30-06 sporting ammunition. The bullets assembled by MA were several thousandths of an inch larger in diameter than the groove-diameter of standard .30-06 barrels. MA is liable to V and B. D is not liable unless he had actual knowledge.
Case 3
MF bought barrel reamers from X Co. MF bored out rifle barrels in .30-06 calibre. The groove diameter of the barrels was .2985 inches instead of .3005 inches, due to the fault of X Co. MF is liable to V and B. D is not liable unless he had actual knowledge. (Compare MacPherson v. Buick Co.)
Case 4
MA bought powder from MP to make pistol ammunition. The powder actually developed twice as much pressure as that specified by MA. The cartridges caused V's pistol to blow up. MA is liable to V and B. MP is liable as well. (Note: Of course plaintiff cannot collect twice.) D same as above, Case 3.
Case 5
MF sold a.30-06 rifle in which the headspace was 1.956 inches, instead of 1.946 inches. MF is liable to V and B. D same as above. (Excessive headspace in such rifles often results in ruptured cartridge cases, which, in turn, may cause a "blow-up.") [Page 680]
Case 6
MA sold a new type of cartridge having more pressure than the normal maximum in that calibre. V had a standard rifle in poor condition, but capable of withstanding normal pressure. Many other rifles on the market would withstand the pressure of the new M.A. load. V's rifle blew up. MA is probably liable to V or B under these circumstances, unless an adequate warning was printed on every box of cartridges.
Case 7
MA sold new high-velocity .44-40 cartridges for use in the MF sporting rifle. .44-40 cartridges of the medium velocity type were suitable for CF .44-40 revolvers.
(A) MA printed on the cover of each box of cartridges: "These cartridges are for use in rifles only. Not to be used in revolvers." V used same in a CF revolver. Injured. MA not liable. No liability.
(B) MA printed no instructions. Box labeled "high-velocity." MA probably liable. Query whether this comes within Cadogan v. Boston Consolidated Gas Co. I take it not, but suppose V or B was an expert? Query. D would be liable if he sold these shells to B as revolver loads. D would have difficulty in disproving actual knowledge.
Case 8
MF sold an automatic pistol (or rifle) in .22 calibre shortly before MA marketed the new high-speed .22 cartridge. V fired these loads in his MF gun. The breech-block opened too soon due to the excess pressure, and the shell burst, injuring V. MF is not liable to V or B.14
Case 9
MF sold a rifle in which the firing pin was too long. When V fired the gun, the primer of an MA cartridge was pierced. Gas blew back in V's eye. MF is liable to V and B.
Case 10
MP made powder for use in rifle cartridges. This powder was extremely sensitive to heat. If left in a room temperature of 90° Fahrenheit for one week, this power would double its normal pressure. MP sold such powder to MF who loaded it in cartridges and sold same to dealers in the tropics. V kept a box for one month in the tropics. When he fired a cartridge his gun blew up. MP, MF, and D, if he had actual knowledge, are liable to V or B.
Case 11
MF sold an automatic pistol. The sear was defective in design (or [Page 681] construction). When V allowed the slide to move forward in loading the pistol, the sear let the hammer slip. This discharged the gun, and it kept on firing all the cartridges in the magazine. The pistol thus became uncontrollable in V's hands. One bullet struck him, and other bullets struck VX, VY, and VZ. MF may be fully liable. This case is not clear-cut, however. V was handling a loaded gun. The evidence would have to be complete to show that the sear was defective. However, sporting guns which can discharge accidentally upon the closure of the breech are obviously defective. If the gun could cause a shell to explode while the breech was open, thereby blowing up the gun, the liability of MF would be perfectly clear. (Compare the facts in this case with those in Case 12 below.)
VI
SAME: WHERE DESIGN OR MANUFACTURE IS SUCH THAT WEAPON MAY BE ACCIDENTALLY DISCHARGED
With the exception of Case 11 above, all of the preceding cases involved exploded or "blown-up" guns. Let us now consider cases where the injury is caused by a bullet discharged through the barrel.
When the injury is thus caused, it seems apparent that the gun must have been in operator O's hands; that O must have been pointing a loaded gun at V.
Case 12
MF made .22 cal. rifles which D sold under D's name, but in factory-packed boxes. B asked D to deliver model X, selected by B at D's store. D did not have a model X rifle in stock, so D selected model Y, and sent one to B in its place.[15] B later loaded the rifle, and put on the safety. Then he carelessly pointed the loaded rifle at V's stomach, at the same time unlocking the safety. Due to defective machining of the sear in this particular rifle, which MF did not discover from inspection at the factory, the rifle discharged upon the rotation of the safety. B did not touch the trigger. V was severely injured.
V and B sued D, and D joined MF as a defendant. B failed to give D the necessary notice required when one claims a breach of warranty.
Obviously MF was negligent. Query whether D should have known or discovered the defect, D having no actual knowledge of it.
What about the negligence of B, who operated the gun, in pointing a loaded firearm at another person?
Let us compare Flies v. Fox Bros. Buick Co.,[16] discussed above, in [Page 682] which the negligence of the operator of a car was held not to be a supervening cause, the defendant having failed to equip the automobile with proper brokes.
Could any injury have resulted in the problem case above unless B, the operator, pointed the loaded gun at V? No. Was O (B) negligent in handling the loaded rifle in this fashion? Yes. It is actionable negligence for one, while adjusting the hammer of a loaded revolver, to hold it so that an accidental discharge would injure another.[17]
When a rifle was discharged to the plaintiff's injury, due to the fact that the defendant's thumb, which was numb with cold, slipped from the hammer, it was held that the accident was due to the negligence of the defendant in pointing the loaded weapon towards the plaintiff.[18]
The highest degree of care is exacted of a person handling firearms. They are extraordinarily dangerous, and in using them extraordinary car should be exercised to prevent injury to others.[19]
On the facts it is apparent that MF was negligent. Can we distinguish between the safety on a rifle, and the brakes on a car?
The average firearm can be discharged only by pulling the trigger. B had no notice of the peculiarity of the MF rifle. He was not warned that it could be discharged by merely rotating the safety to the "ready" position. As long as the safety was "on," the rifle could not possibly fire, yet, when B rotated that safety he was pointing a loaded rifle at V without the safety on.
Would the maker of a firearm be guilty of negligence if he failed to provide his product with any safety? Certainly not. You can buy several types of guns which have no safeties. For example, to fire a revolver you need only cock it, or, if it is of the double-action type, you can give the trigger a long pull. Revolvers are a very common type of firearm, and are considered much safer to handle than automatic pistols. They have no safety device.
Would the maker of an automobile be guilty of negligence if he failed to provide his product with any brakes? Imagine an automobile without any brakes! There is an obvious distinction between our suppositious rifle case, and that of Flies v. Fox Bros. Buick Co.
But, we must go further. Has B a right to rely upon the workability of devices which MF voluntarily puts on his product? In other words, MF has induced B to rely upon the safety device. Does that mean B can point the loaded rifle at himself or V and try to pull the trigger while the safety is on? Certainly not. It is very doubtful whether any court [Page 683] would relieve B from absolute liability on such facts, even though the safety was defective. In the instant case, B was taking the safety off. The movement of the safety device in combination with the defect in the firing mechanism, caused the gun to fire. Firearms are made to fire when loaded. They are not vehicles, but weapons, designed, primarily, to inflict harm and take life.
In the last analysis V can never be injured from the bullet, unless the gun is pointed at him, deliberately or carelessly. It is respectfully. submitted that the careless pointing of a loaded firearm at another is extremely negligent and borders upon recklessness, regardless of whether or not the safety, if any, was in the "safe" position; that such an act is an intervening cause.
Therefore, it is submitted that neither FM nor D are liable to V or B on the above facts. V has a cause of action against the operator. However, the above case is very close, and it is not certain which way an appellate court would decide. Compare Case 25 in Section VIII in this connection. I submit it is distinguishable on the facts.
VII
SAME: WHERE THE OPERATOR, BUYER, OR VICTIM CAUSES THE ACCIDENT
Case 13
O cleaned his MF rifle and carelessly left a rag in the barrel. Upon firing, the rifle blew up. No liability.
Case 14
O fired smokeless powder shells in a shotgun designed for black powder only, said gun having been made before the introduction of smokeless powder. MF is not liable.[20]
The following paragraphs are quoted from Favo v. Remington Arms Co., and may be also compared with other questions raised in the preceding sections:
"While a gun of itself is not a dangerous instrument, yet it is intended to be loaded and fired, and if made of improper material and negligently put together it is liable to explode and do serious injury to life and limb. It becomes, therefore, in the use for which it is intended, a dangerous instrument.
"A manufacturer and dealer in dangerous articles intended for use, such as a gun, is liable to the purchaser at least for damages resulting from his negligence in using defective materials, or from want of proper care and skill in manufacturing. [Page 684]
"This is not upon the ground of warranty, express or implied, but because the vendor owes to the public a duty not to expose human life to danger by negligently and carelessly putting upon the market an article as harmless which is in fact dangerous.
"But, in order to fasten liability upon a manufacturer, a negligent use of material and want of proper care and skill in the manufacturing must be proven. The bare bursting of a gun does not make a manufacturer liable.
"The defendant is not guilty of negligence because the gun was not adapted to the use of that kind of powder. The most that it was required to do was to make a gun suitable for use under the conditions existing at the time it was put on the market.
"Guns are of different kinds, intended to resist greater or less force, according to their pattern and intended use. A gun entirely adapted to one use and a certain charge of powder may be entirely inadequate for a different use and a higher charge, and the manufacturer will be entirely relieved from responsibility if the gun were not used in an ordinary and reasonably to be anticipated manner."
Case 15
B loaded his own ammunition by hand. He used an excessive amount of powder which developed a dangerous pressure. Consequently, his rifle blew up. No liability.
Case 16
B ordered .44-40 revolver cartridges from D, who, without giving B any notice, sent B .44-40 high-velocity rifle cartridges. The box had a warning written on the cover: "For Rifles Only." (Note: it is question of fact whether B was negligent in not reading the warning.) D is liable unless it is found that B was negligent in not reading the warning.[21]
Case 17
O hung his MF auto-loading rifle on a peg in a camp. The gun was fully loaded. V came in the room where the rifle was hung. Z then came in the room and slammed the door. The jar caused O's rifle to discharge several shots, injuring V. O is liable.
Case 18
Several soldiers were shooting ten rounds, rapid-fire, on a rifle range. O fired five shots and then suddenly darted toward the target. A shot from X's rifle struck O. X is not liable.
Case 19
V was engaged in operating the number two trap on a skeet field. O was shooting doubles from station one. When O fired his first shot, V stuck his head up to the aperture in his trap-house. O's second shot hit V. O is not liable. [Page 685]
VIII
MISCELLANEOUS
Case 20
This case is in the nature of a confession. The writer on one occasion was firing a .45 Colt automatic pistol on the army course, using war-time ammunition, then having been loaded over fifteen years. I knew this ammunition was too old to be very safe. In firing five rounds, rapid-fire, the third round sounded like a dud, for it made a very slight noise. I pulled back the slide and was about to load another shell, but, fortunately, I first examined the bore and found the bullet lodged near the muzzle. Had I fired another round, I would probably have blown up my pistol.
Had this been fresh ammunition, I might have held the maker liable. However, on these facts there would have been no liability in the event I had blown up the pistol.
Case 21
MP made dynamite caps which could be exploded by the heat of the sun. Unless he gives notice of this condition he is liable to V.[22]
Case 22
In Bonham v. Winchester Repeating Arms Co.,[23] the plaintiff sued in contract on a warranty, alleging a defective shotgun shell which blew up the barrel of his L. C. Smith gun. The plaintiff purchased the shells from a local dealer, and not from the defendant. Obviously, he should have sued in tort.[24]
The court indicated that the damage was probably caused by an obstruction in the barrel.
The court stated the general rule that res ipsa loquitur does not apply when the instrument is not, at the time of the accident, in the control of the defendant.[25] This view obtains generally with respect to all firearms accidents in which the operator is injured.
The weakness of the plaintiff's case is seen from the fact that counsel for Winchester assigned thirty-one errors, the court finding it necessary to consider only the refusal of the trial court to give a peremptory instruction to the jury to find the defendant not liable at the close of the evidence.
Held, that upon the evidence the refusal of the trial court to give the instruction was error. [Page 686]
Case 23
With respect to the method of proving or disproving defects in a firearm, the following is quoted from Welshausen v. Parker Company:[26]
"The gun was in evidence, and there was some evidence that the cartridges fitted the left barrel somewhat loosely. But the jury would not be permitted from these facts alone to conjecture that the gun was defective or unsafe. Those facts laid the foundation for the introduction of further evidence by experts to show that the thickness of the barrels as shown by the exhibit was insufficient for safety, or that the quality of the steel was poor, or that the barrels were improperly or irregularly bored, and that the looseness of the fit of the cartridge was liable to cause a disruptive explosion."
Case 24
It is beyond the scope of this study to consider the liability of a seller or dealer who negligently disposes of a weapon to a minor, or who, in disposing of a weapon, violates a statute, and for such violation is negligent per se.[27]
Case 25
MF negligently sold a gun, loaded, to W, a wholesaler, who sold it to D, a retailer. B, a customer, was examining the gun, and while so doing shot V, D's clerk. MF was held liable. The negligence of B was not an intervening cause.[28] This case should be compared with Case 12 supra.
XI
CONCLUSION
We should pay tribute to our arms makers for the quality of their work. The number of guns which have blow up due to the fault of the manufacturer is extremely small. The world is filled with "smart guys" who "know too much" about guns. They are usually the ones at fault. Some people are afraid of guns. Those who are the most afraid of guns are those who use them the most. The expert is not afraid to shoot a gun, but he is afraid to take any chances. The tyro does not know enough to be afraid. He does not respect a gun. He knows it is not loaded, when, in fact, it is loaded.
I have personally discharged guns which I thought were not loaded on three occasions. Fortunately, in each case, I had carefully pointed the [Page 687] gun in a perfectly safe direction. ALWAYS HANDLE YOUR GUN AS IF IT WERE FULLY LOADED.
Guns have a very peculiar trick of getting loaded when you do not know it. Treat them accordingly.
If one uses firearms, and we all do, he owes it to himself and his fellow-men to learn how to handle them.[29]
* B.S. (1931), LL.B. (1934) Harvard; Instructor, Boston University Law School; Member of the Massachusetts Bar; author of numerous articles on firearms and military subjects;. inventor, Johnson semi-automatic rifle and light machine gun; First Lieutenant, U. S. Marine Corps Reserve. Author of "The Spirit of Equity," 16 BOSTON UNIVERSITY LAW REVIEW, 345. [Ed.].1. Welshausen v. Charles Parker Co., 83 Conn. 231, 76 Atl. 271.
2. Winterbottom v. Wright, 10 M. & W. 109.
3. 120 Fed. 865, 61 L. R. A. 303.
4. Citing for the first exception, Dixon v. Bell, 5 M. & S. 198; Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298; Elkins v. McKean, 79 Pa. 493, 502; Bishop v. Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715; Peters v. Johnson, 50 W. Va. 644, 41 S. E. 190, 57 L. R. A. 428, 88 Am. St. 909; citing for the second exception, Coughtry v. Globe Woolen Co., 56 N. Y. 124, 15 Am. Rep. 387; Bright v. Barnett & Record Co., 88 Wis. 299, 60 N. W. 418, 420, 26 L. R. A. 524; Heaven v. Pinder, L. R. 11 Q. B. D. 503; Roddy v. Missouri Pac. R. Co., 104 Mo. 234, 241, 15 S. W. 1112, 12 L. R. A. 746, 24 Am. St. 333; and citing for the third exception, Langridge v. Levy, 2 M. & W. 519; Wellington v. Downer Kerosene Oil Co., 104 Mass. 64, 67; Lewis v. Terry, 111 Cal. 39, 43 Pac. 398, 31 L. R. A. 220, 52 Am. St. 146.
5. Accord: Lewis v. Terry, 111 Cal. 39, 43 Pac. 398, 31 L. R. A. 220, 52 Am. St. 146 (1896) ; Wellington v. Downer Kerosene Oil Co., 104 Mass. 64 (1870) ; Elkins V. McKean, 79 Pa. 493 (1875) ; Skinn v. Reutter, 135 Mich. 57, 97 N. W. 152 (1903) Marsh v. Webber, 13 Minn. (Gil. 99) 109, 63 L. R. A. 743, 106 Am. St. 384 (1868); Jeffrey v. Bigelow, 13 Wend. 518, 28 Am. Dec. 476 (N. Y. 1835); Clement v. Crosby & Co., 148 Mich. 293, 111 N. W. 745, 10 L. R. A. (N. S.) 588, 12 Ann. Cas. 265 (1907); Weiser v. Holzman, 33 Wash. 87, 73 Pac. 797, 99 Am. St. 932 (1903); McCaffrey v. Mossberg & Granville Mfg. Co., 23 R. I. 220, 55 Atl. 639 (1903), semble; O’Brien v. American Bridge Co., 110 Minn. 364, 125 N. W. 1012, 32 L. R. A. (N. S.) 980, 136 Am. St. 503 (1910); Woodward v. Miller, 119 Ga. 618, 46 S. E. 847, 64 L. R. A. 932, 100 Am. St. 188 (1903).
6. Mass. 593, 108 N. E. 474 (1915).
7. 217 N. Y. 382, 111 N. E. 1050 (1916).
8. 42 N. Y. 351 (1870).
9. 196 Wis. 196, 218 N. W. 855, 60 A. L. R. 357 (1928).
10. 271 Mass. 230.
11. Mass. Adv. Sh. (1935),1149.
12. Ward v. Great Atlantic and Pacific Tea Co., 231 Mass. 90; Farrell v. Manhattan Market Co., 198 Mass. 271; Race v. Krum, 222 N. Y. 410; Cook v. Darling, 160 Mich. 475; Graustein v. Wyman, 250 Mass. 290. See also Friend v. Childs Dining Hall Company, 231 Mass. 65.
13. All of these cases are entirely fictitious. Injuries are, of course, sustained by V or B in every case.
14. Favo v. Remington Arms Co., 67 App. Div. (N. Y.) 414.
15. Consider here Uniform Sales Act, Section 15, Warranty.
16. 196 Wis. 196.
17. Judd v. Ballard, 66 Vt. 668, 30 Atl. 96.
18. Foell v. Rasmussen, 193 Ill. App. 609.
19. Cooley on Torts (3rd ed.), p. 1232; State v. Cunningham, 107 Miss. 140, 65 So. 115.
20. Favo v. Remington Arms Co., 67 App. Div. (N. Y.) 414; Bonham v. Winchester Repeating Arms Co., 179 Ill. App. 469.
21. Smith v. Clarke Hardware Co., 100 Ga. 163, 28 S. E. 73.
22. Du Pont v. Du Boise, 236 Fed. 690.
23. 179 Ill. App. 469 (1913).
24. Welshausen v. Parker Co., 83 Conn. 231, 76 Atl. 271.
25. See also Riggs v. N. Y. Tunnel Co., 134 App. Div. (N. Y.) 672.
26. 83 Conn. 231, 76 Atl. 271.
27. Binford v. Johnston, 82 Ind. 426; McMillen v. Steele, 275 Pa. 584; Shaffer v. Mowery, 265 Pa. 300.
28. Herman v. Markham Air Rifle Co., 258 Fed. 485.
29. "A little knowledge is a dangerous thing; Drink deep or taste not the Pierian Spring." (Alexander Pope.)