Hogenson v. Service Armament Co.
| Decision Date | 06 November 1969 |
| Docket Number | No. 39855,39855 |
| Citation | 461 P.2d 311,77 Wn.2d 209 |
| Court | Washington Supreme Court |
| Parties | Curtis HOGENSON, Respondent, v. SERVICE ARMAMENT CO., Inc., a New Jersey corporation, Appellant. |
Trethewey, Brink & Wilson, Daniel Brink, Seattle, for appellant.
Reed, McClure & Moceri, Roy J. Moceri, William R. Hickman, Seattle, for respondent.
This is an action for personal injuries, the almost total loss of eyesight in one eye, which occurred when plaintiff was firing an old rifle using ammunition salvaged from the Spanish-American War and subsequently sold to plaintiff by defendant. The action was based on both negligence and breach of warranty. The jury in the trial court awarded damages to the injured party for $130,000. This appeal followed.
Curtis Hogenson was something of a gun buff. He already had two rifles and a shotgun when he saw an advertisement in a gun magazine offering for sale a .43 caliber Remington Rolling Block rifle. He ordered the rifle which had been manufactured in 1879 and used by an Argentine police force until shortly before its resale. Several months later, in response to Service Armament's advertisement in American Rifleman Magazine, he purchased 200 rounds of .43 caliber ammunition. He fired a number of rounds without mishap. On July 17, 1965, Hogenson went with a friend to an area near Tacoma for target practice. When he fired the second round of the day, something hit him on the right side of his face. Although the surrounding facial area was not harmed, he suffered extremely serious injury to his right eye.
Plaintiff's theory of the injury requires a somewhat detailed understanding of how the 'rolling block' works. (See diagram).
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Two heavy metal blocks pivoting on steel pins comprise the action. The forward block is the breechblock. It contains the firing pin and when moved forward and closed it holds the ammunition in the cartridge chamber of the rifle. The other steel block to the rear of the first block contains the hammer. When it goes forward, as in firing the gun, a portion of it rolls under and behind the breechblock forming a lock which normally prevents the breechblock opening during firing. It was plaintiff's contention during trial that on the occasion in question the cartridge was defective, allowing the primer to vent back against and alongside the firing pin. This in turn pushed the hammer block back into a cocked position, allowing the breechblock to rotate back and the cartridge to come back into plaintiff's eye with extreme force. (See diagram).
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The lengthy history of the .43 caliber ammunition supplied by Service Armament Co. gradually unfolded at trial. It had been manufactured in Spain in the last two decades of the nineteenth century, was sent to Cuba and was eventually captured by the United States during the Spanish-American War. It was sold to a Mr. Francis Bannerman, the ancestor of the third party defendant. For years it was kept in a damp concrete storage bunker on an island in the middle of the Hudson River. In 1959, Service Armaments purchased about 200,000 rounds of the ammunition for $200. Much of the ammunition was so badly corroded that it was not possibly salable and was scrapped. Some of the remaining ammunition was resized, using a power die, to compress the brass shell casings to fit the rolling block .43 caliber rifle. No notice was given to customers of the age of the powder and primers, the possibility of corrosion, or the fact that the shells had been reprocessed as indicated rather than reloaded. 1
Appellant, Service Armament, contends that the jury verdict was so excessive as to constitute error resulting from passion or prejudice. Error is assigned to the refusal of the trial court to admit as evidence a letter written by plaintiff's counsel which gave notice of breach of warranty.
Service Armament contends that the letter written by Hogenson's attorney shortly after the accident should have been accepted by the trial judge as an admission. The letter reads as follows:
August 2, 1965
Service Armament Company
689-R Bergen Boulevard
Richfield, New Jersey 07657
Re: Curtis Hogenson
Gentlemen:
We are attorneys for Mr. Curtis Hogenson of 27641 Pacific Highway South, Kent, Washington. On March 8, 1965, Mr. Hogenson sent you an order for 200 rounds of .43 Spanish ammunition and paid for the same. The ammunition was received by him on or about May 28, 1965. Thereafter, on July 17, 1965, while using this ammunition in a Remington Rolling-Block rifle (Spanish .43 rifle), the cartridge, while exploding, left the chamber, striking his right eye and permanently injured the vision of his right eye. Preliminary investigation indicates that the accident was due in part to premature firing of the primer and defective cartridge.
You are hereby placed on notice of breech (sic) of warranty on your part in that the cartridge in question was not fit for its intended use and was not of merchantable quality. Please be advised that Mr. Hogenson will hold you responsible for all damages caused thereby.
Would you please advise us the name of the company who loaded the cartridges in question.
Via Registered Airmail Return Receipt Requested
cc Mr. Curtis Hogenson
Appellant contends that the sentence suggesting that the accident may have been due to premature firing of the primer was inconsistent with plaintiff's later theory of how the injury occurred.
This court has long held that '(a)n admission, by an attorney, to be binding upon his client, must be distinct and formal, and made for the express purpose of dispensing with the formal proof of some fact at the trial.' State v. Wheeler, 93 Wash. 538, 161 P. 373 (1916). See also Dodge v. Stencil, 48 Wash.2d 619, 296 P.2d 312 (1956). The sentence here involved was clearly not intended to be binding but rather was gratuitous information included in the notice of breach of warranty. The language of the sentence--'Preliminary investigation * * * due in part * * *'--indicates the tentative and casual nature of the statement. It is neither distinct nor formal nor intended to dispense with the formal proof of a fact at trial. It was not intended as a stipulation or as a formal pleading.
There have been two theories by which the statements of attorneys have been attributed to their clients. Some courts speak in terms of adoptive admissions; others prefer a more traditional agency analysis. See E. Morgan, Basic Problems of Evidence 274 (1962).
There is no proof that the plaintiff knew or had heard about the letter under circumstances which would lead one to think that he had adopted it as an admission made by his counsel. Any implied agency was at most for the purpose of giving the required notice of breach of warranty and not for the purpose of making additional gratuitous statements. Realistically, the opposing party should not have relied on tentative statements in the letter.
(W)here the nature and circumstances of the utterance are such that the court and opposing counsel are not reasonably justified in relying thereon as upon a solemn admission intended as such, the utterance is not binding upon counsel making it or upon his client.
2 B. Jones, Evidence § 957 (J. Henderson ed. 1926). See also Morgan, Admissions, 12 Wash.L.Rev. 181, 188 (1937): 'The courts appear to be reluctant to charge a party with any but formal deliberate declarations of the attorney.' We think the letter was properly excluded.
Appellant assigns error to the failure of the trial court to submit the defense under the maxim 'volenti non fit injuria' to the jury. The defense under the 'volenti' maxim has been discussed in many previous opinions of this court. See Walsh v. West Coast Coal Mines, Inc.,31 Wash.2d 396, 197 P.2d 233 (1948); Martin v. Kidwiler, 71 Wash.2d 47, 426 P.2d 489 (1967); Detrick v. Garretson Packing Co., 73 Wash.2d 804, 440 P.2d 834 (1968); Regan v. Seattle, 76 Wash.Dec.2d 661, 458 P.2d 12 (1969). It is closely related to but distinct from the defense of assumption of risk. 2 The maxim 'no wrong is done to one who consents' implies knowledge. The inquiry is whether the risk is known and appreciated and, if so, did the plaintiff voluntarily consent to expose himself to it. The burden of proof is upon defendant to establish the elements of the defense. Whether he has successfully done so is normally a question for the jury. See Detrick v. Garretson Packing Co., 73 Wash.2d 804, 809, 440 P.2d 834, 837 (1968). However, before it can properly be submitted to the jury there must be at least some evidence introduced indicating that the plaintiff knew of the specific character of the risk, which if known might have caused him to reevaluate his voluntarily entering into the risk-creating situation. In other words, the defense requires more than a generalized feeling that there may be some hazard involved. To illustrate, one who attends a baseball game may be precluded from recovering for damages suffered when hit by a ball or broken bat. See, e.g., Kavafian v. Seattle Baseball Club Ass'n, 105 Wash. 215, 177 P. 776, 181 P. 679 (1919). This preclusion may apply even if the circumstances leading to the injury were somewhat bizarre. He would not be precluded from recovering for damages from a collapsing grandstand or from eating tainted concession food unless he knew of this specific risk and voluntarily accepted these risks.
In the instant case the plaintiff may well be held to have been aware of a generalized hazard involved in firing old guns. There was no evidence indicating that he was aware of the further specific hazard of firing cartridges of the age and condition involved. Had he been aware of this risk he may well have reevaluated his decision to engage in target practicing on the day in...
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