Jacobson v. Dahlberg
| Decision Date | 26 January 1970 |
| Docket Number | No. 22488,22488 |
| Citation | 464 P.2d 298,171 Colo. 42 |
| Parties | Rudolph JACOBSON, Plaintiff in Error, v. Ronald A. DAHLBERG and Dave Cook Sporting Goods Company, Defendants in Error. |
| Court | Colorado Supreme Court |
Yegge, Hall, Treece & Evans, Wesley H. Doan, William F. Dressel, Denver, for plaintiff in error.
James H. Howard, Denver, for defendant in error Ronald A. Dahlberg.
Sheldon & Nordmark, George M. Allen, Richard C. McLean, Denver, for defendant in error, Dave Cook Sporting Goods Co.
The defendant in error, Dahlberg, brought action against the plaintiff in error, Jacobson, for damages resulting from Jacobson's alleged negligent firing of a shotgun which resulted in the death of Dahlberg's black Labrador retriever. Jacobson had purchased the shotgun from the defendant in error Dave Cook Sporting Goods Company (referred to as the company). Jacobson obtained permission to bring in the company as third party defendant and he alleged in the third party complaint that the company was liable to him for breach of warranty and for negligence. At the conclusion of the testimony the trial court granted a motion to dismiss as to the company. The jury returned a verdict in favor of Dahlberg against Jacobson for $4500 plus interest and costs. It is not contended that the verdict was excessive. We affirm the judgment against Jacobson in favor of Dahlberg and reverse the order dismissing the company.
Jacobson desired a more powerful shotgun to be used in hunting geese. He had seen an advertisement of the company of a Belgian double barrelled 10-gauge shotgun for a price less than $200, and went to the company's place of business to examine it. He was advised that this gun was no longer in stock but that the company could sell him at a comparable price an Astra Imperial double barrelled 10-gauge shotgun of Spanish make. He then made inquiry at another establishment, but found that its 10-gauge shotguns were much more expensive. He returned to the company and again examined the Astra shotgun by looking in the barrels, by checking to see that both triggers fired and by looking for cracks and scratches in the stock. He purchased it and, prior to the date of the accident, had fired it approximately 20 times.
On the day of the accident Dahlberg, Jacobson and one Van Meter were going hunting. Van Meter was driving his station wagon, and the other two were in the front seat with Jacobson sitting in the center. Their guns were immediately behind the front seat. Dahlberg's dog and a dog of Van Meter were in kennels at the rear of of the vehicle. While in the vicinity of Sterling, Colorado they saw some pheasants and Van Meter stopped the vehicle. Jacobson turned around and picked up his 10-gauge shotgun and loaded it. As he closed the breech, the gun fired and the pellets struck the Dahlberg retriever. Jacobson testified that the closing of the breech caused the left barrel to fire without either of the triggers being pressed and without the safety being released.
Jacobson contends that the record discloses no negligence on his part. There is ample evidence in the record to the effect that the mere loading of a gun inside a car is negligence. Assuming Arguendo that a defect in the gun, unknown to Jacobson, caused the gun to fire when the breech was closed, nevertheless Jacobson's act in loading the gun inside the station wagon was sufficient to constitute negligence as shown by the evidence in this record, and to support the jury's verdict against him.
The first reason given by the company in support of the correctness of the court's order of dismissal is that the jury's determination that Jacobson's negligence was the proximate cause of the injury bars any recovery against the company. Schuster v. Steedley, 406 S.W.2d 387 (Ky.) is cited as supporting this view. Jacobson submits that the case is distinguishable. We doubt that it is distinguishable but, in any event, we believe that a different rule should be followed. Such a rule is to be found in an earlier opinion of the same court that wrote Schuster, namely, Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165. This is the proposition that where A's injuries result from the primary fault of B, but A has recovered against C for the injuries, C may hold B as an indemnitor. See Brown v. Chapman, 9 Cir., 304 F.2d 149, 4 A.L.R.3d 490; Hansen v. Firestone Tire & Rubber Co., 6 Cir., 276 F.2d 254; Rasmus v. A. O. Smith Corp., D.C., 158 F.Supp. 70.
The company also has cited Dallison v. Sears Roebuck and Co., 10 Cir., 313 F.2d 343, a case arising in Colorado. There plaintiff was seriously burned when a nightgown she was wearing ignited from contact with her cigarette and was rapidly consumed by flames. It was held that the plaintiff's negligence barred recovery by her against the seller of the nightgown under the Uniform Sales Act. We do not regard this case as being in point. It would be applicable if Jacobson had shot himself and brought action against the company.
It is urged upon us that Parrish v. DeRemer, 117 Colo. 256, 187 P.2d 597 is authority for the position we adopt. However, in Parrish it is stated in effect that C will be liable to A if C's negligence is the Sole and proximate cause of the injuries. The rule we pronounce goes further than the in Parrish. There was evidence submitted at the trial that the gun had been negligently and defectively manufactured with the result that, while it operated properly for the first few firings, this defective condition thereafter caused it to fire when the gun was closed and without any depression of the triggers. We hold that the question of whether there was a defect in the gun and, if so, whether that defect was the Primary cause of the injury are issues that should be submitted to the jury under the evidence in this record.
The accident occurred on December 26, 1964, prior to the adoption in this state of the Uniform Commercial Code. Therefore, the Uniform Sales Act then in effect is applicable. The second argument of the company is that it is not liable by reason of the following provision in the Uniform Sales Act: '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.' C.R.S.1963, 121--1--15 (3). The company argues that, since it did not know of the defect and made no express warranty, any liability would have to be predicated upon an implied warranty; and that the quoted portion of the...
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