Keith v. Gregg

• Decision Date: 16 December 1936
• Docket Number: 595.
• Parties: KEITH v. GREGG et al.
• Court: North Carolina Supreme Court

188 S.E. 849

210 N.C. 802

KEITH v. GREGG et al.

No. 595.

Supreme Court of North Carolina

December 16, 1936

Appeal from Superior Court, New Hanover County; R. Hunt Parker Judge.

Action by T. W. Keith against S. Alex Gregg, Jr., and others partners, trading and doing business under the firm name and style of Gregg Brothers. From a judgment in favor of the defendants, the plaintiff appeals.

No error.

In action by purchaser of shotgun shells against seller for injury caused by explosion of shotgun, probative force of expert testimony that explosion was result of smaller gauge shell being in gun barrel ahead of larger gauge shell was for jury's determination.

This is a civil action brought by the plaintiff to recover of the defendants damages for an alleged breach of an implied warranty in the contract of sale of certain loaded gun shells (12-gauge scatter-load shells), manufactured by the Remington Arms Com.

The issues submitted to the jury, and their answers thereto, are as follows:

"1. Was the plaintiff injured by a breach of an implied warranty that the gun shells sold by the defendants to the plaintiff on December 24, 1934, were reasonably fit for the purpose for which the gun shells were sold and purchased as alleged in the complaint? Answer: No.

2. What damages, if any, is the plaintiff entitled to recover? Answer: ------."

On the verdict the court below rendered judgment. The plaintiff made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones will be considered in the opinion.

E. K Bryan and Rountree & Rountree, all of Wilmington, for appellant.

Isaac C. Wright, of Wilmington, for appellees.

CLARKSON, Justice.

This action was tried in the court below on the theory alleged in the complaint that the damage to plaintiff was caused by the breach of an implied warranty in the sale of certain 12-gauge scatter-load gun shells, sold by defendants to plaintiff. The defendants made no motion in the court below for judgment as in case of nonsuit. C.S. § 567. Jones v. Ins. Co., 210 N.C. 559, 187 S.E. 769. This theory was recognized in the charge of the court below: "If you find from the evidence in the case, and by its greater weight, the burden of proof being upon the plaintiff, Thomas W. Keith, to so satisfy you, that the gun shells sold by the defendants to the plaintiff on the 24th day of December, 1934, were not reasonably fit and proper for the purpose for which the gun shells were sold and purchased and that by reason of any such unfitness or defect a gun shell purchased by the plaintiff from the defendants exploded in the left barrel of plaintiff's gun on Christmas day, 1934, when the plaintiff was hunting quail, blowing out part of the left barrel of plaintiff's gun, was the direct proximate cause of plaintiff's injuries, it will be your duty to answer the first issue in this case Yes; if you fail to so find it will be your duty to answer the first issue in this case No."

In Thomason v. Ballard & Ballard Co., 208 N.C. 1, 4, 179 S.E. 30, 32, Connor, J., for the court says: "There are decisions in this jurisdiction to the effect that, as between a vendor and his vendee, there is an implied warranty that the personal property sold by the vendor and purchased by his vendee was fit for the use for which it was sold and purchased, and that the vendor is liable to his vendee for a breach of this warranty. Swift & Co. v. Aydlett, 192 N.C. 330, 135 S.E. 141; Poovey v. Sugar Co., 191 N.C. 722, 133 S.E. 12; Swift & Co. v. Etheridge, 190 N.C. 162, 129 S.E. 453." Tomlinson & Co. v. Morgan, 166 N.C. 557, 82 S.E. 953; Ward v. Sea Food Co., 171 N.C. 33, 87 S.E. 958; Corum v. Tobacco Co., 205 N.C. 213, 171 S.E. 78. "An appeal ex necessitate follows the theory of the trial." In re Parker, 209 N.C. 693, 697, 184 S.E. 532, 534. The trial theory of the case is controlling on appeal. Mercer v. Williams, 210 N.C. 456, 458, 187 S.E. 556.

The matter of implied warranty is treated in the briefs of the litigants, and the case was tried on this theory in the court below. The defendants' contentions will not now be considered on this record-that in no event could plaintiff recover.

The plaintiff alleged that the damage to him was caused by a breach of an implied warranty in the sale of certain 12-gauge scatter-load gun shells; that one when shot by him bursted the gun and caused serious injury to his left hand and thumb. The defendants in answer say: "It is admitted that the plaintiff's gun exploded, and that his left thumb and hand were hurt, and that he suffered pain and some expense for medical attention, etc. It is particularly denied that this occurred from any negligence on the part of the defendants, or any breach of warranty, and in connection therewith the defendants allege that they are informed, believe and allege that either the plaintiff's gun was defective, or that the plaintiff was negligent in getting some obstruction in said gun, and in shooting the same with an obstruction in it."

The facts: The plaintiff bought the shells on December 24, 1934, from defendants, and on the next day (Christmas) he and his friend W. P. Emerson went hunting. He testified: "When we got up to where we were going to park, (Currie) and Mr. Emerson took my gun out of this case here while I got my shells out and got my coat on, and I broke the gun open and put two of these shells in my gun. * * * We walked on behind the dogs, I should say 300 yards from where we got out of car, and the dog pointed. * * * Mr. Emerson was to my left, and I was on the right. I shot the right barrel and it made a terrific explosion, it was unusually heavy, and I shot the left barrel and it blew this piece of shell through my hand and blew my arm away from the gun. * * * I cleaned it and the barrel was as bright as a new silver dollar. I examined it to see its condition and found no defects whatever. * * * Mr. Emerson was shooting a Remington automatic gun, 20-gauge I think it is. I had seen his gun, and he told me he was shooting those Nitro Club Scatter Load shells, loaded with No. 8, manufactured and put up by the Remington Arms Company. * * * I was opening my box of shells and getting on my hunting coat and putting some shells in my hunting coat while Mr. Emerson was getting my gun out of the case." On recall, he testified: "Mr. Emerson got the gun out of the case while I was putting some shells in my pockets. After Mr. Emerson handed me the gun and before I put the shell in it, I opened, or unbreached it, held it up to the light and looked through it through force of habit to see that there was nothing in the barrel, and there was nothing in the barrel."

W. P. Emerson testified in corroboration of plaintiff, as to his going hunting with him and as to the explosion, and on cross-examination testified: "When we got up there he was putting this box of shells out and opening it and he broke the seal, and was putting the shells in his hunting coat pocket. I took his gun out of the case and was looking at it. I am under the impression that I broke it, but I cannot say definitely. * * * I don't remember when I loaded my gun. I did not drive up there with it loaded. After we stopped, while he was getting his coat on and putting shells in it, I was getting out the gun. I loaded mine sometime about that time as we started off. I was shooting 20-gauge Remington Nitro-Scatter Load Shells."

The defendants offered in evidence W. T. Ashcroft, superintendent of the loading department of the Remington Arms Company, who testified, in detail, the precautions that are taken in loading these shells; that it was impossible to overload one; that if an overcharge of powder should get in a shell the machine would stop, etc.

W. A. King testified for defendants:

"I am employed by the Parker Gun Company, in the manufacture of Parker guns. I have been with the Parker Gun Company over 46 years. I am supervisor of quality, responsible for the proper manufacture and quality of the guns manufactured. I first learned the mechanical trade, was tool maker, and took up die sinking, and was placed in charge of forging of all parts; then I was placed in charge of the machining of all parts; in 1912, I was made Assistant Superintendent, and in 1914, Superintendent, and a few years after that Works Manager, in charge of the entire plant. In my work I have made guns and the different parts and have tested them. I have made all parts that go into a gun, or had them made under my immediate supervision." The court below held King was an expert on shotguns.

"At the request of Gregg Brothers, I came down here previous to this and made an inspection of this gun of Mr. Keith's, in the presence of Mr. Keith, and of me and of Judge Williams and Judge Bryan, in Mr. Wright's office. This is the same gun that I then inspected.

Q. From your experience, state what you see there from your observation of that burst, that indicates anything about the cause of the burst? A. A distinct swell, or ring, running around the barrel (which the witness points out to the jury). There is evidence of foreign material. I have got a glass, and in looking at it I see it is brass. It is right here on the break; that is a difference in color; it is yellow. (Witness points it out to the jury.)

Q. From the evidence of that you see there, and have just shown there on that gun, what, in your opinion, was the cause of the gun bursting?

Judge Bryan:

Objection to the form of the question.

Court Sustained, but if you will ask...