Lopez v. Heesen

• Decision Date: 22 August 1961
• Docket Number: No. 6760,6760
• Citation: 69 N.M. 206,365 P.2d 448,1961 NMSC 122
• Parties: Jesse G. LOPEZ, Plaintiff-Appellant, v. Robert HEESEN and Sears, Roebuck and Company, a corporation, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 448

365 P.2d 448

69 N.M. 206

Jesse G. LOPEZ, Plaintiff-Appellant, v. Robert HEESEN and Sears, Roebuck and Company, a corporation,

Defendants-Appellees.

No. 6760.

Supreme Court of New Mexico.

Aug. 22, 1961.

Rehearing Denied Oct. 31, 1961.

Smith, Kiker & Kitts, and Ramon Lopez, Albuquerque, for appellant.

Sutin & Jones, Albuquerque, David R. Hardy, Kansas City, Mo., for appellees.

CHAVEZ, Justice.

Appellant, Jesse G. Lopez, originally filed suit against appellee, Robert Heesen, alleging that on October 15, 1958, Heesen unlawfully, violently, maliciously and feloniously assaulted and shot appellant with a shotgun, thereby inflicting dangerous and painful wounds and injuries to appellant, causing him great bodily and mental pain and anguish, all to his damage in the total sum of $80,000, which included $25,000 punitive damages.

Appellee, Heesen, answered denying the allegations of the complaint and thereafter appellant filed a demand for jury trial. By stipulation of appellant and appellee, Heesen, appellee, Sears, Roebuck and Company was joined as a party-defendant. Appellee, Sears, Roebuck and Company, will hereinafter be referred to as appellee 'Sears.' Thereafter two amended complaints followed before the third amended complaint was filed, alleging that appellee, Sears, was engaged in the design and manufacture of hunting firearms, including the Higgins Model 51, Cal. 30.06 rifle, and was also engaged in the selling of firearms in Albuquerque.

In was also alleged that on October 14, 1958, appellee, Sears, sold to appellee, Heesen, one of said Higgins Model 51 hunting rifles; that said rifle was negligently designed or manufactured by appellee, Sears, in that the safety mechanism moved readily and in a dangerous manner from a 'safe' to a 'fire' position. In addition, it was alleged that the rifle in this dangerous condition known to appellee, Sears, was sold to appellee, Heesen, with the knowledge that it would be used for hunting purposes and that appellee, Sears, negligently failed to warn appellee, Heesen, of the dangerous and defective condition of the rifle.

The complaint further alleged that on the afternoon of October 15, 1958, in Colfax County, New Mexico, appellee, Heesen, negligently permitted the rifle to discharge while hunting and that as a proximate result of the joint and concurrent negligence of both appellees, appellant sustained a severe and disabling wound and injury to his chest, requiring hospital and surgical care. Appellant demanded damages in the amount of $55,000 against both appellees, jointly and severally.

Appellee, Heesen, answered denying the allegations of the third amended complaint. Appellee, Sears, also answered denying the allegations and raising additional affirmative defenses, to-wit: That appellant's injuries were caused by an unavoidable accident; that the negligence of appellee, Heesen, was the sole cause thereof; that the rifle involved was of a recognized quality and of proper design and functioned properly by all commercial sporting arms standards when used with reasonable care; that rifles of this type had been manufactured by the millions and used by hunters generally and by the government of the United States and foreign countries; that the safety mechanism and its qualities were patent and obvious, and had been seen and inspected by Heesen prior to the accident; that Heesen knew of the tendency of the safety mechanism to come off safety to 'fire' position while hunting in heavy brush and climbing up and down mountain terrain when pressure was applied to the safety mechanism; that appellee, Sears, had no duty to warn appellee, Heesen, of the method of operation and use of the safety mechanism; and that it could not have been foreseen that appellee, Heesen, would continue to hunt in heavy brush and mountainous terrain knowing that the safety mechanism would come off safety without taking proper precautions to handle the rifle in a reasonable manner.

The jury returned its verdict finding the issues for both appellees and against appellant. Judgment wsa entered for appellees and this appeal followed. Appellant abandoned any contention that the verdict in favor of Heesen was erroneous and this appeal concerns only appellee, Sears.

The facts are substantially as follows. In the early afternoon of October 14, 1958, appellee, Heesen, an Air Force officer, purchased a J. C. Higgins Model 51, 30.06 rifle from the store of appellee, Sears. Said rifle has a bolt action known more particularly as a 'Mauser type action' with which Heesen was familar. Heesen, although experienced in hunting, was not familiar with the Higgins Model 51 and had never used such a rifle. The safety mechanism on the rifle is what is known as a 'Class 1' safety, meaning that it interrupts the firing pin directly. The safety lever is mounted on the left side of the gun to the rear of the bolt assembly. It is a two-position safety with the action locked when the safety lever is in a raised position. To release the safety, you push the safety lever to the left and down to a horizontal position and the gun is then ready to fire.

Heesen first telephoned appellee's store about obtaining a Higgins rifle which they advertised. Later he went to appellee's store and purchased the rifle. At the time of the purchase Heesen was given an instruction pamphlet which he read. Said pamphlet explained the composition of the rifle and gave operating instructions, including the method to be pursued to make the gun 'safe,' i. e., how the gun is put in a safety position and how it may be released and have the gun ready to fire. It appears that Heesen first talked to a salesman, John C. Villella, over the telephone and requested that the rifle be put aside for him. However, another salesman, Roger Perkins made the actual transfer of the rifle to Heesen. Perkins's whereabouts is unknown and nothing is known as to Perkins' conversation with Heesen. Villella did not give Heesen any instructions as to the use of the safety mechanism. There was a telescopic sight advertised for sale for use with this rifle but Heesen did not care for the sight and did not purchase it.

Immediately after the purchase of the rifle, Heesen left for a deer hunting trip in an area known as Ute Park near the town of Eagle Nest in Colfax County. He arrived at Ute Park that night and began hunting the next morning on October 15, 1958. Heesen hunted without success and had seen no game up until the time his gun discharged and appellant was wounded shortly after 3:00 P.M.

When Heesen commenced hunting that morning he placed a live cartridge in the chamber and placed the gun on safety position. He traveled a good deal during the hours before the shooting and on one or two occasions he discovered the gun off safety position. This was when he had come down a long hill covered with rocks and boulders and he assumed that he had hit it against a rock or something. Thereafter Heesen checked the safety position on frequent occasions. Heesen carried the gun on his right shoulder with the sling at port arms or ready position, with his left hand on the forearm of the gun and his right hand on the stock, and by the forearm of the gun with his right hand at the 'balance' of the rifle. In each of these positions the safety lever was toward Heesen's body or right leg. Heesen changed the position in which he carried the rifle during the course of his walking up and down mountain slopes. He also carried it in a different position in going through brush and in claimbing or stepping upon rocks. Although the gun moved from 'safe' to 'fire' position at least twice during the hours before the shooting, Heesen was not aware of this occurrence. Shortly before the shooting, Heesen had been sitting on a knoll for about twenty minutes checking the wind and watching for deer. While sitting on the knoll he checked or observed the safety lever on the rifle several times and it was on safety position. At a time not more than ten minutes before the shooting he left the knoll and started down a draw which ran in a southerly or southwesterly direction. Heesen was not sure whether he checked the safety lever after he left the knoll and he was carrying the gun on his shoulder by the sling as he proceeded down the draw toward the point where the gun discharged.

At about this time, appellant, Jesse G. Lopez, was sitting next to a tree about fifty yards away from the point where Heesen's gun subsequently discharged. Appellant, in the company of two hunting companions, Bennie Aragon and Ramon Barela, had gone from Albuquerque to Ute Park on the afternoon of October 14, 1958, and after spending the night in the area, commenced hunting on the morning of October 15th, the first day of deer season. After hunting all morning and again in the early afternoon, the party stopped to rest at the location where appellant was shot. It was then about 3:00 P.M. and appellant, dressed in bright hunting clothes, was sitting about twenty feet away from his two companions and scanning the area for game. After sitting there about four or five minutes, appellant observed an object to his right which was moving but which he could not identify. This was shortly before the shooting.

As appellee, Heesen, proceeded down the draw after leaving the knoll, he heard a 'rustle' and saw a deer go between some trees to the left of his line of travel about 50 to 100 yards away. The deer, when observed, was in a direction about 80 or 90 degrees to the left of where appellant was sitting and Heesen did not observe appellant or his companions before the shooting. At about this time Heesen removed the rifle from the sling on his shoulder and held it by his right hand at or near the balance position of the weapon. He then came to a dead log in his path which was about eight or ten inches in diameter and was lying horizontally a foot or less off the ground with several dead limbs sticking upward from...