Schuster v. Steedley
| Decision Date | 01 July 1966 |
| Citation | 406 S.W.2d 387 |
| Parties | Owen N. SCHUSTER, Appellant, v. Nathan R. STEEDLEY, Appellee. The SUTCLIFFE COMPANY, Appellant, v. Owen N. SCHUSTER, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Joseph E. Stopher, A. J. Deindoerfer, Boehl, Stopher, Graves & Diendoerfer, Louisville, for Schuster on both appeals.
Kent McElwain, McElwain, Dinning, Clarke & Winstead, Louisville, for Sutcliffe Co.
Raymond C. Stephenson, Louisville, for Steedley on both appeals.
The appellant Schuster's wife purchased and gave to him on his birthday, September 1, 1960, an old British military rifle she had seen advertised in a newspaper by The Sutcliffe Company for $9.95. Seven months later, on April 1, 1961, as the gun was being fired by a youngster under Schuster's supervision, a part of the breech bolt blew off and one or more of the fragments struck the appellee Steedley in the right eye, resulting in loss of the eye.
Steedley sued Schuster, alleging in substance that the cause of the accident was Schuster's negligence in loading the gun. After the one-year statute of limitations, KRS 413.140, had run on any claim Steedley might have asserted against Sutcliffe, by leave of court Schuster filed a third party complaint against Sutcliffe for indemnity in whatever amount might be awarded against him in favor of Steedley, alleging that the cause of the accident was a defective and dangerous condition of the rifle existing at the time of the sale to Mrs. Schuster, which condition was known to or should have been discovered by Sutcliffe. Sutcliffe answered and denied negligence but did not raise the question of whether the third party complaint stated grounds upon which relief could be granted. Cf. CR 12.02.
Over Sutcliffe's objection the two claims were tried together, and the jury returned a verdict awarding Steedley $37,100 against Schuster and finding for Schuster on his third party complaint against Sutcliffe. At Sutcliffe's request the jury was directed to return to the jury room and make a finding as to whether the cause of the accident was the ammunition, a defect in the gun, or both. Accordingly, the verdict was supplemented as follows: 'We, the jury, feel that both the gun and the ammunition were at fault in this case.'
Both Schuster and Sutcliffe made appropriate objections to the instructions and presented timely motions for directed verdicts, for new trials, and for judgments n.o.v., all of which were overruled. Schuster appeals from the judgment against him in favor of Steedley, and Sutcliffe appeals from the judgment requiring it to indemnify Schuster.
The gun in question was a .303 calibre Lee-Enfield bolt-action rifle manufactured in 1916. It was one of a number of such weapons Sutcliffe had purchased from another dealer. Sutcliffe advertised, 'These guns have been used by the British Army and are all in excellent firing condition,' though it had not inspected them. The guns were sold out of the crate in which Sutcliffe had received them, still covered with a preservative grease. Schuster fieldstripped the rifle his wife had given him and made some modifications to the stock and other parts but did not alter any of its operating mechanism. He was a gun enthusiast but not a firearms expert. The gun was old and much-used, and although there is substantial evidence that it was in a worn-out and unsafe condition that could and would have been discovered by Sutcliffe if its gunsmith had inspected it, we think it can be fairly said that Schuster's qualifications were not such that he could or should have observed these defects. The only basis for liability on Schuster is the theory that the ammunition was overcharged or, possibly, that at the time of the accident a bullet from the previous firing of the rifle was still lodged in the barrel.
Schuster had fired the gun about 1,000 times during the 7-month period it had been in his possession. The first 200 times or so he had used standard ammunition, but eventually he bought a hand-loading kit and a Lyman instruction handbook, after which he employed used shells, made his own bullets, and loaded the cartridges himself. For military purposes the standard charge, using a 200-grain cast bullet, would be approximately 42 grains of progressive or slow burning powder, but the cartridge may be loaded with a smaller quantity of fast burning powder. Schuster, following the Lyman handbook, was using Hercules 2400, a fast burning powder. The recommended quantity of this powder was 21 grains, but from experience he learned that 21 grains were more than he needed for target shooting, and some time prior to the accident he had reduced the charge to 12 grains, which is considered a light load. None of these procedures, accurately executed, is negligent, but the handloading operation must be conducted with meticulous care. 12 grains of the 2400 powder occupy only 26% of the space in the cartridge case. Should the case inadvertently be filled with 24oo powder, amounting to 42 grains or more, the charge would be so excessive as to blow off that part of the bolt head on which the cartridge extractor is mounted. This was demonstrated by tests made on two similar rifles.
There was ample evidence from which the jury reasonably could have found that the cause of the accident was the defective condition of the gun, existing at the time it was sold by Sutcliffe to Mrs. Schuster. However, assuming further that Sutcliffe was negligent in failing to inspect for and discover this condition, cf. Gaidry Motors v. Brannon, Ky., 268 S.W.2d 627, 629 (1954), we are of the opinion that Schuster cannot recover from Sutcliffe by way of indemnity.
Indemnity is allowed in a negligence case when one party's liability has resulted from the primary fault of another. Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165 (1949). The only negligence by Schuster that Steedley alleged or sought to prove was in the loading, and that was the only theory on which the instructions authorized a recovery against Schuster. Hence Schuster's liability did not rest upon any condition for which Sutcliffe was responsible or at fault.
If, as the jury may have intended to say, the accident resulted from two causes, a defective condition of the rifle and an improper loading, neither of which...
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