Warner v. Santa Catalina Island Co.

• Decision Date: 19 April 1955
• Docket Number: No. L,L
• Parties: Thomas WARNER, Jr., Plaintiff and Appellant, v. SANTA CATALINA ISLAND COMPANY; Olin Industries, Inc., also known as Western Cartridge Company, et al., Defendants, Oiin Industries, Inc., also known as Western Cartridge Company, Respondent. A. 23502
• Court: California Supreme Court

Page 12

282 P.2d 12

44 Cal.2d 310

Thomas WARNER, Jr., Plaintiff and Appellant, v. SANTA CATALINA ISLAND COMPANY; Olin Industries, Inc., also known as Western Cartridge Company, et al., Defendants Oiin Industries, Inc., also known as Western Cartridge Company, Respondent.

No. L. A. 23502.

Supreme Court of California

April 19, 1955.

Manuel Ruiz, Jr., Los Angeles, for appellant.

Crider, Tilson & Ruppe , Los Angeles, for respondent.

CARTER, Justice.

Plaintiff, Thomas Warner, Jr., appeals from a judgment of nonsuit in an action for damages for personal injuries. Plaintiff originally brought suit against Olin Industries, Inc., a corporation (aka Western Cartridge Company), and G. W. Rushmore, Amory P. Eckley, Thomas Browne, Gene Nordlund and Edward Nagle. Prior to trial, defendants Rushmore and Eckley paid plaintiff the sum of $22,000 in consideration of which plaintiff executed a covenant not to sue defendants Rushmore, Eckley and Browne. Rushmore and Eckley filed a cross-complaint against Olin Industries, Inc., for the amount expended for the covenant not to sue. Olin Industries answered, and at the beginnign of the trial, moved for judgment on the pleadings as to Rushmore and Eckley. The motion was granted, no appeal was filed and that matter is now final. The cause went to trial only against defendant Olin Industries, and it is now respondent on this appeal.

Plaintiff, on July 18, 1947, was at a shooting gallery watching one of his party shoot at a target when a particle of a bullet ricocheted and entered his eye causing him to lose the sight therein. The shooting gallery was owned and operated by Rushmore and Eckley; Nordlund, as their employee, was the actual operator of the concession. Cartridges containing bullets known as 'Kant-Splash,' used in the guns from which customers fired at various targets in the gallery, were manufactured by defendant Olin Industries.

Plaintiff alleged that Olin represented to the purchasers and users of its 'Kant-Splash' bullets that they were designed for use in short range shooting galleries and to disintegrate upon striking a metal target or backstop; that Olin was negligent in the manufacture, testing and inspection of the bullets, as a result of which he was injured.

The record shows that there was a metal backstop the width of the gallery at the back thereof, which extended from the floor to the ceiling; that from the ceiling were suspended four metal baffles between the counter and the backstop; the sides of the gallery from the backstop to the counter were metal lined; the counter was approximately 37 feet from the backstop. Targets consisted of metal owls, metal rabbits on a revolving wheel, paper bullseyes; metal cylinders and other metal bell-type objects. The backstop was pitted, rather than smooth. Small particles of metal were found imbedded in wooden portions of the shooting bench, or counter, and some were found near the counter; the metal sides of the gallery were marked or scraped; the baffles were dented. Plaintiff was approximately 40 feet from the backstop at the time he received his injury.

The particle which entered plaintiff's eye has never been removed because to do so was considered extremely hazardous. Defendant contends, but not seriously, that it might have been a portion of one of the metal targets which entered plaintiff's eye. So far as this appeal from a judgment of nonsuit is concerned, the contention appears without merit. The operator of the concession testified that by the sound he could tell whether the marksman had hit a target and there is, apparently, no evidence that the person shooting, at the time plaintiff was injured, hit any one of the objects in the gallery. Plaintiff alleged that a portion of the Kant-Splash bullet caused his injury and there is no evidence to the contrary.

Plaintiff's evidence showed that defendant had been manufacturing Kant-Splash cartridges for use in shooting galleries since 1944; that underneath the name Kant-Splash on the package of cartridges appeared the following words: 'These cartridges have special synthetic greased bullets designed to disintegrate upon striking a metal target or backstop'; that the bullets were advertised to the trade as those which would disintegrate into small particles with 'splash-backs' reduced to an absolute minimum.

Mr. Doughan, the manager in charge of sales and distribution of the ammunition manufactured by defendant, testified (by deposition) that he was aware of the fact that when customers ordered shooting gallery cartridges, 'particularly Kant-Splash' they were ordered so that they would disintegrate into powder or dust. He qualified the statement with the provision that the 'backstop (must be) in good condition'; that by 'good condition' was meant a 'smooth finish' ordinary sheet steel background. He testified that he was aware that the ordinary shooting gallery had various targets; that these targets were between the customer and the backstop. His testimony showed that he knew of no material in writing wherein 'any reference (was) made to the fact that the backstop ought to be smooth when Spatterpruf and Kant-Splash bullets (were) used in galleries'; that he knew of no warning issued by the defendant that the Kant-Splash bullets might splash back and injure a customer, or bystander.

Mr. Bellmore, the superintendent of the inspection division for defendant, testified (by deposition) that he was responsible for the qualify of the products that were being manufactured during the time of manufacture; that during the years 1946-1947 he was assistant ballistic engineer and that his duties then were to perform tests on ammunition during the course of manufacture; that he had been 'associated' with the tests on Kant-Splash bullets since that time; that the tests were indirectly under his supervision; that he usually observed the results of the tests. Mr. Bellmore testified that the material used in Kant-Splash bullets was designed to disintegrate into small particles upon hitting a hard object such as iron, steel or stone; that although he had conducted tests for the disintegration qualities of the bullets he had never segregated the particles of a disintegrated bullet to ascertain the size of the particles; that no one in the organization had done so as far as he knew; that he did not know how small the particles were; that he was not acquainted with the standard measurements used to compute the size of such particles; that defendant had no such instruments or measures; that whether Kant-Splash bullets disintegrated upon being shot at a steel, or similar hard wall, depended upon the condition of the steel backstop against which it was fired; that by 'good condition' he meant a backstop which was not pitted, and by 'not pitted' he meant no pits visible to the naked eye; that if there was any visible pitting, the particles might spatter; that he had never made any examination of actual shooting gallery backstops. Mr. Bellmore testified that even with a 'smooth, unpitted steel background, small particles will come back approximately 30 feet'; that no tests had been made of the velocity of those particles. He testified that no tests had been made on lead targets, or on warped plates, although warping would affect the amount of spatter or splash in that there would be more ricocheting and less spattering; that tests had been conducted at a distance of 40 feet from the backstop and that particles had been found to extend approximately 40 feet from the backstop even though the backstop was a smooth, unpitted one.

Mr. Frost, the manager of the Products Service Division for the defendant, testified (by deposition) that the only way of testing a bullet was after its manufacture; that out of 10,000 bullets 'probably 24' would be tested; that 200,000 Kant-Splash bullets were made per day; that testing took place once a week; that the bullets tested were not 'lotted' but were selected at random from the production; that the spatter-back tests were on approximately 100 bullets per week; that they were not able to ascertain from what machine any particular bullet came; that even if a bullet showed a great amount of spatter-back, there was no way of telling what machine it came from; that no spatter-back tests had been made on a pitted plate; that the plates used in the spatter-back tests eventually became pitted; that every time a spatter-back test was made, the plate was examined for pits and when pits were found, the plate was replaced.

Mr. Franz, assistant Works Manager for defendant, testified (by deposition) that his duties consisted of the 'Inspection Division, Explosives, and Technical Control Division and the Cartridge Division.' He testified as to the results of spatter-back tests made in 1947. The tests were made each time of 100 26-grain bullets. The result of one entire test made in that year, showed 75.8 grains at a distance from 10 to 20 feet; 14.5 grains at a distance of 20 to 30 feet, and 9.5 grains 'mostly unburned' at a distance of 30 to 40 feet. A test made a month later showed 77.8 grains at 10 to 20 feet; 21.0 grains at from 20 to 30 feet; one 6-grain piece at 20 feet and 5 grains at from 30 to 40 feet. The evidence shows that all the tests were made by the tester shooting always at a 90~angle at a distance of 40 feet; that shooting galleries average from 25 feet in length to 40 feet. A summary fo the results of the available tests made in 1947 for the approximate distance from the backstop at which plaintiff was injured, shows (February 3) a spatter-back of 9.5 grains 'mostly unburned' at a distance of 30 to 40 feet; another test (March 3rd) shows 21.0 grains at from 20 to 30 feet with one particle found at 20 feet weighing 6 grains, and 5 grains at from 30 to 40 feet; another test (April 7th) shows 88.4 grains at from 10 to 20 feet, 14.1 grains at from 20 to 30 feet, 6.5 grains at from 30 to 40 feet; another test (May 5th) shows 7.2 grains...