Cite as Hulsebosch v. Ramsey, 435 S.W.2d 161 (Tex.App. 1968)

            Leonard A. Hulsebosch at al., Appellants,

                               v.

                J. Dale Ramsey et al., Appellees.

                            No. 178.

     Court of Civil Appeals of Texas. Houston (14th Dist.).

                         Nov. 27, 1968.

     A. W. Clem, Richard C. Alsup, Law Offices of Franklin R.
Navarro, Houston, for appellants.

     J. Paul Pomeroy, Jr., Houston, for appellees.

     BARRON, Justice.

     This is a suit for personal injuries filed by Leonard A.
Hulsebosch and his wife, individually and as next friends of
Leonard T. Hulsebosch, a minor, against J. Dale Ramsey and Joe
Smith, individually and doing business as Southern Sales Stores and
Southern Trading Company, defendants. The minor plaintiff was shot
with a .303 Enfield rifle by Daniel G. Taylor, a sixteen-year old
boy, while young Hulsebosch was riding his bicycle near the Taylor
home. The minor plaintiff received extensive and serious injuries
as a result of the accident.

     Suit was filed against the sellers of the involved rifle,
Ramsey and Smith, and it is alleged that the sellers were negligent
in offering for sale a deadly and lethal weapon with defective
parts to the sixteen-year old minor, Taylor, and in failing
reasonably to inspect said weapon to determine that its various
parts were fit for the purpose for which it was to be used.
Included in plaintiffs' petition also is an allegation that the
sale involved breach of an implied warranty of fitness in that the
rifle was defective in certain particulars when it was sold by
defendants.

     The trial court after a hearing granted summary judgment in
favor of the defendants based upon the pleadings, affidavits of
experts and depositions of Daniel G. Taylor, the minor, Patricia
Anne Taylor and Jennings Whitman. Plaintiffs have appealed from the
judgment of the trial court. The Hulseboschs are appellants, and
Ramsey and Smith are appellees. The appeal is based upon one point
of error, and contention is made that it was error for the trial
court to grant summary judgment in the presence of disputed factual
questions.

     Young Taylor wanted to buy his father a Christmas present and
went to appellees' store to purchase a rifle and some ammunition as
a gift to his father. The store manager, Jennings Whitman, refused
to sell the boy a rifle and ammunition because Taylor was a minor,
and the boy was told by Whitman that his father or mother would be
required to purchase the rifle for him. A short time thereafter,
Mrs. Patricia Anne Taylor, the stepmother of Daniel G. Taylor,
appeared in the store and stated that she wanted to buy a rifle and
some ammunition. Mrs. Taylor, age 24, purchased the rifle and
ammunition, and the evidence fairly shows that the purchase was for
the boy. But the rifle was to be given to the boy's father as a
Christmas present. The rifle was purchased on December 17, 1966,
and at the time of purchase, Mrs. Taylor and the boy were both in
the store. The store manager was told that the purchase was for the
boy as a gift from him to his father. The stepmother signed the
book kept by appellees to record the sales of rifles. It is without
question that Mrs. Taylor consented to the sale after appellees had
earlier refused to sell the rifle to young Taylor, because he was
a minor. The boy put up his own money to purchase the rifle and
ammunition. Appellees did not warn Taylor that the used Enfield
rifle was dangerous or tell him not to shoot anyone, nor were any
instructions given to the boy. But Taylor, who was interested in
guns, had taken a Boy Scout marksmanship course and already knew
that the rifle was a dangerous and deadly weapon.

     Mrs. Taylor and her stepson took the .303 Enfield rifle home
on December 17, 1966 and placed it under a bed. Two days later
young Taylor got the rifle from under the bed and began handling
it. He loaded the rifle with a full clip of ammunition, but because
of a defect in the cartridge container he found it difficult to
feed cartridges into the chamber. However, he was able to make the
weapon function. After handling the rifle for a while young Taylor
removed the clip, thinking he had completely unloaded the weapon.
However, he had left a live cartridge in the chamber of the rifle,
and when the boy aimed the weapon out his window and sighted-in on
young Hulsebosch who was riding his bicycle, the rifle discharged
and shot the minor appellant, causing the injuries and damages
complained of. The Taylor boy admits that he must have pulled the
trigger, and it is apparent that he failed to use the safety
mechanism of the bolt action Enfield. The sworn affidavit of
Officer Ralph O. Queen, of the Houston Police Department, contains
the following findings and expert opinion with respect to the rifle
in question:

"7. The only manner in which this firearm can be fired is to have
the safety off and depress the trigger, or to have the trigger
depressed approximately one-half and lever the safety device from
on to off.

"Due to the above findings, it is my opinion that the only manner
which this firearm can be discharged is to conscientiously (sic)
load a cartridge into breech, and to depress the trigger in one of
the manners stated in number 7."

     We have carefully considered the undisputed facts of this case
in relation to the summary judgment granted by the trial court, and
we are of the opinion that the appellee sellers of the rifle and
ammunition are not liable to the third party appellants under the
facts by reason of the independent negligent acts of the purchaser
of the rifle. Neither are we unmindful of the serious nature of the
injuries received by young Hulsebosch, nor the fact that he was
injured through no fault of his own. But in an action by the
injured third party against the sellers of a rifle, when a parent
had permitted the sale of the rifle to the sixteen-year old minor
as a Christmas gift to his father, no liability for damages can
arise on the part of the sellers in the absence of a statute
creating such liability. Texas has no such statute. Article 489,
Vernon's Ann. Penal Code, condemns the sale of a "pistol" to a
minor without the written consent of a parent or guardian, but a
pistol is to be distinguished from a rifle in that a pistol is a
concealable weapon. In any event the parent in this case gave her
written consent to the sale to the Taylor boy, and the sellers were
advised that the purchase was to be a gift to the boy's father.
Under these circumstances we cannot hold that the clearly negligent
acts of young Taylor in aiming the rifle at plaintiff and pulling
the trigger or some similar act ought to have been foreseen by
appellees, or that appellees failed to exercise ordinary care in
the sale of the rifle and ammunition.

     Appellants cite such cases as Spires v. Goldberg, 26 Ga.App.
530, 106 S.E. 585, and Mautino v. Piercedale Supply Co., 338 Pa.
435, 13 A.2d 51. But those are cases where a storekeeper had sold
weapons to much younger children in violation of various statutes
condemning the sales. Erwin v. Dunn, 201 S.W.2d 240 (Tex.Civ.App.),
writ ref., n. r. e., was a case involving the sale of fireworks to
a ten-year old boy who was injured when a piece of the fireworks
exploded in his hand. The court pointed out in that case that the
defendants were under a common-law duty not to sell an article
capable of injuring the buyer if the buyer did not know, or could
not reasonably be assumed to know, of the dangerous character of
the article. However, young Taylor admitted that he knew at the
time of sale that the rifle was a dangerous and deadly weapon, and
his stepmother consented to the sale. In the cases cited by
appellants there are two distinguishing factors, (1) the sale was
made without the consent of either of the minor's parents, and (2)
the minor was considerably younger than the sixteen-year old
Taylor, and unlike Taylor, could not be said to know of the
dangerous nature of the item in question.

     On the question of proximate cause, we recognize the rule that
the manner of the exact occurrence of the injury need not have been
foreseeable, and we do not hold that under no circumstances could
an illegal sale of firearms have been a proximate cause of
appellant's injuries. See Erwin v. Dunn, supra; Carey v. Pure
Distributing Corp., 133 Tex. 31, 124 S.W. 2d. 847. We hold,
however, that the appellees exercised ordinary care as a matter of
law under the circumstances. See Corey v. Kaufman & Chernick, Inc.,
70 R.I. 27, 36 A.2d 103 (R.I.Sup. 1944). We find no Texas cases
directly in point.

     Although appellants did not specifically complain in their
brief that the doctrine of implied warranty applies in this case,
their pleadings did include such allegations. The war surplus
Enfield was a second-hand rifle purchased at a war surplus retail
store, and the rifle was known to be a second-hand or used article
for which the Taylors paid approximately $30.00. Moreover, it is
undisputed from young Taylor's testimony on deposition and from the
affidavits in the record that there was no malfunction of the
weapon at the time it was fired by Taylor. The used military rifle
did precisely what it was designed to do when aimed at someone and
its trigger pulled. The accident occurred by reason of a failure to
operate the bolt action to unload the Enfield, and in failing to
utilize the Enfield's safety mechanism in aiming the loaded gun at
the minor appellant and in pulling the trigger. The cartridge clip
was not in good condition, but such condition did not cause the
accident. It is doubtful in a situation of this kind whether the
doctrine of implied warranty or strict liability in tort would
apply in any event. Cf. Sec. 402A, Restatement of the Law of Torts,
Second, Comment "O", p. 356.

     The judgment of the trial court is affirmed.