Russell v. George Rose & Co., Inc.

War I rifle from an army surplus retailer, hereinafter called “Russell.” The gun was defective and exploded the first time Reynozo fired it, injuring him. The defect, “excessive head space,” was latent; only an expert could detect the four one-thousandths of an inch excess. The condition was aggravated by the presence of eosmaline, a preservative used at that time in the shipment of used-armament.

Reynozo. filed an action against three defendants, Russell, the retailer, George Rose

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Company, Inc., the wholesaler (hereinafter referred to as “Rose”), and Interarmeo Limited, an importer and wholesaler of arms. The manufacturer was not made a party to the action for the reason that before Interarmeo bought the shipment of guns from a foreign, government and imported them, the original bolts had been replaced with ones that did not fit properly. The record does not disclose who reconditioned the rifles.

Reynozo, the plaintiff consumer, recovered judgment in a jury trial, against the three defendants.

Appellant Russell, the retailer, cross-complained, in the original action, against his supplier, Rose, and against the importer, Interarmeo, to recover by way of indemnity any amount that Reynozo might recover from Russell on the complaint;. Rose, in turn, filed a cross-complaint against Interarmco for any amount it might be required to pay as a result of Reynozo’s action.

In plaintiff’s action for damages, the jury was instructed upon both the doctrine of strict liability and the law of war

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ranty. It is impossible to tell under which theory the jury held all three defendants liable as a general verdict was. returned in favor of plaintiff, and no special verdicts were requested.

After the judgment was entered and each of the three defendants paid one-third thereof, the cross-complaints for indemnity were submitted, upon the record, to the trial judge who had heard the case.

On these appeals there is some discussion by counsel as to whether the jury based its verdict upon the theory of warranty or upon the doctrine of strict liability. This speculation is beside the point. Although the cross-complaints were submitted on the record of the plaintiff’s case, the decision of the trial judge that liability rested upon the law of strict liability is tantamount to a judgment on a trial de novo-, a judgment -amply supported by the evidence. In the minute order for judgment, the judge said that each supplier was equally culpable and, by denying each a right to recover from the others, impliedly found that none of the defendants was entitled to indemnity from the others.