BAKER
v.
ROSEMURGY.
Docket No. 686.
Michigan Court of Appeals.
Decided September 13, 1966.*197 Messner & LaBine (Walter T. Dartland, of counsel), for plaintiff.
Wisti & Jaaskelainen, for defendant Gamble-Skogmo, Inc.
Clancey & Hansen (Walter L. Hansen, of counsel), for defendant Olin.
FITZGERALD, J.
On November 29, 1961, plaintiff was deer hunting in the woods in Ontonagon County, his rifle's safety mechanism allegedly in the "on" safety position. In the course of the hunting trip, plaintiff fell, the rifle dropped, struck the ground and discharged, inflicting severe and permanent injuries to plaintiff's legs.
Plaintiff brought suit against those involved in the manufacture and sale of the rifle which he had originally purchased in 1959, claiming the safety mechanism was defective. The complaint states that the rifle was manufactured by defendant Olin, sold by Olin to defendant Gamble-Skogmo, Inc., which in turn supplied the rifle to defendant Rosemurgy, from whom the rifle was purchased by plaintiff.
Plaintiff had used the rifle for deer hunting during the seasons of 1959, 1960 and 1961, his injury occurring during the 1961 season.
Plaintiff's complaint claimed the rifle was defective when he bought it and set forth 9 counts sounding in negligence, breach of warranty, and strict liability in tort. Demand for a jury trial was made and in the course of preparation for trial, defendants took plaintiff's deposition. On the basis of this deposition, defendant Olin moved for dismissal under GCR 1963, 116, supplementing the motion to make it a motion for summary judgment under GCR 1963, 117, and it was so treated by the court. Similar motions were made by the codefendants and no counter-affidavits *198 were filed by plaintiff. Summary judgment was entered in favor of all defendants, a motion for rehearing filed by plaintiff was denied, and appeal was brought to this Court.
The question on appeal is whether the trial court properly granted summary judgment on the issues of negligence and contributory negligence, and on the issues of warranty and strict liability in tort based upon plaintiff's testimony in his adverse discovery deposition or whether that deposition established a jury-submissible issue of fact.
Plaintiff contends that an issue arises from his own deposition since some of his answers tend to be equivocal and conjectural. He says in effect that he is not positive beyond a doubt that the weapon was defective and was reluctant to ascribe any seeming faults to the weapon itself, but that he withheld judgment because his own physical condition might have caused the difficulty.
A sampling of the general tone of the transcript will reveal that there was little doubt in plaintiff's mind but that something was wrong with the safety mechanism on the rifle, indeed his doubts appear to have been substantial.
"Q. And knowing that there was something wrong with the safety you still went ahead and paid for the rifle, isn't that right?
"A. That's right. Knowing in my mind that there was something wrong."
Later plaintiff explains the circumstances at the time of the accident:
"Q. When you fell you were standing, right. Is this true or false?
"A. That's true.
"Q. Your wife was not anywhere near you when you fell; true or false?
*199 "A. Well, due to the condition of the gun, I refused to hunt and have her in the immediate vicinity. * * *
"Q. Even, Mr. Baker, when you were walking here on the by-path out to the woods you were very much afraid of the gun?
"A. Yes sir."
The doubts that plaintiff expresses and which are advanced in the argument that there is a jury-submissible issue seem pale in light of such testimony.
"Q. Why didn't you write to Winchester or go to Mr. Rosemurgy and say, `there's something wrong with the rifle'?
"A. There was a little question in my mind whether it was me or the rifle. * * *
"Q. Were you satisfied with this rifle after the hunting season of 1959?
"A. In all respects except that. It was a beautiful gun, and I loved it.
"Q. Did you think you should do something about the safety device?
"A. Yes, I did.
"Q. Did you do anything about it?
"A. But I didn't know, and I waited until I'd try it the next year and see if it was me."
The record is void of any testimony beyond his unsubstantiated doubts which would be sufficient to make the issue of contributory negligence a jury-submissible issue and not the proper subject for a summary judgment. In general, his statements admitting knowledge of a defect in the rifle for 3 years prior to the accident, his failure to communicate this to anyone, all in the light of his admitted expertise in the use of a rifle over a period of 40 years, adds up to contributory negligence as a matter of law. It is noted that this case does not involve a summary judgment based on conflicting or contradictory *200 depositions, but rather is based upon testimony presumptively most favorable to plaintiff, his own.
On the subject of summary judgment, we can add little to the definitive holding of Durant v. Stahlin (1965), 375 Mich 628, nor the application thereof by this Court in Dionne v. Pierson Contracting Co. (1965), 2 Mich App 134, and Beck v. Delta Recreation Corporation (1966), 2 Mich App 518.
Establishment of plaintiff's contributory negligence disposes of his suit in the 3 areas in which his complaint sounds, i.e., negligence, warranty, and strict liability in tort. That it disposes of the negligence cannot be questioned. On the matter of warranty, we recognize that this case was decided prior to Piercefield v. Remington Arms Company, Inc. (1965), 375 Mich 85. There, however, the defect was unknown. In the case before us, the plaintiff deliberately used for 3 years a weapon which he knew to be defective, a consideration which played no part in the decision in Piercefield.
Plaintiff's theory of strict liability in tort falls also. Even if the tests set forth in the 2 Restatement of the Law of Torts, 2d, § 402a, for this special form of liability were applied to a rifle, plaintiff's own conduct again defeats a cause of action. Comment in subsection (n) of the topic points out that "if the user or the consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery."
The summary judgment based on plaintiff's testimony in the discovery deposition was proper under these circumstances as to all defendants and is affirmed. Costs to appellees.
HOLBROOK, P.J., and J.H. GILLIS, J., concurred.