Love v. Zales Corp., Inc. , 1985 Tex. App. LEXIS 6481 ( 1985 )

689 S.W.2d 282 (1985)

Thomas P. LOVE et al, Appellants,
v.
ZALES CORPORATION, INC. et al, Appellees.

No. 11-84-260-CV.

Court of Appeals of Texas, Eastland.

March 21, 1985. Rehearing Denied April 25, 1985.

Charles A. Deason, Robert D. Earp, Schwartz, Earp, McClure, Cohen & Stewart, El Paso, for appellants.

Kevin J. Keith & C. Edward Fowler, Jr., Bailey & Williams, Dallas, Dennis L. Richard, Scott, Hulse, Marshall, Feuille, Finger & Thurmond, El Paso, for appellees.

DICKENSON, Justice.

This is a summary judgment case where the trial court agreed with defendants that: (1) the negligence cause of action was barred by the two-year statute of limitations; and that (2) the plaintiffs' pleadings alleged facts which negate their causes of action for breach of contract and for breach of express and implied warranties. Plaintiffs appeal, arguing: (1) the "discovery rule" should apply to their negligence cause of action; and (2) their pleadings state causes of action founded on breach of warranty in the sale of goods and for breach of contract, neither of which are barred by the applicable four-year statute of limitations. We affirm the summary judgment.^[1]

The lawsuit was filed on October 21, 1982, for the wrongful death of Theresa Love and for personal injuries to Louise Love and Cliff O'Gurian.^[2] The pleadings and the undisputed facts show that Ronald P. Love used a Winchester shotgun on April 18, 1979, to kill his mother, Theresa, and to wound his sister, Louise, and his brother-in-law, Cliff O'Gurian. The Winchester shotgun had been purchased from defendants^[3] on October 26, 1978.

The pleadings and the undisputed facts also show that when Ronald P. Love purchased the shotgun, he disclosed on the "Firearms Transaction Record" that he had "been committed to a mental institution." See the Appendix to this opinion. Even though the form clearly states that a person who answers that question in the affirmative "is prohibited by Federal law from purchasing and/or possession a firearm," the salesclerk completed the form and sold the shotgun. The salesclerk was clearly negligent^[4] in selling the shotgun to a person who disclosed that he had previously been committed to a mental institution.

Plaintiffs have briefed three points of error. In their first two points, they argue that the trial court erred in granting summary judgment because their pleadings stated a cause of action: (Point one) founded on breach of warranty in the sale of goods to which the four-year statute of limitations of the Uniform Commercial Code applied; and (Point two) founded on breach of a written contract, as to which they were third party beneficiaries.

These points of error raise the question as to whether summary judgment on the pleadings is proper or if the matter should have been developed through special exceptions. See Texas Department of Corrections v. Herring, 513 S.W.2d 6 at 10 (Tex.1974):

This court believes that the protective features of special exception procedure should not be circumvented by a motion for summary judgment on the pleadings where plaintiff's pleadings, as here, fail to state a cause of action.

Even so, Herring recognizes the fact that: "a party may plead himself out of court; e.g., the plaintiff may plead facts which affirmatively negate his cause of action." 513 S.W.2d at 9. Even though they attempt to assert breach of implied and express warranties under TEX.BUS. & COM. CODE ANN. secs. 2.313, 2.314 and 2.315 (Vernon 1968), the facts which they have pleaded show that there was no breach of warranty. There was nothing wrong with the shotgun. See Hulsebosch v. Ramsey, 435 S.W.2d 161 at 164 (Tex.Civ.App.— Houston [14th Dist.] 1968, no writ); Hulsman v. Hemmeter Development Corp., 65 Haw. 58, 647 P.2d 713 at 721 (1982). Of course, if the shotgun had been defective, there would have been a breach of warranty. See International Armament Corporation v. King, 686 S.W.2d 595 (Tex.1985). Point One is overruled.^[5]

The "Firearms Transaction Record" shown in the Appendix is not a contract.^[6] Therefore, plaintiffs cannot be third party beneficiaries of a written contract. Consequently, TEX.REV.CIV.STAT.ANN. art. 5527 (amended August 27, 1979) is not applicable. Point two is overruled.

In their third and final point of error, plaintiffs argue that the trial court erred in granting the summary judgment "in that the discovery rule is applicable to plaintiffs' cause of action founded on negligence." We decline plaintiffs' invitation to extend the discovery rule. See Otis v. Scientific Atlanta, Inc., 612 S.W.2d 665 at 666 (Tex.Civ.App.—Dallas 1981, writ ref'd n.r.e.):

The existence of a cause of action was not concealed, and defendant was under no duty to disclose its identity to plaintiffs.

Plaintiffs knew they had been injured when the shootings occurred. They were aware that their mentally deranged relative had obtained a shotgun from someone and that he had shot his mother, his sister and his brother-in-law. While they pursued their claims against the psychiatrists and the mental institution which had treated their relative, they apparently made no effort to ascertain where he obtained the shotgun. Months later they were told by the mental patient's personal attorney that Ronald had bought the shotgun from defendants.

All of the cases cited by plaintiffs in connection with the "discovery rule" are factually distinguishable. See Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967), where the Supreme Court said: "Our holding here is limited to causes of action in which a physician leaves a foreign object in the body of his patient." The recent case of Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984), deals with the "open courts provision," TEX.CONST. art. I, sec. 13, which prevents the legislature from "cutting off a cause of action before the party knows, or reasonably should know, that he is injured." The Love family knew that it had been injured on the date of the shootings, far more than two years before this lawsuit was filed. Kelley v. Rinkle, 532 S.W.2d 947 (Tex.1976), deals with a false credit report and the one-year statute of limitations for libel and slander. The third point of error is overruled.

The judgment of the trial court is affirmed.

NOTES

[1] This appeal was transferred from the El Paso Court of Appeals to this Court on November 20, 1984. See TEX.REV.CIV.STAT.ANN. art. 1738 (Vernon Supp.1985).

[2] The plaintiffs are Thomas P. Love, Individually and as Executor of the Estate of Theresa Love, deceased; Thomas P. Love, Jr., Jean E. Love, Joan E. O'Gurian, Louise Love, and Donald P. Love, sole heirs of Theresa Love, Deceased; Louise Love, Individually; and Cliff O'Gurian, Individually.

[3] The salesclerk who sold the gun is Peter Arduini. He was employed by Cullum & Boren, Inc. which was owned at that time by Zales Corporation, Inc. That subsidiary corporation was subsequently sold by Zales Corporation, Inc. to Oshman's Sporting Goods, Inc. The salesclerk and all three corporations are named as defendants in this case.

[4] The sale was a violation of federal law. See 18 U.S.C. sections 921-928. The purchaser and the salesclerk were subject to fine and imprisonment.

[5] If plaintiffs had a cause of action for breach of warranty under Sections 2.313, 2.314 or 2.315 of the Business and Commerce Code, supra, it would not be barred by limitations. See Garcia v. Texas Instruments, Inc., 610 S.W.2d 456 at 465 (Tex.1980).

[6] This report is required by 18 U.S.C. sections 921-928.