Remington Arms Company, Inc. v. Wilkins

• Decision Date: 09 February 1968
• Docket Number: No. 24528.,24528.
• Citation: 387 F.2d 48
• Parties: REMINGTON ARMS COMPANY, INC. (PETERS CARTRIDGE DIVISION), Appellant, v. William W. WILKINS, III, a Minor, Etc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

387 F.2d 48 (1967)

REMINGTON ARMS COMPANY, INC. (PETERS CARTRIDGE DIVISION), Appellant, v. William W. WILKINS, III, a Minor, Etc., Appellee.

No. 24528.

United States Court of Appeals Fifth Circuit.

December 13, 1967.

Rehearing Denied February 9, 1968.

W. H. Sadler, Jr., and W. J. Sullivan, Jr., Birmingham, Ala., for Remington Arms Company, Inc. (Peters Cartridge Division), Sadler, Sadler, Sullivan & Sharp, Birmingham, Ala., of counsel.

William B. Fernambucq, Charles A. Stewart, Jr., Birmingham, Ala., William W. Wilkins, III, Huie, Fernambucq & Stewart, Birmingham, Ala., of counsel.

Before COLEMAN and GOLDBERG, Circuit Judges, and HANNAY, District Judge.

COLEMAN, Circuit Judge:

The plaintiff-appellee sued the Remington Arms Company for personal injuries, including the loss of an eye, when a cartridge manufactured by the company failed to fire and subsequently exploded upon ejection from a rifle. There was a jury verdict for the plaintiff in the sum of $68,333 and judgment accordingly. We affirm.

The case went to the jury on the sole issue of manufacturer's liability under Alabama law. The issue may best be stated by copying from the agreement of the parties at the pre-trial hearing:

"As against Remington, contending that it was guilty of negligence in the manufacture or design of such cartridge, plaintiff insists that it knew of its dangerous potential, knew or reasonably should have known that the user would not realize the danger, and failed to use reasonable care to safeguard against the danger or to inform the user of the facts which made it likely to be dangerous."

Appellant relies for reversal on the rule that a manufacturer is under no duty to warn of the possibility of injury to a user of a product where the type accident which occurred cannot be reasonably foreseen and further relies upon the additional principle that testimony which is contrary to the laws of science and contrary to common sense is of no evidentiary value and thus cannot raise an issue for jury determination, citing Rota v. Combs, 267 Ala. 50, 99 So.2d 692; King v. Brindley, 255 Ala. 425, 51 So.2d 870. Quoting the appellant, "The heart and soul of this appeal lies in the aplant's contention that there was insufficient proof of negligence on its part to submit the case to the jury".

This being a diversity suit we must apply to these contentions the test of whether there is a rational basis in the record for the jury's verdict, Planters Manufacturing Company v. Protection Mutual Insurance Company, 5 Cir., 1967, 380 F.2d 869, cert. denied 389 U.S. 930, 88 S.Ct. 293, 19 L.Ed.2d 282 November 7, 1967; Liberty Mutual Insurance Company and Monsanto Chemical Company v. Falgout, 5 Cir., 1967, 386 F.2d 248 November 17, 1967.

The Alabama law on manufacturer's liability is clear.

One of the earlier cases was Altorfer Bros. Co. v. Green, 236 Ala. 427, 183 So. 415 (1938). Mrs. Green brought suit against the manufacturer of a washing machine for injuries sustained when her hand was caught in a wringer. The Alabama Supreme Court approved the rule, "If it the manufactured product is known by defendant to be imminently or inherently dangerous when used in the customary manner, due care must be taken to acquaint the public of such danger, though it is not defective".

The next year, the Alabama Supreme Court decided Miles v. Chrysler Corporation, 238 Ala. 359, 191 So. 245, in which it stated,

"It is to be deduced from the cases of Sterchi Bros. Stores v. Castleberry, 236 Ala. 349, 182 So. 474 and Altorfer Bros. Co. v. Green supra that the rule announced was that a manufacturer who, without giving notice of its character or quality, supplies or delivers to another a machine or article which at the time of delivery he knows to be imminently dangerous to the life or limb of anyone who may use it for the purpose for which it is intended, is liable to any one who sustains injury from its dangerous condition whether he has any contractual relation with him or not".

Further elaboration is found in Defore v. Bourjois, Inc., 268 Ala. 228, 105 So.2d 846 (1958):

"The complaint, as finally amended, was framed, and the cause was tried, on the manufacturers liability doctrine. This doctrine applies in those limited cases where there is no privity of contract between the ultimate user and the manufacturer and where the manufacturer has negligently placed on the market a product which is inherently or imminently dangerous to human life or health, or which, although not dangerous in itself, becomes so when applied to its intended use in the usual and customary manner. Where the user thus sustains an injury which is the natural and proximate result of this negligence in the manufacturer or sale (emphasis added) of the article and if the injury might have been reasonably anticipated, then the manufacturer is liable to the user under the manufacturers liability doctrine. 65 C.J.S. Negligence § 100(b); Miles v. Chrysler Corporation, 238 Ala. 359, 191 So. 245; Altorfer Bros. Co. v. Green, 236 Ala. 427, 183 So. 415; Sterchi Bros. Stores v. Castleberry, 236 Ala. 349, 182 So. 474; Crane Co. v. Davies, 242 Ala. 570, 8 So.2d 196; Jefferson Standard Life Ins. Co. v. Watson, 242 Ala. 181, 5 So.2d 639; Jones v. Gulf States Steel Co., 205 Ala. 291, 88 So. 21, citing and discussing MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916C, 440; Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A.L.R. 667 and 672."

The Court stated in the course of the opinion that gunpowder naming others is an inherently dangerous article.

The latest case to come to our attention is Norton Company v. Harrelson, 278 Ala. 85, 176 So.2d 18 (1965). After reaffirming the principles above discussed, the Alabama Supreme Court said:

"Contrary to appellant\'s contention, the doctrine of manufacturer\'s liability does not require proof of a specific defect in the article itself citing Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 190 F.2d 825."

This being the Alabama law, we now consider the facts of the case, giving the appellee, on disputed issues, the benefit of the jury verdict.

On December 28, 1964, appellee, twenty years of age, was at home in Birmingham on leave from the Navy. He testified as follows:

At a department store he purchased two boxes of .22 Remington long rifle cartridges. The containers carried no warning as to precautions to be exercised in case of mis-fire or hang fire. Thereafter, using a Mossberg semi-automatic rifle, which he had fired on prior occasions, Mr. Wilkins shot about nineteen rounds into a dirt bank, without mishap. He pulled the trigger again, heard it snap, but the rifle did not fire. He brought it down from his shoulder and started opening the breach. At a point when he had succeeded in pulling the bolt back about 7/16 of an inch, which allowed him to see in the bolt and see the cartridge, there was a flash of light. He testified, "I could see the cartridge before it went off. I saw it as it went off".¹ By later re-enactment of the episode it was demonstrated that approximately five seconds elapsed between the snap and the flash. He categorically denied that the bolt slipped from his hand and caused the cartridge to fire slip fire.

A fragment of the exploding cartridge pierced Wilkins' left eye. He was hospitalized for nineteen months during which time the eye was surgically removed.

His father testified that he had purchased the rifle new, that it was between fifteen and twenty years old. He further testified that prior to the time of this accident, December 28, 1964, the rifle had never misfired while he was using it, and that he had never had any mechanical difficulty with it. On the day of the accident, after returning from the hospital where his son was being treated, Mr. Wilkins found the rifle where it had been tossed after the explosion. He picked the gun up and started to open it. There was a piece of brass in the shaft, with a "gapping" hole in it, which turned out to be the exploded cartridge, with the bullet gone. The bullet was never found. This witness further testified that the rifle had not been used or oiled for a period of six or eight months before the accident.

Edward S. Watts, III, was called as an expert witness for the plaintiff. He had spent four years in the Air Force as a weapons mechanic. About three years previously, after 2760 hours of actual instruction, he had graduated from the Colorado Trade School as a gunsmith. He had worked as a gunsmith in Birmingham during hunting season and pursued other occupations in between. His business in Birmingham had been restricted to rim fire rifles and shotguns. He stated that .22's constitute ninety per cent of all rim fire weapons. In a rim fire, the primer is in the rim and the firing pin strikes the rim and ignites the primer which detonates the weapon. In a Mossberg rifle the firing pin strikes at the top of the rim. About two months prior to the trial this gunsmith "broke down" and inspected the Mossberg rifle used by young Wilkins on December 28, 1964. He also examined the exploded cartridge hull. He found the gun to be in "very good condition". He found the exploded cartridge "had been struck a very good blow by the firing pin. The cartridge had been ruptured". He was of the opinion, from examination of the rifle and the cartridge, that at the time the firing pin struck the rim the bolt was fully closed. Additionally, he was of the view that at the time the cartridge exploded it was only partly chambered. As a matter of expert opinion, this testimony tended to corroborate plaintiff's eyewitness testimony as to what actually happened. Mr. Watts had no training or knowledge in the manufacture of ammunition.

The plaintiff-appellee being alone at the time of the accident it was, of course, impossible to contradict his version by eyewitness testimony. Consequently, Remington staked its defense on the testimony of...