Abrams v. Marlin Firearms Co., 2001-CA-01613-SCT.

• Decision Date: 27 February 2003
• Docket Number: No. 2001-CA-01613-SCT.,2001-CA-01613-SCT.
• Citation: 838 So.2d 975
• Parties: Jimmy ABRAMS and Mary Abrams v. The MARLIN FIREARMS COMPANY and Gary Dedeaux d/b/a Gary's Pawn & Gunshop.
• Court: Mississippi Supreme Court

838 So.2d 975

Jimmy ABRAMS and Mary Abrams v. The MARLIN FIREARMS COMPANY and Gary Dedeaux d/b/a Gary's Pawn & Gunshop.

No. 2001-CA-01613-SCT.

Supreme Court of Mississippi.

February 27, 2003.

Charles M. Merkel, Jack R. Dodson, Clarksdale, attorneys for appellants.

James A. Becker, Jr., Jackson, attorney for appellees.

Before PITTMAN, C.J., WALLER and CARLSON, JJ.

WALLER, J., for the Court:

¶ 1. Jimmy Abrams and his wife, Mary Abrams, appeal from a Clay County Circuit Court judgment entered in accordance with a unanimous jury verdict in favor of defendants Marlin Firearms Company and Gary Dedeaux d/b/a Gary's Pawn and Gunshop. The Abrams claim that the trial court erred in admitting certain evidence and that the verdict was against the overwhelming weight of the evidence. We affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 21, 1994, Jimmy Abrams purchased a new Marlin model 336 lever action 30-30 caliber hunting rifle from Gary's Pawn and Gunshop in West Point, Mississippi. On December 30, 1994, Abrams sustained a self-inflicted gunshot wound to his right leg while inside his extended cab Toyota pick-up. The bullet entered Abrams' knee and traveled through his calf.

¶ 3. Robin Minyard, a passer-by, found Abrams lying in the middle of Waverly-Ferry Road in Lowndes County. At 7:50 p.m., approximately two hours after Abrams said he shot himself, a call for assistance was placed to 911. In the meantime, Dallas Slatton, a part-time volunteer paramedic who happened to be in the area, attended to Abrams and noted he was quite coherent given his condition. He testified as to the presence of alcohol on Abrams' breath and tire tracks leading from nearby property to Abrams' pick-up. Upon questioning by Slatton, Abrams confirmed that he had been spotlighting deer.¹ Inside the pick-up, Slatton noticed beer bottles both empty and full, a fresh pool of blood in the floorboard, rifles on the passenger side, and a Q-Beam handheld spotlight plugged into the dash. Paramedics transported Abrams to Baptist Hospital in Columbus where, despite all efforts, his leg became necrotic and gangrenous and had to be amputated above the knee eleven days later.

Abrams' Theory of the Case

¶ 4. According to Abrams, on December 30, 1994, he traveled to his mother's house to target practice² and sight the scope for the new Marlin. When he finished shooting the Marlin, he cycled a live round into the chamber and uncocked the hammer.³ At approximately 5:30 p.m. he attempted to place the Marlin across the backseat of his pick-up when, as he sat on the driver's seat and swung the Marlin between the front seats, the rifle struck the chromed headrest post on the passenger seat hitting the closed hammer and causing the rifle to fire. He alleged the bump firing was due to the defective design of the Model 336 rifle.

¶ 5. Abrams testified that he tied a piece of wire around his leg to slow the bleeding. He started his manual transmission truck by pressing a clutch release button and drove to his mother's house nearby. He testified that he did not stop at his mother's house for help since no one was home but instead attempted to drive himself to the hospital.

Marlin's Theory of the Case

¶ 6. Marlin's theory of the case was that the rifle was not defective and that Abrams' own negligence, inattention, and misuse of the rifle were the causes of his injuries. It contended the cause of the accident was a full-cocked discharge⁴ of the rifle.

¶ 7. Marlin further asserted that Abrams could not have possibly shot himself at the time and place he said he did and expect to survive over two hours in that condition. Abrams testified that he shot himself at approximately 5:30 p.m. near his mother's house in New Hope in Lowndes County. This is approximately fifteen miles and a twenty-minute drive to the spot where he was found and which is on the other side of the hospital from his mother's house. Rather, Marlin submitted that Abrams shot himself in the woods near Waverly-Ferry Road less than half an hour before he was found.

Course of Proceedings Below

¶ 8. Abrams filed this products liability action against Marlin and Gary's Pawn and Gunshop alleging the Marlin 30-30 was defective, unreasonably dangerous, and discharged without a trigger pull. The trial court granted Abrams' motion in limine to exclude evidence of prior misdemeanor convictions for spotlighting deer, driving under the influence, and assault and battery; evidence of Abrams' possible consumption of alcohol prior to the accident; and evidence that Abrams was hunting deer illegally at the time. After reconsideration prior to trial, the trial court allowed Marlin to inquire into the possible alcohol consumption and illegal hunting.

¶ 9. At trial, Abrams presented expert testimony that the Marlin rifle was defective because it lacked a passive safety device to prevent the rifle from accidentally discharging when the hammer is uncocked and placed against a live round. However, neither expert could rule out the possibility of a full-cocked discharge. Determining exactly how the rifle fired was hindered greatly by the loss of the spent shell casing, since a bump-fire would leave a different firing pin indentation than would a normal firing.⁵

¶ 10. Evidence of proper gun handling techniques as it related to Abrams' handling of the rifle was also presented. Lorne Smith, Jr., a former hunter education instructor, testified as follows about Abrams' violation of various "commandments" of firearms safety:

The first would be—the first commandment says to treat every firearm with the same respect due a loaded gun. So any firearm that you're handling you treat it as if it is loaded so if an accident happens then you've got it pointed in a direction where no one gets hurt. The second commandment says to control the direction of the firearm's muzzle. If he would have controlled the direction of the muzzle even if it had gone off, then he would not have shot himself. The third commandment that he violated was unload firearms when not in use. Leave the actions open. Firearms should be carried empty in cases to and from shooting areas so they should be unloaded and carried in cases from one area to the other or from the shooting range back to the house or wherever. The fourth one says never point a firearm at anything you don't intend to shoot. If you don't intend to shoot something, then you don't point the gun at it. The fifth one says store firearms and ammunition separately beyond the reach of children and careless adults. And the sixth one says to avoid alcoholic beverages and other mood—altering drugs while or during shooting.

¶ 11. After hearing evidence on theories of negligence and strict products liability, a jury returned a unanimous verdict in favor of Marlin and Gary's. Abrams' motion for a new trial was denied, and he appeals asserting as error that the verdict was against the overwhelming weight of the evidence and the admission of the evidence of alcohol consumption and illegal hunting.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF ALCOHOL CONSUMPTION AND ILLEGAL DEER HUNTING.

Standard of Review

¶ 12. Determining the relevancy and admissibility of evidence is within the discretion of the trial judge, and we will reverse only in the event that discretion has been abused. Rials v. Duckworth, 822 So.2d 283, 287 (Miss.2002); Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611, 618 (Miss.2001); Buel v. Sims, 798 So.2d 425, 429 (Miss.2001); Herring v. Poirrier, 797 So.2d 797, 804 (Miss.2000).

A. Evidence of Possible Alcohol Consumption

¶ 13. Abrams contends that the trial court erred in admitting evidence of his possible alcohol consumption. Dallas Slatton testified that he smelled alcohol on Abrams' breath as he attended to Abrams and noted the presence of beer in the truck. Ben Kilgore, a game warden with the Department of Wildlife, Fisheries and Parks, also testified as to the presence of alcohol in Abrams' pick-up. His report of the incident stated as much in pertinent part:

In the vehicle there was a very large pool of blood in the floor board of the driver's side. On the seat was a Q-Beam which was plugged into the lighter outlet. There were two rifles on the seat. One was a bolt action 30-30 with a scope. The other was a twenty two rifle. There was a sack on the seat of the passenger side. It contained two unopened Natural Lite beers [and] one empty Natural Lite beer bottle. These were in the Natural Lite six-pack carton. The two unopened beer bottles were very cold when I felt of them. There was also a Natural Lite beer bottle in the drink holder on the dash. It was about 1/4 full.

David Minyard, whose wife initially found Abrams lying in the street and called him for assistance, testified to the same effect.

¶ 14. Specifically, Abrams claims reversible error and asserts there was no evidence that alcohol had anything to do with the accident and the proof never established that he was actually intoxicated. Marlin responds that the evidence was relevant to show negligence, credibility and causation.

¶ 15. Abrams relies heavily on our decision in Donald v. Triple S Well Service, Inc., 708 So.2d 1318 (Miss.1998). In Donald, a case in which the plaintiff slipped and fell while working on a gas well, the defense elicited testimony that Donald's breath smelled of alcohol on prior occasions while on the job. 708 So.2d at 1322. However, Triple S did not produce a witness that actually observed Donald drinking. Id. at 1324. We held that the evidence never established that Donald had a habit of drinking on the job. Id. at 1323. We also noted that while possibly admissible under Miss. R. Evid. 406, it was unfairly prejudicial under Miss. R. Evid. 403. Id. at 1324. Regarding admissibility of such evidence, we held, "Testimony of alleged alcohol consumption should not be allowed before the jury without a minimal showing of admissibility or causal connection between...