Bender v. Colt Industries, Inc., 35698

• Decision Date: 23 December 1974
• Docket Number: No. 35698,35698
• Citation: 517 S.W.2d 705
• Parties: Jack BENDER, Plaintiff-Respondent, v. COLT INDUSTRIES, INC., and Goodman's Inc., Defendants, Colt Industries, Inc., Defendant-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 705

517 S.W.2d 705

Jack BENDER, Plaintiff-Respondent, v. COLT INDUSTRIES, INC., and Goodman's Inc., Defendants Colt Industries, Inc., Defendant-Appellant.

No. 35698.

Missouri Court of Appeals, St. Louis District, Division Two.

Dec. 23, 1974.

Robert C. Ely, Robertson, Ely & Wieland, St. Louis, for defendant-appellant.

Robert F. Summers, Klamen, Summers & Compton, St. Louis, for plaintiff-respondent.

STEWART, Judge.

This is an action for damages for personal injuries sustained by respondent, hereafter referred to as plaintiff, when a revolver purchased by him from defendant, Goodman's, Inc., a retailer, and manufactured by defendant-appellant, Colt Industries, Inc., hereinafter referred to as defendant, discharged when it fell out of plaintiff's pocket onto a concrete platform. The gun was Colt's Single Action Army Revolver. The cause was pleaded and submitted on the theory of strict liability. The amended petition alleged that the trigger and sear of the gun 'was fragile, weak and therefore, unable to withstand reasonably foreseeable or anticipated jolts'. There was a jury verdict for plaintiff in the sum of $15,000.00 against defendant, Colt Industries, Inc. and in favor of defendant, Goodman's, Inc. We affirm that judgment.

Plaintiff, a gun enthusiast, purchased the gun on October 31, 1969, because he liked the looks and because he wanted an authentic six-gun. He was twenty-nien years of age at the time. His father had been a police officer and plaintiff had been raised around guns. He had experience with guns in hunting and targer shooting.

The single action revolver is one in which the hammer must be drawn back (cocked) before each shot is fired. There are three hammer or cocked positions, made possible by three notches on the lower portion of the hammer piece which is within the frame of the gun. The upper tip of the trigger, which is known as the sear, fits into the notches to hold the hammer in the chosen cocked position. The first position is known as the safety position 'with the firing pin held safety away from the cartridge primer'. The second is 'half cock' with the hammer halfway back with the cylinder free to rotate for the purpose of loading. 'The safety and half-cock notches are designed to prevent the trigger from being pulled'. The third position is with the hammer all the way back and the revolver ready to fire.

A few days after he purchased the gun plaintiff went to a clubhouse on the Meramec River with friends. Using cans as targets, he shot a number of rounds from the newly purchased gun. He had just completed the reloading of his gun when one of his companions asked him for some shells. He put the gun in the 'safety position'; he put the gun into the pocket of his hunting jacket; stepped over to a concrete platform where the cartridge belt was lying; knelt to pick up the cartridges and as he did so the gun fell from his pocket to the concrete platform a distance of about one foot and discharged, striking plaintiff on the left side of the face.

The plaintiff's expert witness testified, and the jury could reasonably have found, that the gun was caused to discharge because the hammer spur received a sharp blow, causing the sear tip to be fractured and displaced, allowing the hammer to slip out of the safety notch, causing the firing pin to strike the cartridge.

The Colt Single Action Army Revolver was first produced in 1873. It continued in production until 1941 when production was suspended because of wartime production needs. The gun went back into production in 1956.

Defendant was aware that there were problems with the breakage of the sear. It had always had such problems. If the sear were changed defendant would have to change the notch in the hammer and make some change inside the frame. There was no true safety in this gun. A modern safety, which places a 'physical block' between the fire pin and the cartridge, could be placed on this gun.

Some changes had been made in the gun through the years. The changes included a change in the height of the front sight, the redesign of the base pin and the diameter of the barrel. The guns first put into production were available only as a .44 caliber and later as a .45. Further modifications have been made so that today they are also available in the .38 special and .357 magnum. Plaintiff's gun was a .357 magnum which also accommodates the .38 special. No change has been made in the triggersear.

Defendant adroitly presents us with a novel issue with respect to the theory of strict liability. It is agreed that the principle of strict liability in tort, though of recent development, is now firmly rooted into the law of this State. Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362 (Mo.1969). Defendant, however, contends that it is entitled to judgment as a matter of law because the gun involved is 'an exact replica' of the gun which dates back to 1873 and thus does not come within the purview of the strict product liability doctrine. Also, because the plaintiff knowingly purchased the gun as a replica, nothing in its design and construction can be considered a defect.

Defendant concedes, that except for its claim that this is a replica and thus not within the purview of the cases on strict liability, the jury could reasonably have found that the gun was defective in design according with Higgins v. Hardeman, Inc., 457 S.W.2d 943 (Mo.App.1970). Defendant's expert witness acknowledged that Colt had always had trouble with the sear; it had known for years that it was fragile and likely to break. Plaintiff had no knowledge of this defect. Plaintiff's expert, as noted above, testified that the fracture and displacement of the sear caused the gun to discharge.

The thrust of defendant's argument is that any current reproduction of an article of commerce, which the manufacturer considers to be of an historic or nostalgic interest, irrespective of its nature, should be exempted from the rule of strict liability in tort.

We confine ourselves to the facts presented to us in this case. The reason for the rule has been restated by various writers in a variety of ways. The most succinct is that of William L. Prosser, The Fall of the Citadel, 50 Minn.Law Review, 791, at Page 799:

'The public interest in human safety requires the maximum possible protection for the user of the product, and those best able to afford it are the suppliers of the chattel. By placing their goods upon the market, the suppliers represent to the public that they are suitable and safe for use; and by packaging, advertising and otherwise they do everything they can to induce that belief.'

The gun which plaintiff purchased was not of ancient manufacture nor marketed under the commercial practices of 1873. This was not a museum piece sold to be mounted on velvet and encased in a frame. This gun was intended to be used for the same purpose as any handgun in the Colt line. The Colt Single Action Revolver was one of the principal items in the Colt line until 1941. Colt was aware of the problem with the sear when the gun went back into production in 1956, but made no change in that...