Clancy v. Zale Corp.

• Citation: 705 S.W.2d 820
• Decision Date: 19 February 1986
• Docket Number: No. 05-84-00625-CV,05-84-00625-CV
• Parties: David CLANCY, Appellant, v. ZALE CORPORATION, Appellees.
• Court: Texas Court of Appeals

Page 820

705 S.W.2d 820

David CLANCY, Appellant, v. ZALE CORPORATION, Appellees.

No. 05-84-00625-CV.

Court of Appeals of Texas,

Dallas.

Feb. 19, 1986.

Rehearing Denied March 24, 1986.

Windle Turley, Linda Turley, Darrell Panethiere, Law Offices of Windle Turley, P.C., Dallas, for appellant.

Royal H. Brin, John E. Phillips, P. Michael Jung, Randal Mathis, Strasburger & Price, Dallas, for appellees.

Before SPARLING, ¹ VANCE and GUILLOT, JJ.

GUILLOT, Justice.

David Clancy appeals from a take-nothing judgment in favor of appellees, Zale Corporation, Rogers Research and Development, Inc., the Arms Corporation of America, and Armsco Distributing Company and their subsidiaries (collectively referred to hereinafter as "Zale"). For the reasons below, we affirm the judgment of the trial court.

Clancy sought recovery against Zale and Kenneth Hacker for an injury he sustained while standing next to a parked car in which Hacker was playing with a .22 caliber Armsco revolver. The gun discharged striking Clancy in the neck and leaving him paralyzed. The jury found Hacker, a third-party defendant, negligent and assessed two million dollars in damages.

The jury returned a take-nothing verdict in favor of Zale on Clancy's strict liability claim. Clancy alleged that Zale was strictly liable for the design, manufacture, and sale of the Armsco revolver that wounded him. In particular, Clancy alleged that the gun was defective in its overall design and in lacking such safety devices as a hammer block or transfer bar. The jury found that the revolver was not defectively designed.

Clancy raises nine points of error which can be grouped into five categories:

(1) improper conduct of counsel;

(2) improperly submitted design defect issues;

(3) failure to give requested jury instructions;

(4) jury findings against the great weight and preponderance of the evidence; and

(5) failure to grant an evidentiary hearing on alleged jury misconduct.

Finding no error, we affirm the judgment of the trial court.

I. Improper Conduct of Counsel

In his first point of error, Clancy contends that improper conduct of defense counsel interjected irrelevant, inflammatory, and prejudicial issues into the trial by:

(1) violating the trial court's motion in limine concerning:

(a) the right to own a handgun;

(b) legislative actions concerning the sale, ownership, use and possession of handguns; and

(c) Clancy's use of alcohol and drugs;

(2) interjecting improper and prejudicial practices in questioning witnesses;

(3) informing the jury of the effect of their answers to special issues; and

(4) arguing facts contrary to all evidence of record.

Clancy's first point of error is clearly multifarious. A point of error is multifarious if it embraces more than one specific ground of error, or if it attacks several distinct and separate rulings of the court. Ozuna v. Dyer Fruit Box Manufacturing Co., 606 S.W.2d 334, 337 (Tex.Civ.App.--Tyler 1980, no writ); and Rio Delta Land Co. v. Johnson, 566 S.W.2d 710, 713 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.). Here, Clancy complains of fifty-two (52) different instances of alleged attorney misconduct.

This Court may disregard any assignment of error that is multifarious. Citizens Building, Inc. v. Azios, 590 S.W.2d 569, 572 (Tex.Civ.App.--Houston [1st Dist.] 1979, writ ref'd n.r.e.). Therefore, we overrule Clancy's first point of error.

II. Issue Submissions

Clancy contends in his third and fourth points of error that the trial court erred in submitting the design defect issue to the jury in a manner which instructed them to assess the overall design of the product without regard to the absence of a hammer block or transfer bar, and, alternatively, in refusing Clancy's requested design defect issue, which asked the jury whether the handgun was unreasonably dangerous, taking into consideration the utility of the product's design, the risk involved in its use, and the manner in which it was marketed to the public. We cannot agree.

The trial court submitted the design defect issue as follows:

1. At the time the handgun was sold by Zale, was the handgun defectively designed:

(a.) Because it did not have a hammer block or transfer bar?

(b.) Because of its overall design as a handgun, without regard to the absence of a hammer block or transfer bar?

Answer each part separately. In answering part a, consider only whether the handgun was defectively designed because of the absence of a hammer block or transfer bar. In answering part b, consider whether the overall design of the handgun was defective apart from and without regard to the absence of a hammer block or transfer bar.

A "defectively designed" product is a product that is unreasonably dangerous as designed or developed, taking into consideration the utility of the product and the risk involved in its use.

Clancy contends that this is a disjunctive submission of the defective design issue which prevented the jury from considering the overall design of the product including lack of a hammer block or transfer bar, in contravention of Turner v. General Motors Corp., 584 S.W.2d 844, 847 (Tex.1979).

In Turner, the Texas Supreme Court delineated the proper issue submission for a design defect case:

Do you find from a preponderance of the evidence that at the time the [product] in question was manufactured by [manufacturer] the [product] was defectively designed?

The issue submitted in the instant case recites the same language as in Turner, but subdivides the issue to focus on the absence of a hammer block or transfer bar and the overall design of the handgun, excluding the absence of a hammer block or transfer bar.

Clancy submitted his cause for defective design based upon two separate theories: that the Armsco handgun was defectively designed in the absence of a hammer block or transfer bar, and that handguns in general are defectively designed due to the overall design of the gun including its size, concealability, cheapness, availability, and shortness of the barrel. The trial court properly drew the attention of the jury to Clancy's two theories for recovery. In fact, this disjunctive submission favored Clancy, by affording two possible theories upon which the jury could find the handgun defectively designed. Furthermore, the issue was not actually disjunctive because it did not limit the jury to one alternative or the other. The jury could have answered "yes" that the gun was defectively designed either because it lacked a hammer block or transfer bar or because of its overall design excluding the absence of a hammer block or transfer bar, or upon both theories. This submission afforded Clancy two opportunities for a finding of defective design and two bases for recovery should the jury also find producing cause. Under the broad submission propounded by Clancy, the jury's attention would not be focused on Clancy's independent theories of recovery.

A trial court has considerable discretion in the submission of special issues and may submit separate questions on each element of a case, or may submit the issues broadly. TEX.R.CIV.P. 277. The court is required to submit the disputed issues fairly, and its exercise of discretion will not be overturned absent a clear showing of abuse constituting a denial of rights that was reasonably calculated to cause, and did cause, the rendition of an improper verdict. De Anda v. Home Insurance Co., 618 S.W.2d 529, 534 (Tex.1980); and Line Enterprises v. Hooks & Matteson Enterprises, Inc., 659 S.W.2d 113, 116-17 (Tex.App.--Amarillo 1983, no writ). We hold that the trial court did not abuse its discretion in submitting this issue in two parts.

Clancy also contends in his fourth point of error that the trial court should have included in the definition of "unreasonably dangerous" an instruction for the jury to consider, along with the risk and utility of the handgun, the manner in which the handgun was marketed to the public. We disagree.

The trial court submitted the Turner definition of "unreasonably dangerous." Turner, 584 S.W.2d at 847. This definition instructs the jury to weigh the risk and utility of the product in determining whether the product is defectively designed. Finding no Texas authority, we will not expand the Turner definition to include a consideration of marketing techniques. Absent a showing of abuse of discretion or an improper verdict, we overrule Clancy's third and fourth points of error.

III. Submission of Instructions

In his second point of error, Clancy contends that the trial court erred in refusing to submit his requested instruction that the revolver's compliance with government standards is not a defense to this action. He bases his argument on Zale's continued references to the gun's meeting government standards. This point of error is not well taken.

To begin with, Clancy failed to preserve any alleged error below by either objecting to Zale's references to government standards or requesting an instruction or mistrial. United States Fire Insurance v. Monn, 643 S.W.2d 207, 209 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.); and General Motors Corp. v. Grizzle, 642 S.W.2d 837, 845-46 (Tex.App.--Waco 1982, writ dism'd w.o.j.). Furthermore, the judge, in his discretion, may have found that the requested instruction was unnecessary or confusing. Under rule 273 of the Texas Rules of Civil Procedure, the judge has wide discretion in submitting explanatory instructions. Scott v. Houston Independent School District, 641 S.W.2d 255, 257 (Tex.App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.). We overrule Clancy's second point of error.

In his fifth point of error, Clancy alleges that the trial court erred in refusing to submit the instruction that, should the jury find that Clancy was injured by a defective product, then the burden would shift to Zale to justify the gun's design, balancing that design against the risk of harm presented. Clancy has not cited, nor have ...