International Armament Corp. v. King

• Decision Date: 07 June 1984
• Docket Number: No. 13-83-084-CV,13-83-084-CV
• Parties: INTERNATIONAL ARMAMENT CORP., et al., Appellants, v. Clifford Wayne KING, Appellees.
• Court: Texas Court of Appeals

Page 413

674 S.W.2d 413

INTERNATIONAL ARMAMENT CORP., et al., Appellants, v. Clifford Wayne KING, Appellees.

No. 13-83-084-CV.

Court of Appeals of Texas Corpus Christi.

June 7, 1984.

Darrel E. Reed, Jr., Hutcheson & Grundy, Houston, for appellants.

Joe K. Longley, Austin, for appellees.

Before UTTER, KENNEDY and GONZALEZ, JJ.

OPINION

UTTER, Justice.

This is a products liability case. This suit arose as a result of an accidental gunshot wound suffered by appellee and inflicted by a 12-gauge shotgun, which was imported and distributed by appellant International Armament Corp. (hereinafter IAC). Appellee originally brought suit against the manufacturer of the shotgun and appellants IAC and Oshman's, the retail seller. Only IAC and Oshman's have appealed the judgment of the trial court. In response to the special issues, the jury found appellants liable for appellee's injuries and awarded him actual and exemplary damages and attorney's fees totaling $1,799,053.60. We affirm.

In September of 1979, appellee purchased a side-by-side double barrel 12-gauge shotgun from Oshman's. This particular weapon was marketed by IAC under the brand name of "Star Gauge." The weapon was manufactured for IAC by a Spanish arms manufacturer. Appellant imported and sold several hundred of these shotguns in this country in both 12, 20 and 410 gauges over approximately a two-year period of time.

Shortly after purchasing the shotgun, appellee went hunting with a relative. He experienced repeated misfiring in the right chamber of the weapon. He did not, however, return the weapon to Oshman's, nor did he have the weapon inspected by a gunsmith. On November 24, 1979, appellee and several relatives took the subject shotgun and some other weapons to a relative's farm for target practice. Appellee's brother-in-law first attempted to fire appellee's shotgun. The weapon again malfunctioned. Appellee's step-father, who professed certain expertise in weaponry, then took the shotgun and inspected it. He first removed the shells from the chamber and inspected the firing pins and the receiver assembly. While his step-father was looking at the shotgun, appellee walked down-range from the firing line and set up some cans which were being used as targets and had been blown over by the wind. As appellee began walking back towards his step-father, the step-father completed his inspection of the weapon and reloaded the shells into the chamber. When appellee was two to four feet in front of his step-father, his step-father closed the receiver on the shotgun. At that time, the weapon discharged from its left barrel. Appellee was struck in the left shin, just below the knee, and the majority of the load exited through his upper calf. It is undisputed that the safety was on at the time of the discharge and that appellee's step-father's hands were not on the trigger. As a result of the gunshot wound, appellee suffered some permanent loss of use of his left foot, plus permanent disfigurement.

In his trial pleadings, appellee sought to recover damages against appellants under strict liability theory for importing, distributing or marketing a shotgun that was unreasonably dangerous due to a defective design and for failure to warn appellee of said defective design. Appellee also sought recovery for breach of warranty of merchantability, quality and fitness for intended use. Appellee also sought recovery for negligence and gross negligence for appellant IAC's alleged failure to inspect or test the weapon. Finally, appellee sought recovery from appellants under TEX.BUS. & COM.CODE ANN. Sec. 17.41 et seq., (Vernon Supp.1984) of the Texas Consumer Protection--Deceptive Trade Practices Act.

Appellants, on appeal, do not contest the jury's findings in awarding actual damages but do contest the award of exemplary damages and attorney's fees.

In its first through fifth points of error, appellant IAC attacks the sufficiency of the evidence to support the jury's findings to Special Issues 9 through 15 and 17. In response to these issues, the jury found:

Issue No. 9

That defendant IAC failed to give an adequate warning, at the time it sold the gun in question, of the danger that such gun could fire when on "safety" and with no engagement of the triggers.

Issue No. 10

That such failure of defendant IAC to warn of such danger rendered the shotgun in question unreasonably dangerous as marketed.

Issue No. 11

That such failure to warn of such danger by defendant IAC was an "unconscionable action."

Issue No. 12

That such failure was a producing cause of the occurrence in question.

Issue No. 13

That defendant IAC knowingly engaged in such unconscionable action.

Issue No. 14

That the failure of defendant IAC to adequately warn of the danger that the shotgun in question could fire when on "safety" and with no engagement of the triggers constituted reckless, wanton and grossly negligence conduct.

Issue No. 15

That such conduct by defendant IAC was a proximate cause of the occurrence in question.

Issue No. 17

That $1,500,000.00 should be awarded against defendant IAC as exemplary damages.

In considering a "no evidence" or "insufficient evidence" point of error, we will follow the well established test set forth in Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Company v. Garza, 626 S.W.2d 120 (Tex.Civ.App.--Corpus Christi 1981, writ ref'd n.r.e.); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361 (1960).

The first thrust of appellant IAC's argument is that there is no evidence or insufficient evidence to prove that appellant knew or should have known of the defect in the gun; and therefore, appellant IAC could not have acted knowingly or with conscious indifference as to the safety of the appellee. Appellant IAC's real argument here is that there is insufficient evidence to support the award of exemplary damages.

The proper test for awarding exemplary damages is whether or not the evidence of appellant IAC's conduct demonstrates "that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it." Burk Royalty Company v. Walls, 616 S.W.2d 911 (Tex.1981); Missouri Pacific Railway v. Shuford, 72 Tex. 165, 10 S.W. 408 (1888); Ford Motor Company v. Nowak, 638 S.W.2d 582 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.). Generally, in order to recover exemplary damages, the plaintiff must show that the offending party acted intentionally or willfully or with a degree of gross negligence which approximated a fixed purpose to bring about the injury of which plaintiff complains. Diesel Injection Sales & Service, Inc. v. Renfro, 656 S.W.2d 568 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.).

"What lifts ordinary negligence into gross negligence is the mental attitude of the defendant; that is what justifies the penal nature of the imposition of exemplary damages. The plaintiff must show that the defendant was consciously, i.e., knowingly indifferent to his rights, welfare and safety. Such conduct could be active or passive in nature." Ford Motor Co. v. Nowak, 638 S.W.2d at 593. The standard for awarding punitive damages in products liability cases in Texas is based on the traditional standard for such damages; that is, a finding of at least gross negligence; of reckless indifference or wanton behavior. Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex.1981); Ford Motor Company v. Nowak, 638 S.W.2d at 593.

In determining whether there is some evidence of the jury's finding of gross negligence, we must look to all of the surrounding facts, circumstances and conditions, not just individual elements or facts. Burk Royalty Co. v. Walls, 616 S.W.2d at 922. The existence of gross negligence need not rest upon a single act or omission but may result from a combination of negligent acts or omissions, and many circumstances and elements may be considered in determining whether an act constitutes gross negligence. Id. A mental state may be inferred from actions, and all actions or circumstances indicating a state of mind amounting to a conscious indifference need be examined to decide if there is some evidence of gross negligence. Id. Evidence that appellant exercised some care does not preclude this court's finding some evidence to support the jury finding of gross negligence. Id.

The evidence favorable to the jury's finding of gross negligence is as follows: Russ J. Moure, Director of Engineering for appellant IAC, admitted that the safety system used on the weapon would allow the gun to fire if the trigger sear ¹ malfunctioned. He further testified that, contrary to IAC's advertisements, the weapon was not assembled and finished with meticulous care nor were all the major internal parts completely machined nor were all the moving parts polished for smooth operation. Moure also testified that, at the time IAC considered marketing this weapon, they received a shipment of eight weapons from the manufacturer of which the first two were test-fired and were inspected completely, internally and externally. Thereafter, IAC conducted a complete breakdown inspection of two out of every twenty-five weapons which it received from the manufacturer. Mr. Moure further testified that, from the very beginning, IAC was aware that these weapons were not meticulously manufactured and contained cosmetic defects. These cosmetic defects were to the extent that 150 out of the first 700 guns received by IAC were rejected. Ultimately, IAC discontinued importing the weapons because of the continuing problems with cosmetic defects from the manufacturer. Appellee's expert, Charles Tediford, a gunsmith, testified that the parts in the offending weapon were of inferior quality and that the sear and hammers were not manufactured properly. Dr. John...