Mears v. Olin, 74--1565
| Decision Date | 28 February 1975 |
| Docket Number | No. 74--1565,74--1565 |
| Citation | 527 F.2d 1100 |
| Parties | John B. MEARS, Plaintiff-Appellee, v. OLIN, a corporation, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Fredric H. Kauffman, Lincoln, Neb., for defendant-appellant.
Francis M. Casey, Plattsmouth, Neb., for plaintiff-appellee.
Before JOHNSEN, Senior Circuit Judge, and STEPHENSON and WEBSTER, Circuit Judges.
John B. Mears brought this products liability action against Olin Corporation claiming a factory defect in a Winchester rifle. The case was tried to the United States District Court for the District of Nebraska, Honorable Robert V. Denney, without a jury. Mears was awarded $63,919.77 in damages. Olin appeals, claiming trial court errors in the admission of expert testimony, and challenges the sufficiency of the evidence to support plaintiff's verdict. We affirm.
Appellee Mears was road hunting for coyotes southeast of Nebraska City, Nebraska. His firearm was a Winchester Model 94 rifle, Theodore Roosevelt Commemorative Edition. 1
Upon sighting a coyote, Mears picked his Winschester from the seat beside him, aimed through the open window of the driver's side of the car, cocked, and fired. The bullet missed its mark and the coyote ran. Mears placed the rifle, barrel down, butt up, next to him on the seat. Noticing that the coyote had run only a few yards, Mears again reached for his rifle. This time he cocked the gun inside the car. Then, in trying to maneuver the muzzle out the window, the butt of the rifle struck the headrest or the ceiling of the car. The gun discharged, the bullet striking Mears in the right leg.
Mears prepared a tourniquet and drove himself to the hospital. Ultimately, the leg was amputated below the knee.
Because it becomes a major bone of contention, we will give a general recount of the custody of the subject rifle from the time of the accident until the lawsuit was tried.
The accident occurred on February 20, 1970. Until that time the rifle had been fired approximately forty-three times. Mears' testimony was that he had noticed nothing unusual about the rifle but that on 'a couple' of occasions the hammer dropped from a full-cocked position to a half-cocked position (safety position) without the trigger being touched.
Following the accident, the rifle was taken to Mr. Lloyd Barton for cleaning. He noticed nothing unusual about the rifle.
On June 14, 1971 Mr. Francis M. Casey, Mears' attorney, took the subject rifle to Bernard Basel, who removed the hammer and sear. 2 Mr. Casey picked up the rifle, hammer and sear and caused them to be photographed. The rifle was then delivered to Expertise Institute in Miami, Florida for expert analysis. 3
The rifle was delivered to Olin at its Winchester factory for examination on August 22, 1972. Olin's experts found the rifle to be generally in bad condition. They fired the gun and subjected it to sixteen drop tests 4 to determine whether the hammer would fall to the firing pin. Upon magnified examination of the sear, Olin experts determined that it was damaged. Even so, both hammer and sear were within factory specifications. According to the Olin experts, the damage to the sear was not due to normal firing of the gun but was caused by excessive drop testing and/or filing.
Upon reassembly of the rifle, it would no longer hold in a cocked position. Olin experts did not directly explain this fact.
In October of 1972 the hammer and sear underwent examination at the University of Nebraska by Olin's retained expert, Mr. Harper. Thereafter, in February 1973 the rifle was examined by Mears' expert, Mr. O'Neill, and later by another expert, Mr. Mart, who conducted further drop tests interchanging a substitute hammer and sear.
Finally, the hammer and sear were returned to Olin's Winchester plant and again subjected to factory tests. The tests showed that the sear had been reduced in size since the August 22 examination. Nevertheless, both hammer and sear were still within factory specifications.
After briefly summarizing the expert testimony, the trial court wrote:
It is the Court's conclusions from this testimony that some property or the manner of construction and fitting of the original hammer caused it to beat down the sear in such a way that the hammer, when cocked and subjected to a jarring effect on the rifle, could fall by the force of the mainspring to the firing pin, discharging the weapon. It is apparent that this condition of the hammer was present when it left the factory, and there was no attempt at testimony to the contrary.
The central appellate focus boils down to this: Olin claims that since all expert examination of the subject rifle took place on and after August 22, 1972, and since the rifle is unaccounted for during the nine and one-half months it was in the possession of Expertise Institute, it follows that no basis exists for concluding that a manufacturing defect was present. Attendant and a part of this argument is the claim that excessive drop testing caused the defect and that all drop testing took place after the accident.
The facts, of course, were controverted and conflicting. Experts testified for both sides. Our review is limited by Rule 52(a), Federal Rules of Civil Procedure. We cannot review the case de novo. We view the evidence in the light most favorable to the prevailing party, and we cannot reverse the trial court unless we should find that its findings are clearly erroneous. We must bear in mind that the trial judge has had the better opportunity to weigh the credibility of the witnesses. Zenith Corp. v. Hazeltine, 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Snodgrass v. Nelson, 503 F.2d 94, 95 (8th Cir. 1974); Moorhead Construction Co. v. City of Grand Forks, 508 F.2d 1008, at 1012 (8th Cir. filed January 3, 1975).
The fact that the rifle was unaccounted for at the hands of Expertise Institute becomes immaterial in light of the trial court's findings. The court expressly discredited the testimony regarding file marks on the sear, 5 thus rejecting any implication that post-accident tampering with the parts contributed to the defective condition. Based on our reading of the entire record, that finding is not clearly erroneous. 6
We agree with appellant...
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