Messler v. Simmons Gun Specialties, Inc.

• Decision Date: 05 June 1984
• Docket Number: No. 57560,57560
• Citation: 687 P.2d 121,1984 OK 35
• Parties: Florence Louise MESSLER, Administratrix of the Estate of Robert August Messler, Deceased, Appellee, v. SIMMONS GUN SPECIALTIES, INC., a corporation; Firearms International Corporation, a corporation; and F.I. Industries, Inc., a corporation, Appellants.
• Court: Oklahoma Supreme Court

Page 121

687 P.2d 121

1984 OK 35

Florence Louise MESSLER, Administratrix of the Estate of Robert August Messler, Deceased, Appellee, v. SIMMONS GUN SPECIALTIES, INC., a corporation; Firearms

International Corporation, a corporation; and

F.I. Industries, Inc., a corporation, Appellants.

No. 57560.

Supreme Court of Oklahoma.

June 5, 1984.

Rehearing Denied Sept. 26, 1984.

Appeal from the District Court of Oklahoma County; Jack R. Parr, judge.

Appellants appeal from the award of a jury verdict in a wrongful death action based on manufacturer's products liability. It is asserted on appeal that the trial court erred when it: 1) refused to admit offered evidence of alteration of the shotgun which exploded resulting in the death of Robert August Messler; 2) refused to admit deposition testimony for impeachment purposes; 3) made prejudicial rulings and comments in the presence of the jury; 4) erroneously gave Instruction No. 8; 5) overruled appellants' demurrer to the evidence and motion for directed verdict; and 6) awarded post-judgment interest upon pre-judgment interest.

Abel, Musser, Sokolosky & Clark by Ed Abel and Leo H. Whinery, Oklahoma City, for appellee.

Fenton, Fenton, Smith, Reneau & Moon by Edward L. Ray, Oklahoma City, for appellants, Firearms Intern. Corp. and F.I. Industries, Inc.

HODGES, Justice.

The questions raised on appeal arise from the award of a jury verdict in a wrongful death action based on manufacturers' products liability. The issue presented in the trial court was whether a shotgun, manufactured in Spain, and imported by Firearms International Corporation and F.I. Industries (appellants-importers) for resale, was defectively designed and manufactured in a manner which made it unreasonably dangerous beyond the contemplation of the ordinary user. ¹ The cause of action arose as the result of the explosion of a 12 gauge AYS Matador double barrel shotgun. Although it is believed the gun was at least ten years old at the time it exploded, the history of the gun is obscure. None of the parties were able to determine the exact age of the gun, the date of the sale, any chain of ownership, or the extent to which the gun had been used. However, the gun had been modified after purchase with the attachment of a floating rib soldered to the top, presumably to facilitate sighting.

While Richard Simpson and a group of friends were shooting skeet, the right barrel of the gun exploded and a fragment of the exploding metal struck Robert August Messler, the owner of the gun, who was standing some distance in back and to the right of the shooter. Messler died en route to the hospital from injuries sustained from the metal projectile. Approximately one year after the accident, the widow of the decedent (appellee) filed a claim for damages against the importers of the gun and against Simmons Gun Specialties, Inc. (Simmons) who had modified the gun by attaching the floating rib, ² for the wrongful death of her husband. She alleged that the shotgun was defectively designed and manufactured in such a manner as to make it unreasonably dangerous because: the metal used in the gun was insufficient to withstand the pressure of firing; the defendants used improper bonding in the brazed area above the pin slide; and that the floating rib attached to the gun weakened the gun which caused it to explode.

The importers denied that the gun was defectively manufactured and raised two affirmative defenses: 1) the shotgun was not in the same condition as it was when it was originally sold, but had been so changed and altered that the modification was responsible for any alleged defect; and 2) the sole and proximate cause of the explosion of the gun was the negligence of the decedent and other third parties, and the abnormal use and misuse of the gun by decedent and unknown third parties. Simmons denied that it had used improper materials or design in attaching the floating rib to the shotgun or that its modification of the shotgun in any way weakened or impaired the gun, causing it to explode. It pleaded that the explosion was the result of negligence and want of care of decedent or third parties, or use of improper design or materials by the original manufacturer.

After extensive discovery, Simmons moved for summary judgment based on an affidavit by Simmons and a deposition by the widow's metallurgical expert witness. The affidavit by Simmons described the procedure used to attach the floating rib to the gun. The metallurgical expert witness, in his deposition, accepting this affidavit as true, testified that the procedure described could not be the cause of the explosion. The expert explained that the floating rib was attached by a soldering process at a relatively low temperature, and that a much higher temperature would be required during modification to weaken or impair the gun. All the parties were present at the hearing on the motion for summary judgment, and neither the widow nor the importers presented any evidence in opposition to the motion. Because there was no substantial controversy as to the fact that the modification of the shotgun did not constitute a proximate, or a contributing cause of the rupture of the shotgun, summary judgment was granted. The journal entry was approved by all parties, and no appeal was taken from that order.

At trial, the basic contention between the parties was whether the gun was defectively designed and manufactured in such manner that it exploded under normal use; or whether the explosion of the gun was due to misuse of the gun, i.e., improper use of overloaded shells, which brought too much stress and pressure on the barrel of the gun, and caused it to explode.

On the morning of trial, the widow filed a motion in limine to prohibit the importers from arguing, contending, mentioning or in any way referring to the modification of the gun by Simmons as being the proximate cause of the gun's explosion. This motion was sustained. At trial, the importers again sought to introduce evidence of the subsequent modification of the shotgun by attachment of the floating rib. The court sustained widow's objection and refused to admit the evidence. The jury returned a verdict for the widow in the amount of $275,000.00. The trial court entered judgment which included pre-judgment interest for a total of $430,822.04, plus accrued interest on the principal sum from and after the date of judgment.

The importers assert on appeal that: 1) the trial court erred in allowing widow's metallurgist expert to testify that defective brazing contributed to this failure, and then refusing to allow importer to introduce evidence of the modification by Simmons, which importer contends contributed to the breakdown of the braze, or the use of the expert's deposition, relating to the subsequent modification of the shotgun for impeachment purposes; 2) the rulings and comments of the trial court before the jury constitute prejudicial error; 3) the trial court committed reversible error in giving Instruction No. 8; 4) the trial court erroneously overruled appellants' demurrer to the evidence and motion for directed verdict; and 5) post-judgment interest cannot be imposed upon pre-judgment interest.

I.

A.

Liability for injuries sustained by a user of an altered product may be imposed on a manufacturer or seller if the injuries were caused by a defect in the product as manufactured and sold. The seller or manufacturer may not be held liable if an alteration is responsible for the defect, and is the intervening and superseding cause as opposed to the concurrent cause of the injuries. ³

Importers contend that the trial court erred in allowing widow to "change theories" in the middle of the trial. This contention is based upon importers' version of widow's expert testimony in pretrial deposition, where the witness testified that the modification by Simmons did not contribute to the accident. At trial the metallurgist testified that the defective design of the barrel, specifically the placement of the slide pin hole which resulted in the shaving away of 58% of the left side of the barrel that blew up, when combined with defective brazing between the barrels, allowed this failure to occur. Importers say the expert's testimony presented a new theory of defect and causation, i.e., defective brazing.

The record does not support importers' claim of surprise. Defective brazing was pleaded in the first and amended petitions and the metallurgist's deposition clearly indicates that defective brazing was one of the possible three causes for the right chamber to explode, especially in the area where the chamber wall had been reduced to permit the placement of the slide-ejector pinholes.

Importers' belief that the widow changed theories appears to be based upon a misunderstanding of the basis for the determination that the Simmons' modification did not contribute to the decedent's death. Counsel for importers consistently characterized the process by which the Simmons' rib was attached as "brazing". The record before the trial court on the motion for summary judgment, and upon which widow's metallurgical expert based his testimony, was that the Simmons' rib was "soldered" with temperatures that did not approach "brazing".

The metallurgist precisely stated in his deposition that attaching the floating rib to the top of the gun, under the installation conditions specified in Simmons' affidavit, could not have damaged the gun because soldering of this attachment to the gun was done by a relatively low temperature process. In order to cause damage between the barrels, a very high temperature would have been necessary. ⁴ Importers alluded to the modification of the gun when cross-examining the metallurgist. Without mentioning the modification, the expert stated that only heat near brazing temperature would have impaired the original brazing between the barrels. He steadfastly maintained: "It would have to be brazing...