Riggin v. Fed. Cartridge Corp.
| Decision Date | 16 June 1947 |
| Docket Number | No. 20874.,20874. |
| Citation | 204 S.W.2d 94 |
| Parties | JAMES G. RIGGIN, RESPONDENT, v. FEDERAL CARTRIDGE CORPORATION, A CORPORATION, APPELLANT. |
| Court | Missouri Court of Appeals |
APPEAL from Jackson County Circuit Court. — Hon. Emory H. Wright, Judge.
JUDGMENT AFFIRMED.
Madden, Freeman, Madden & Burke, John G. Madden, James E. Burke, and Ralph M. Russell for appellant.
(1) The doctrine of res ipsa loquitur has no application to this case. Exclusive control by defendant of the instrumentality is an essential element of res ipsa loquitur. Kees v. Canada Dry Ginger Ale, Inc., (239 Mo. App. 1080); Hartnett v. May Dept. Stores, (Mo. App.), 85 S.W. (2d) 644; McCloskey v. Koplar, (Mo.), 46 S.W. (2d) 557 (l.c. 559); Tayer v. York Ice Mach. Corp., (Mo.), 119 S.W. (2d) 240; Clark v. Granby Mining & Smelting Co., 183 S.W. 1099; Leeper v. National Lead Co., (D.C.E.D. Mo.), 42 F. Supp. 121; Gibbs v. General Motors Corp., (Mo.), 166 S.W. 2d 575; Brown v. St. Louis County Gas Co., (Mo. App.), 131 S.W. 2d 354; Cantley v. Railway Co., (Mo. Sup.), 183 S.W. 2d 123 (l.c. 129); Bonham v. Winchester Repeating Arms Co., 179 Ill. App. 469 (l.c. 474-475); White v. Spreckels, (Cal. App.), 101 P. 920; Peters v. Lynchburg Light Co., (Va.), 61 S.E. 745; Lynch v. Ninemire Packing Co., (Wash.), 115 P. 838. (2) Facts relied upon must reasonably exclude every hypothesis other than defendant's negligence. Kees v. Canada Dry Ginger Ale, Inc., (239 Mo. App. 1080); Grindstaff v. J. Goldberg & Sons, (Mo.), 40 S.W. 2d 702; Removich v. Construction Co., 264 Mo. 43, 173 S.W. 686. (3) There is no specific evidence of defendant's negligence. Ensign-Brickford Co. v. Reeves, 95 F. 2d 190 (l.c. 194, 195); Kemmie v. Terminal R. Ass'n., (Mo.), 66 S.W. 2d 561 (l.c. 565); St. Louis Fireworks Co. v. Wilson, 5 Tenn. C.C.A. 388; Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605 (l.c. 617). Scanlon v. Kansas City, (Mo.), 81 S.W. 2d 939 (l.c. 941); Dimond v. Terminal R. Ass'n of St. Louis, (Mo.), 141 S.W. 2d 789 (l.c. 797); Mo. Power & Light Co. v. Creed, et ux., (Mo. App.), 32 S.W. 2d 783; Mo. Power & Light Co. v. John Hancock Mut. Life Ins. Co., et al., 58 S.W. 2d 321; Peters v. Mutual Life, 107 F. 2d 9, (l.c. 11). (4) Plaintiff's instruction a was erroneous because there is no evidence to support it. Ribello v. C.B. & Q.R. Co., (Mo. App.), 176 S.W. (2d) 670; Dewey v. Kline's Inc., (Mo. App.), 86 S.W. (2d) 622; Yancey v. Mut. Ins. Ass'n., (Mo. App.), 77 S.W. (2d) 149; Barr v. Mo. Pac. R. Co., (Mo.), 37 S.W. 2d 927 (l.c. 930). (5) Outright reversal is required. Plaintiff below, on retrial, could not supply the deficiencies in his case. Williams v. St. Joseph & G.I. Ry. Co., 112 S.W. 2d 118.
Wilbur B. Ennis, Henry Depping, Hale Houts, Hogsett, Trippe, Depping & Houts for respondent.
(1) The doctrine of res ipsa loquitur is not involved on the appeal, Bergfeld v. Kansas City Rys., 285 Mo. 654 (syl. 1), 662, 227 S.W. 106; Grimes v. Red Line Service, 337 Mo. 743, 85 S.W. 2d 767, 768; Heckfuss v. American Packing Co., Mo. App., 224 S.W. 99 (syl. 1); Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W. 2d 91, 94; Ellis v. Railway Co., 234 Mo. 657, 676. (2) The evidence abundantly established the specific negligence submitted. Morris v. E.I. DuPont de Nemours & Co., 341 Mo. 821, 109 S.W. 2d 1222; 346 Mo. 126, 139 S.W. 2d 984; 351 Mo. 479, 173 S.W. 2d 38, 39, 41, 44. McLeod v. Linde Air Products Co., 318 Mo. 397, 1 S.W. 2d 122; McCormick v. Lowe & Campbell Athletic Goods Co., 235 Mo. App. 612, 144 S.W. 2d 866; Scanlon v. Kansas City, 336 Mo. 1058, 81 S.W. 2d 939; Bergfeld v. Kansas City Rys., 285 Mo. 654, (syl. 1), 227 S.W. 106; DeMoulin v. Roetheli, (Mo. Sup.,) 189 S.W. 2d 562, 565; Asbury v. Fidelity National Bank, 231 Mo. App. 437, 100 S.W. 2d 946, 948; Busch & Latta Paint Co. v. Woermann Const. Co., 310 Mo. 419, 276 S.W. 614, 621; Orr v. Shell Oil Co., 352 Mo. 288, 294, 177. S.W. 2d 608, 612; Jacobs v. Frank Adams Electric Co., 97 S.W. 2d 849, 851-2; Erie Railroad Co. v. Tompkins, 304 U.S. 64.
Plaintiff sued for injuries to his right eye which he alleged was caused by the explosion of a defective cartridge negligently manufactured by the defendant. The verdict of the jury was for the plaintiff, and his damages assessed at $3000. From the judgment rendered thereupon, the defendant has appealed.
For convenience, the respondent and the appellant will be referred to herein, respectively, as the plaintiff and the defendant.
The gist of plaintiff's petition, as far as this appeal is concerned, is, in effect, that he purchased from Montgomery Ward & Company a box of shells, which had not been changed or disturbed in any way since delivery by the defendant, the manufacturer of the shells; that the shells were designed to explode instantly upon percussion of a firing pin of a standard make .22 caliber rifle in good condition; that after such explosion and the ejection of a lead bullet thereby, the operator of the gun would pull up the breech bolt, open the breech of the gun barrel, exposing the exploded shell to view, push back the breech bolt and the gun would eject the exploded shell container, making ready for another cartridge; that on the occasion of plaintiff's injury he used a rifle for which said shells were so designed and which was in good condition; that he placed one of said shells in the proper loading place and in the usual manner, pulled the trigger, and the firing pin struck the back end of the shell at a point where the percussion should have caused an instantaneous explosion of the shell, but the shell did not so explode; that plaintiff thereupon raised the breech, exposing the shell, and then, without further percussion or force designed to explode it, the shell exploded, throwing fine bits of metal against the face and into the eye of plaintiff. He pleaded that such delayed action of the shell was due to the negligence of the defendant in the manufacture of the same, in a manner not known to plaintiff, and wholly within the knowledge of the defendant.
For answer, defendant, in substance, denied that it was negligent in any manner, denied that the shell had not been changed or disturbed since its sale by defendant, and further denied that the gun was in good working order. It also generally denied the other allegations of defendant's negligence. It further pleaded contributory negligence.
According to the evidence in plaintiff's behalf he purchased a box of .22 long rifle shells on the Saturday preceding July 4, 1940, from Montgomery Ward & Company at Kansas City. There had been a shortage of supply of such shells prior to that time at the place of purchase. He kept the shells in a dresser drawer at his home until October 20, when he, his wife and little girl, together with Mr. Owen, a relative, went to the latter's farm near Garden City, Missouri, to hunt. When the group was about ready to return home, the plaintiff put his own Winchester rifle in the trunk of the car. Plaintiff then borrowed Mr. Owen's .22 Mossberg rifle and shot a rabbit. He then undertook to shoot at a knot in a nearby post. The trigger snapped, but the gun did not fire. Plaintiff brought the gun down, thinking it was empty, and pulled the bolt back and there was a flash. The bullet was lying in the chamber of the gun. Plaintiff's eyes were from 14 to 16 inches from the shell. When the flash occurred plaintiff felt something strike his eye, and could see nothing after that. Plaintiff had used Owen's gun on former occasions and had had no trouble with it. He had purchased the shells for Mr. Owen's gun, as his own gun used a different type. Plaintiff was taken to Harrisonville, where he received tetanus injection, and later was taken to a hospital in Kansas City, where he was operated on. From the time of the accident he was in great pain. The operation consumed 45 minutes and he was detained at the hospital from five to eight days. There was evidence of his medical expenses, loss of time and permanency of the injuries sustained.
The exploded container of the cartridge involved was introduced in evidence as plaintiff's Exhibit 3, and an enlarged photograph of the same. Also shells shot in the same gun were introduced.
Plaintiff stated, in reference to the gun in evidence, that the purpose of the ejectors is to grasp around the outer rim of the shell and withdraw it from the chamber. He said he had never had the experience of a shell jamming and twisting to one side, and denied that the shell which caused his injury was jammed or twisted. Several weeks after the accident he examined the gun again and did not see any discoloration in the breech such as would be caused by an explosion in the open breech, but said that the gun had been used often since the accident. He said that probably five or ten seconds elapsed between the time he pulled the trigger and the time of the explosion.
Mr. Leslie Owen, brother-in-law of the plaintiff and owner of the farm where plaintiff claims he was injured, said that the gun in evidence belonged to him, and he had kept it at the farm. He said it was in good condition and that he had never had any trouble with it prior to or following the accident. He identified the gun in evidence as the same gun.
On cross-examination Mr. Owen said he had known of cartridges to snap and not go off, and that such shell is known as a "dud". He admitted that his rifle, the gun in evidence, makes a rectangular mark close to the outside of the rim of the cartridge when the firing pin strikes it, and does not make an indentation in the center of the rim. He said he had had experience with bolt action rifles of shell jamming; that is, when the shell would not come up into the chamber, or would come up backward, and sometimes when they would not come up at all. He had had some experience with rifles that had worn so that they would misfire. He had had the rifle in question since 1935. He said upon examination of the gun the following...
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