*1 deadline, or their coerce them to set aside

scruples and arrive at a verdict. The use,

charge, proper prejudice in its did not

Anderton.

AFFIRMED. ux., SCRONCE,

Carl S. et

Plaintiffs-Appellants,

HOWARD BROTHERS DISCOUNT

STORES, INC., al., et

Defendants-Appellees.

No. 81-2420. Appeals,

United Court of States

Fifth Circuit.

July Milutin, Houston, Tex., plain-

John tiffs-appellants. *2 Rehmet, Houston, Tex., could not disengage

Vincent W. for the bolt head from the Howard Bros. bolt unless removed from the rifle. Accord- Scronce, testimony of after ing to the Mrs. Weinstein, Kirk, David B. Dana G. Hous- the accident she discovered the bolt head in ton, Tex., Steyr-Daimler-Puch for of Ameri- pocket a lower front of the overshirt Inc., ca etc. wearing on the range. Scronce was Sheiness, Houston, Tex., Marc A. for a for trial court directed verdict all defend- Stoeger Arms, Stoeger Ind. and Stoeger of ants at the close all the evidence. Inc. granting The standard for a directed ver- dict was established in the case of Boeing Shipman, (5th 411 F.2d Co. Cir. 1969): CLARK, Before Judge, Chief GEE and On motions directed verdict ... the

GARWOOD, Judges. Circuit court should consider all the evidence— just supports the evidence which the GEE, Judge: Circuit light nonmover’s case—but in the and Appellant injured Scronce was when the with all reasonable inferences most favor- 30-06 Steyr sight- Mannlicher rifle he was party opposed able to the to the motion. ing in at a shooting range exploded, injur- If and point facts inferences so ing his right face and Mr. hand. Scronce strongly and in favor of overwhelmingly purchased had years rifle some earlier one party the court believes that individual, Wood, from an Owen who had reasonable men could not arrive at a con- bought from Howard Bros. Dis- verdict, trary granting of the motion is Stores, Inc., Monroe, count in Louisiana. hand, proper. On the other if there is The rifle was manufactured by Steyr-Daim- substantial evidence opposed the mo- ler-Puch, (Steyr), imported by Stoeger A.G. tions, is, evidence and quality of such Arms Corporation (Stoeger), and sold weight that reasonable and fair-minded Stoeger to Howard Bros. At the time of men in the exercise impartial judg- of accident, the rifle had been fired less conclusions, ment might differing reach than 50 times. denied, the motion should be and case submitted to the A jury. mere scintilla Scronce exploded testified that of evidence is present insufficient as he fired the third of three shots on the question for the jury. The motions for day of the accident. undisputed It is that it directed verdict ... should not be decid- rifle, possible to fire the ed by which side has the better of the bolt head place, that it invariably case, nor should they granted only fired, when so type this when there is a complete pro- absence of malfunction could not have happened with bative facts to support verdict. the usual “one-piece” design, bolt and that no warnings accompanied the sale of the Defective Product However, rifle. Scronce testified further that when he shooting arrived at the range brought diversity Scronce case the bolt was inserted in the chamber of the on theories of strict liability negligence. and rifle, that he never removed it from law, governing Under Texas in order to rifle or the bolt head from the bolt while on establish a cause of action based on strict the range, occurred on liability, prove must four basic ele the third and that he defective; did not remove (1) (2) ments: the product is the bolt or bolt head from the rifle product between reached the consumer without sub shots. Experts presented by both change defend- from it the time left ants testified that manufacturer; was im- possession and control of the possible for the accident to happened (3) have product the defective condition of the in the way that Scronce testified because unreasonably dangerous; rendered it

(4) condition accident cannot come about unreasonably dangerous have product injury caused to the user. Re- said it as Mr. Scronce did: on (Second) 402(a) (1965); statement of Torts witness, experts, including § of all his Affiliates, Inc., 416 McKisson v. Sales disengaged could not have while the (Tex.1967). S.W.2d 787 assembly gun, bolt was mounted in the as all if the he said was at times.1 Even ele- parties presence All concede defect, design design was a it well sub- *3 (2), ment was without that rifle prove that a must settled the accident. change at the time of produced injuries. defect his Technical room for doubt may It be that there is Jacobs, 602, 480 604 Chemical Co. v. S.W.2d (1) (3), presence about elements of a (Tex.1972). plaintiffs part a Failure on resulting danger. defect and unreasonable produce credible evidence of causation record, however, is no room On there favor of defend- makes a directed verdict in (4), for serious proof doubt that of element causation, National wanting. proper. is The sole direct evi- ant Shumate & Co. v. Dealers, Inc., actually dence of how the accident Ass’n of 509 F.2d came Securities about, himself, that of Mr. was that (5th 1975). Scronce 153 Here Cir. Scronce he arrived in range at with the bolt in the bolt prove failed to that defect rifle, that he fired it twice without difficul- design responsible explosion. was time, ty, and that as he fired a third it The evidence showed that the accident exploded. Undisputed in the record is that way could not have in the in happened if this rifle be fired without the bolt did; inquiry Scronce testified it our Thus, invariably explode. necessarily, will necessarily ends there. the bolt during head was in the first two firings. Mr. testified that he did Scronce Negligence Warnings — not, recall, or at any removing rate did not argues Scronce lack of any at time after he came to the warning as to the consequences firing range and before his Thus we are injury. without the bolt head raised fact issue to left, credited, if Scronce’s with by jury. Appellees be decided assert practical certainty that between the warning that a that the rifle would second third shots the bolt head was if place fired without the bolt head in removed replaced and the bolt without case, have made no difference in this since leaving the rifle sure to malfunction on the Scronce testified that he never inserted the third as it did. into rifle without the bolt head No version of the accident Further, to it. attached testified Scronce accepts the account of explains Mr. Scronce that he had knowledge of bolt-action rifles it. that do Many might do so: that the and that he had literature in about rifle bolt head had been removed and the bolt question home. He further testified that inserted without it before Mr. Scronce came using he had been firearms for some 30 to the range, the rifle exploding on the first disassembled, reassembled, years, had re shot; the barrel of the ob even paired, and customized firearms be structed, causing explosion; Again, prove fore. Scronce failed to causa explosion round; by was caused a defective tion, an essential element in his cause of that Scronce removed the head after the inadequate warning. action based on second shot and inadvertently reinserted are, the bolt with it absent. These one and There is no indication the briefs that all, no speculation, more than sup ipsa loquitur the doctrine of res was in- port events, in the evidence. All that is certain is voked in this case. At all the mech- observing, cannot, however, knowledge. simply 1. In so we hasten to add that we do mon We any imply against not in mony sense that Mr. Scronce’s testi- assume events favorable to his cause his disingenuous. phenomenon testimony, any speculate The more we than can immediately preced- diminished recall of events about such scenarios as we note in text above ing physical against a sudden shock is matter com- it.

1207 firing pin). Again, broken there was sim- anism was in Mr. control at all See, relevant times. Marathon Oil Co. this, ply dispute no serious about it was Sterner, (Tex.1982). ap- It S.W.2d by physical established reliable examination pears that the lack of adequate warning and all parties recognized. so ground was the only said con- majority possi- several hypothesizes stituted negligence. Though explosion (i) causes explosion, ble of the viz: defec- itself is circumstantial evidence of either a ammunition; (ii) tive obstruction of the ri- defect or negligence part on the of some- barrel; (iii) fle fired without being one, provide any Scronce failed to other the bolt head. credible evidence of such and failed to prove all necessary elements of the causes sug- No one connected with the case has pled. of action gested any other possibility, and none is raised the evidence. AFFIRMED. In view of the virtually undisputed evi- GARWOOD, Judge, dissenting. Circuit dence that at the time of *4 dissent, I respectfully I believe there head, rifle was fired without the bolt and

was some evidence from which jury the the further evidence that such firing would could explosion find that the was caused inevitably cause the rifle explode to as it rifle, the allegedly defective design of the did, jury the was certainly liberty at to it allowed to be without the fired disregard hypotheses (i) (ii) above, and and bolt place head in and allowed the bolt head to conclude that hypothesis some form of separated become easily too from the (iii) was correct. This hypothesis is also bolt when out of the barrel. circumstantially slightly supported by the The following matters are affirmatively plaintiff’s of wife that after the beyond established question: the rifle did explosion she found the detached bolt head it; when Scronce fired it could and pocket in a of the shirt was wear- head; would fire without the if the ing exploded. when the rifle rifle head, were fired without the bolt it Additionally, hypothesis (i), as to there would inevitably explode as it in fact did not only was no evidence of defective am- explode; the bolt was removable and de- munition, but parties signed before trial all signed so that when outside rifle its an agreed motion to dismiss the ammuni- detached, head could be and it could be tion manufacturer reciting parties “all are inserted without the head. agreement that the ammunition in use at Additionally, there was evidence affirma- the time of the occurrence made the basis tively establishing that when the rifle ex- of this lawsuit ... was not defective.” Re- ploded it head, was fired without the bolt (ii), specting hypothesis sugges- there is no (or and there was no evidence no evidence it, tion in support surely the record to and other than of the most attenuated circum- experts defendants’ who examined the nature) to the contrary. The de- rifle would have suggested possibility this expert fendants’ Freer testified “there is no were it consistent with physical evi- question at all but that the bolt head was Also, body dence. the bolt a cartridge had not on body the bolt the time the noted, impaled base on as above which is fired,” was that “we could determine that not suggestive of an obstructed barrel. by the condition of the bolt when I exam- Moreover, evidence, it,” was in and it ined and that examination of the bolt presumably signs having shows no been showed no damage to it. Another sum, expert defendants, McDaniel, fired with the barrel In obstructed. testified to effect, the same as did evident plaintiff’s expert hy- obstructed barrel (who McDonald pothesis also testified was not more specifically the bolt discount- body, head, minus the damaged was and the ed only because it was so obvious to all that base of a cartridge was impaled on the possible was not a alternative. then, (perhaps pocket) it in his shirt jury putting could conclude —in-

Plainly, deed, required was to conclude— virtually inadvertently reinserted it without the bolt explosion head, that the cause of the was the rifle having disengaged the head become how being fired without the bolt head. But from the bolt while the bolt was out of the when this happen? connection, did it may barrel. In this be noted plaintiff’s expert testified the bolt The majority says was not free readily head “will come loose outside the that, to find between the second and third rejection hy- of this gun.” majority’s The shots, head, being the bolt attached to the to be on pothesis appears based barrel, bolt in the came loose and fell out he testimony that did not remove barrel, experts say because all the between the second and third rounds. physically happen. agree. could not I However, testimony, as I read the majority rejects hypothesis also saying thought that he he did not re- initially bolt was inserted in the barrel bolt, move not sure and but that he was head, without but did not cause an remember, really opposed say- did not as round, because, explosion until the third as ing positive that he was he did not remove testified, all experts inevitably it would it. Scronce also testified that it was not explosion cause an on I Again, each round. unusual at the remove the bolt range to Likewise, agree. majority rejects between rounds on various occasions.2 The hypothesis that the explosion occurred on majority correctly notes that “diminished round, the first the bolt having been insert- recall preceding of events immediately ed without because Scronce un- physical sudden shock is a matter of com- testified, retraction, equivocally instance, knowledge.” mon In this the jury did not occur until the applied knowledge could have such common conclusion, third round. I cannot fault this *5 and decided that party testimony for a Scronce’s should not be allowed to recover on not inconsistent with the hypothesis that theory variance with his clear and the bolt was deliberate removed between the second testimony of what he actually observed, where there is third shots. no basis on which to question his to ability accurately.1 do so Accordingly, the case was in posture. is, however, undisputed

There It was remaining hypoth- exploded one that the rifle esis, namely on when occurred Scronce fired that it could be fired the third having head, removed the without the bolt and that if so fired bolt from the barrel after the second shot would inevitably explode as it did. All hy- By reasoning, reject during 1. you same we can such instances that have re- hypothesis explo- gun? there was more than one moved the bolt from the sion. “A Yes. done, things When those are what do “Q they generally do with the bolt? was as follows: Usually lay “A it beside the on the you Did ever remove the bolt from the “Q bench. you rifle while were at Carter’s [the you any doing Do have recollection of “Q shooting range]? on October 1977? no, my knowledge, “A Not to sir. No, “A sir. I don’t remember whether I any safety precautions Are there “Q removed it or whether it was left you firing range might take in the gun. gun, I left in believe was but you occasion Yes, to remove the bolt? I'm not sure. they speak- “A sir. When have a loud your That is Yes, best recollection? “Q system, warning system er [Emphasis “A sir.” added.] gives people opportunity put up an to He also testified: targets. people putting And when are have, Scronce, you any Do Mr. recollec- “Q up targets, everybody required having tion of removed the bolt from the open their bolt. And sometimes on oc- gun between the second and third shot that, you casions like would remove the any reason? bolt. No, sir, any “A I don’t have recollection of Have there ever been times at Carter “Q doing that.” shooting range shooting ranges or other potheses for the cause of the explosion oth- being

er than the rifle fired without the effectively

bolt head were eliminated.

And, expert testimony and physical evi-

dence showed clearly that when the rifle

exploded it was in fact fired without the circumstances,

bolt head. In these jury (if normally compelled) free exploded

conclude that when it head,

was in fact fired without the bolt this was the cause of the explosion.

Perhaps could not so find if

Scronce’s testimony, taken with other un-

disputed evidence, was affirmatively incon-

sistent with the being bolt head out of the

rifle at this time. But there is no such clear

inconsistency. hypothesis that between

the second and third rounds Scronce re- bolt,

moved the that the bolt head became

disengaged, and that he thus inadvertently

inserted the bolt without the has not case,

been being eliminated. That find,

jury was free to based on the physical

facts positive and clear and expert testimo-

ny, that the rifle was fired without the bolt exploded, when it and to infer that

this was the explosion. cause of the *6 STACY, Petitioner-Appellee,

William Earl LOVE, Warden; Leech,

Aileen William

Attorney General of the State of Ten-

nessee, Respondent-Appellant.

No. 81-5312.

United States of Appeals, Court

Sixth Circuit. 28,

Argued Jan. 1982.

Decided June