*2 UTTER, Before KENNEDY and GON- ZALEZ, JJ.
OPINION UTTER, Justice. liability case. This products
This is a gun- suit arose as a result of an accidental ther, step-father closed the receiver and in- by appellee wound suffered shot time, shotgun, shotgun. which was At that 12-gauge flicted by appellant In- imported Appellee distributed discharged from its left barrel. (hereinafter Corp. ternational Armament shin, just left struck below brought IAC). Appellee originally suit knee, majority the load exited *3 against shotgun the manufacturer of the through upper undisputed his calf. It is Oshman’s, appellants IAC and the re- and the the was on at time Only have tail IAC and Oshman’s seller. appellee’s discharge step-father’s and that trial appealed judgment of the court. the trigger. a result hands were not on the As issues, special the the response to wound, appellee suffered gunshot of inju- appellee’s for appellants found liable foot, left permanent loss of use of his some exemplary ries awarded him actual and and permanent disfigurement. plus totaling attorney’s fees damages and sought pleadings, appellee In his to trial $1,799,053.60. We affirm. damages against appellants under recover 1979, appellee pur- of September theory importing, for distrib- liability strict 12- side-by-side a double barrel chased shotgun uting marketing or that was par- from This gauge shotgun Oshman’s. unreasonably dangerous due to a defective weapon by was marketed IAC under ticular appellee for failure to warn of and Gauge.” The name “Star brand design. Appellee also said defective by IAC weapon was manufactured for sought recovery warranty for breach of Spanish Appellant im- arms manufacturer. merchantability, quality for in- and fitness ported and several hundred these sold sought recovery Appellee also tended use. country 20 and shotguns both gross negligence negligence and approximately two-year gauges over inspect to appellant alleged IAC’s failure period of time. sought weapon. Finally, appellee test shotgun, Shortly purchasing ap- after recovery from under TEX.BUS. He pellee hunting went with relative. seq., 17.41 et ANN. Sec. & COM.CODE experienced right in the repeated misfiring (Vernon Supp.1984) of Texas Consumer not, how- weapon. He did chamber Deceptive Trade Practices Act. Protection — Oshman’s, ever, nor weapon return the appeal, Appellants, on do contest weapon inspected by a did he have the damages findings awarding actual gunsmith. appel- On November exemplary do contest the award but subject lee and several relatives took attorney’s and fees. shotgun weapons other to a rela- and some through points In its first fifth target Appellee’s practice. tive’s farm for sufficiency of appellant IAC attacks the attempted appel- fire first brother-in-law jury’s findings shotgun. weapon The the evidence again malfunc- lee’s through 15 17. In pro- Special Appellee’s step-father, who Issues tioned. issues, jury found: expertise weaponry, response then to these certain fessed inspected it. He first took the Issue No. 9 shells from the chamber removed the give an IAC failed to That defendant firing the receiver pins inspected warning, at time it sold the adequate step-father was look- assembly. While his danger question, of the that such gun in shotgun, appellee walked down- at the “safety” and gun fire when on could up firing line and set some range from the triggers. engagement with targets and being used as cans which were As wind. over blown had been Issue No. his walking back towards appellee began IAC to failure of defendant That such his completed step-father step-father, shot- danger rendered warn of reloaded inspection dangerous unreasonably into the chamber. When shells step-fa- as marketed. in front of to four feet was two Issue No. 11 that there is insufficient sup- evidence to port the award exemplary damages. That such failure to warn of such by defendant IAC was an “unconsciona- proper awarding test for ex ble action.” emplary damages is whether or not the evidence of IAC’s conduct demon
Issue No. 12 strates “that entire want of care which would raise the belief that the act or omis That such failure was producing cause complained sion of was the result of a in question. occurrence
conscious
right
indifference to the
or wel
person
fare of the
persons
to be affected
Issue No. 13
by it.”
Royalty
Walls,
Burk
Company That
knowingly engaged
defendant IAC
(Tex.1981);
some
It is clear from
finding
some evidence
very
appellant IAC
from the
was aware
gross negligence.
Id.
weapons
poorly
beginning that these
It is
from the
manufactured.
also clear
to the
find-
evidence favorable
knew that
gross
evidence that
IAC
negligence
is as follows: Russ
Moure,
weapons,
they
properly
if
were not
Engineering
ap-
Director of
these
J.
IAC,
type
de
pellant
sys-
admitted that the
manufactured with this
*5
capable
firing
weapon
sign,
of
while the safe
used on the
would allow the
were
tem
appellee’s expert,
ty
engaged. Finally,
if
was
gun
trigger
fire
the
sear1 malfunc-
Tedford, opined
that, contrary Charles
He further
tioned.
testified
inspect
parts
advertisements,
failure to
the internal
weapon
IAC’s
to IAC’s
was
question
constituted
not assembled and finished with meticulous
to the welfare and
conscious indifference
major
parts
nor were all the
internal
care
would hold
of its ultimate user. We
completely machined
the mov-
nor were all
the aforementioned evidence consti
operation.
ing parts polished for smooth
appellant IAC
tutes some evidence that
that, at
time IAC
Moure also testified
appellee’s
consciously indifferent
was
marketing
they re-
weapon,
considered
safety.
there
We hold
welfare
shipment
weapons
of
from
eight
ceived a
upon
could
was evidence
which
of
two
the manufacturer
which
first
negligence on
finding
gross
of
base its
inspected
test-fired and were
com-
were
part.
appellant IAC’s
internally
externally.
There-
pletely,
after,
complete
IAC conducted a
break-
that the two
holding,
In so
we are aware
inspection
every
of
out of
down
two
twen-
cases,
punitive
most recent Texas
weapons
it
from the
ty-five
which received
products
in a
liabili
were allowed
manufacturer. Mr. Moure further testified
prior
evidence of
ty case had considerable
that,
very
IAC was
beginning,
from
part
of the defend
knowledge
actual
weapons
that these
were not meticu-
Co.,
aware
Rawlings Sporting
Goods
ant.
lously
(Tex.Civ.
manufactured and contained cosmet-
Daniels,
Inc.
cosmetic defects were to
n.r.e.),
ic defects. These
the evi
App.
writ ref’d
— Waco
of
first 700
the extent that 150 out
clearly
that the defendant
dence
showed
rejected.
IAC
Ulti-
its
guns
dangerous propensity
received
were
knew
mately,
importing the
specific
IAC discontinued
product
happening
from the
continuing
weapons
prob-
plaintiff
com
because
of which the
occurrence
steps
the manu-
yet
cosmetic defects from
took no
to correct
plained
lems with
Likewise, in
plaintiff.
Ted-
Appellee’s expert, Charles
or warn the
facturer.
defect
Nowak,
ford,
parts in
gunsmith,
Company
testified that the
Ford Motor
593-594,
clearly
the evidence
offending weapon
qual-
of inferior
at
specific pri-
defendant had
ity and that the sear and hammers were
showed
gun
the hammer of a
at
cock
halfcock.
1. The catch that holds
or
knowledge
or
of the defect
determined in relation to safer alterna-
reports
from its own test results and from
tives, the fact that its risk could be di-
type
of occurrences of the same
accident of
easily
cheaply may
minished
greatly
plaintiff complained. Again,
which the
influence the outcome of the case.
record established that the defendant made
relative,
feasibility
... This
is a
not an
a conscious decision not to correct the de
absolute, concept;
specifically
the more
fect or
potential
warn the user of the
dan
economically
feasible the alternative
ger.
was,
likely
jury may
the more
that a
find
However,
Supreme
holding
Court’s
product
defectively
de-
Walls,
Royalty
supra,
Burk
Co. v.
does not
signed.
plaintiff may
A
advance the ar-
require
showing
knowledge
of actual
gument that a safer alternative was fea-
predi-
condition or circumstances as a
sible with evidence that it was in actual
finding
gross
cate for the
negligence.
use or was available at the time of manu-
facture. Feasibility may
The standard to date in this state
also be shown
determining
culpable
mental state
with evidence of the scientific and eco-
gross negligence
capacity
develop
nomic
the safer alter-
set forth in
Royalty
Burk
Co. v.
Con/Chem, Inc.,
Walls:
native.” Kindred v.
may
“A mental state
be inferred from ac
injury. [Citations omitted.] design in the product is the defect opinion fectiveness of the
419
case,
begins with the voir dire
even
allow the hammer to release
would
closing argument. Stan-
engaged.
ends with the
when
Reese, v.
Fire Ins. Co.
dard
comparison
of defec
to
at 839-840.
v.
Kindred
tive
tendered
Con/Chem, Inc.,
(Tex.1983);
S.W.2d 61
have
appellants
650
Initially,
note
we
Houston,
Bailey,
v.
Inc.
609
Boatland
complete
record
present
us
to
with
failed
of
v.
(Tex.1980);
Turner General
743
failing
S.W.2d
to include in the
by
in this cause
(Tex.1979);
Corp.,
things. of the suffi prove He has the burden IAC (2) trial pro- ciency of the evidence to an error that was not invited or voked, (3) preserved by exemplary damages that was court’s award grant predicate, objec- as failure of the trial court proper trial an rule, tion, instruct, “the general a motion or a motion for remittitur. As *7 grounds of mistrial, (4) by jury will disturbed on was not curable an not be instruction, any probative if evi prompt there withdrawal excessiveness the award.” Texas Con statement, reprimand by or dence sustain Austin, Inc. Co. struction Service only are rare instances judge.... There Allen, (Tex.App. Corpus argu- improper harm from of incurable — n.r.e.). 1982, We will not writ ref’d complainant ment. The has the further Christi (5) argument judgment prove that the substitute our burden jury nature, degree jury unless the record indicates and extent constituted its im long by passion, prejudice or How the was influenced reversibly harmful error. Express Lines proper motive. Armellini continued, argument whether it was re- Florida, Ansley, Inc. whether there peated or abandoned and Christi writ proper inquir- (Tex.Civ.App. Corpus cumulative error are was — n.r.e.). if, Only after review closely must ref’d All of be ies. evidence, (6) argu- award is so excessive we find the to determine examined grant we as conscience will effect a material find- to shock our probable ment’s award not jury (7) Importantly, reversal must remittitur. We find ing. improp prejudice by any passion, whole an evaluation of the tainted come from motive, er nor do we high find it so as to DISSENTING OPINION shock our Appellants’ conscience. eighth GONZALEZ,Justice, dissenting. points and ninth of error are overruled. I respectfully my opinion, dissent. In In points their final two appel there is no evidence to an award of complain lants jury of the action of the exemplary damages attorney’s fees. trial in awarding attorney’s court fees to parties The sharply disagree as to what appellee. previously mentioned, As appel- the record Appellants shows. assert that brought against lee suit under the record shows that appellee’s shotgun alternate theories of recovery under TEX. could fire while on safety with no engage- BUS. & COM.CODE ANN. Sec. 17.41 et ment of trigger only par- because that (Vernon seq., Supp.1984) of the Texas Con ticular had a manufacturing defect. sumer Deceptive Appellee Trade Prac asserts that the record shows that Protection — (hereinafter tices Act Act”). gun, “the and other shotguns Section the same 17.50(d) design, could fire while on provides Act without that each con engaging trigger with or without a “prevails” sumer who shall be awarded manufacturing Therefore, defect. a more attorney’s However, fees. this section explanation detailed of the contentions of must be read within the context of the Act parties transpired and what in the trial to mean prevails each consumer who in a necessary court is properly in order to eval- brought cause of action under the Act shall appellants’ points uate of error. attorney’s be awarded fees. Stuckey v. September 1979, appellee purchased White, 647 (Tex.App. S.W.2d 35 — Houston shotgun from one of the Oshman’s writ). The [1st Dist.] sporting goods stores in Houston. The therefore is whether appellee or not ob shotgun was Spain manufactured in by Ar- any tained recovery under the Act. Coop, mas Erbi S. and was marketed under the brand Gauge” name “Star in this coun- only issue submitted to the try by International Corporation Armament jury germane to a recovery under the Act (Interarms), a Corporation. Delaware Special Issues through Numbers Five November appellee severely was in- Eight which found shotgun was jured Marlin, leg Texas. This unfit for its intended use and that such happened shotgun when the accidently unfitness was a producing cause of the discharged as his father-in-law closed the appellee’s injuries. 17.50(a)(2) Section safety. breach while it was on provides the Act for recoveries for breach Appellee Interarms, against filed suit Ar- express implied warranty. Clearly, Oshman’s, alleging, mas Erbi and among findings constitute a several recovery, theories of liability strict implied had breached its tort specifically pled warranty of ordinary pur fitness for the that “The unreasonably dan- poses for which goods are used. gerous due to the defective and/or TEX.BUS. & COM.CODEANN. Sec. 2.315 cocking manufacture of its (Vernon 1968). Therefore, find mechanism and further defective due to the ing that warranty breach of was a *8 defective manufacture of the left sear and producing cause of appellee’s injuries is hammer, were, left all of which collectively sufficient to sustain the award of attor singularly, producing, a or alternatively, ney’s Appellant’s fees. tenth and eleventh proximate a damages cause of the suffered points of error are overruled. by and plaintiff.” Appellee sustained judgment The of the trial court is AF- alleged liability Deceptive also under the FIRMED. Trade Practices Act.1 brought Matagorda County 1. The suit was plea privilege in on Oshman’s filed a to be sued in the basis that Oshman’s had a retail County outlet there. Harris and thereafter filed a motion for shotgun supplied by 4. That the Inte- through Secretary of Though served Office, an Armas did not file and was unfit for the Erbi rarms Oshman’s State’s denial, general Oshman’s filed a shot- ordinary purposes answer. for which such appellee that was used; further answered and guns are Inte- shotgun. in the use of the negligent pro- a unfit condition was 5. That said and also general filed a denial rarms also ques- in of the occurrence ducing cause (1) appellee negligent: was answered that tion; shotgun failing return his to Inte- by give failed to an ade- 6. That Interarms discovering that it repairs after rarms warning it that quate at the time sold (2) malfunctioning; by failing to have was shotgun shotgun danger of the that such repaired by gun- a examined “safety” no would fire when on and with discovering it mal- after that was smith trigger; engagement and, functioning; (3) by to use continuing by to warn Inte- 7. That such failure discovering it shotgun after that was shotgun unreason- rarms rendered that malfunctioning. Interarms also filed marketed; ably dangerous as against Erbi for indem- cross-claim Armas nity contribution. failure of Interarms to warn 8. That the ac- danger was an unconscionable selected, appellee jury After the was tion; (1) alleged: trial amendment and filed a shotgun knew that Interarms producing 9. That such failure was engaging fire while on without could question; in of the occurrence cause (2) poten- trigger; that it failed to warn knowingly engaged 10. That Interarms fact; and, (3) tial users of this was action; in such unconscionable jury action. After the an unconscionable 11. of Interarms to ad- That the failure argument, appellee trial filed another danger equately warn alleging the failure of amendment fire on “safe- shotgun would Interarms to warn of the engagement trig- ty” and with shotgun while on could fire reckless, ger constituted wanton and gross engaging trigger was without conduct; grossly negligent negligence. negligent 12. was appellee That 33% to the Before of the case submission question, Inte- occurrence jury, appellee abandoned its claim of negligent; rarms was 67% defect, manufacturing only product and the by Interarms 13. That such conduct jury defect issues submitted to proximate cause of the occurrence was a pertinent to claims of defective in question; (failure warn). marketing and a defect appellee 14. That should be awarded response special issues sub- $45,000.00 $234,053.00 damages, actual mitted, found: fees, $1,500,000.00 exempla- attorney’s shotgun defectively 1. de- That the against Interarms ry damages signed at the time it was manufactured $4,000,000.00 exemplary Erbi; by Armas against Armas Erbi. defective at 2. That the possession granted Inte- appellee’s it left the motion the time trial court rarms; jury findings as to his disregard the $1,799,053.00 negligence rendered a producing That such defect was 3. against appellants.2 question; judgment cause of the occurrence prior Supreme Court tried to the court over- 2. This case was of counsel. The trial substitution Co., privilege plea of on the basis v. Cessna ruled the decision Duncan (Tex.1984). Aircraft plea privilege invok- Oshman’s waived its *9 court, is, by jurisdiction that not subject privi- making plea motion to such lege. 422 appeal,
On appellants challenge do not fest a deliberate disregard for human wel- judgment to the fare. as award of actual damages by legal and but factual insuffici- bar, In the case at the record shows that ency complaints, appellants challenge do Interarms marketed Gauge Star before way jury, case submitted to the shotguns in country, they this completely jury responses and the award of exem- inspected shotguns some test-fired plary damages attorney’s fees. Furthermore, thereafter, the same model. every twenty-five shotguns
two
out
similarly
inspected.
were
broken down and
EXEMPLARY DAMAGES
guns
rejected
Many of
were
for cosmet-
inherently dangerous.
Guns are
See 94
reasons,
rejected
ic
but none were
for man-
§ 28(a).
Weapons
C.J.S.
It is
obvious
ufacturing
Therefore,
defects.
I disagree
they
most adults that
should
handled
be
with the majority’s conclusion that
great
with
caution. The record
that
shows
supports
jury finding
record
that Inte-
both
and his father-in-law were
completely
rarms was
appel-
indifferent to
potential
well
danger
aware of the
of shot
rights by consciously disregarding
lee’s
guns
prior
its
use on the occurrence
rights,
safety.
particu-
welfare and
This is
in question,
were
both
aware that the shot
larly true since there
no evidence
is
connection,
gun had
a malfunction.
this
Interarms was
should
aware or
have been
Gauge
there is no evidence that the Star
any special
ordinarily
aware
hazards not
dangerous
any
is
more
com
when
shotguns.
with
For
connected
these rea-
pared to other models.
It is
in
therefore
sons,
majority
I believe that
has
too
the majority
credible to me that
has based
Supreme
read
broadly
holding
our
Court’s
liability
punitive damages
on the basis
Walls,
in
Royalty
Burk
Co.
616
supplier
that the
failed
user
to warn the
(Tex.1981),(which
not a
is
strict liabili-
discharge, particu
of accidental
case).
ty
agree
I
in tort
While
that the
larly when there was no
gross negligence may
evidence of
come
Gauge
general
pro
Star
in
models
had
facts,
surrounding
from all
circum-
pensity
to fire
no one
while
with
conditions,
at
stances
Id.
there
engaging
trigger.
See Restatement
be
must also
evidence that
conduct was
Torts,
(Second)
j.
Sec.
Comment
knowingly
committed
the defendant.
(1965);
Cerda,
Blackwell Burner Co. v.
plaintiff
“The
must show
the defend-
(Tex.App.
Antonio
consciously,
knowingly,
ant
i.e.
indif-
— San
n.r.e.); Dougherty
rights,
writ ref 'd
v. San
to his
and safety.”
ferent
welfare
Inc.,
(5th
(Emphasis added.)
ta Fe
423 (one safety gross negli and that such which blocks appellee’s I find evidence Rawlings sear) In than the would in gence totally insufficient. the hammer rather Daniels, Co., v. Goods Inc. discharges 619 more Sporting prevent fact accidental 1981, 435, (Tex.Civ.App Gauge in shot 440 the Star S.W.2d than the — Waco n.r.e.), clearly the evidence writ ref’d an alter Simply demonstrating that guns. knew (one that the defendant showed that blocks design is available native dangerous product of its from propensity hammer) to establish is not sufficient specific occurrence of happening existing design is defective. Da that an plaintiff complained yet and took which the Co., (5th berko v. Heil F.2d 445 Cir. steps to or warn the no correct defect 1982). v. Likewise, Ford Motor Co. plaintiff. stated, Simply there is no evidence Nowak, 582, (Tex.App. 638 S.W.2d 593-594 appel- aggravated element which raises 1982, n.r.e.), the —Corpus Christi writ ref’d is, gross negligence; that lants’ conduct to opinion majority was that the basis for the or should have known appellants that knew clearly the defendant evidence showed that fire, in the manner that this could prior knowledge of the defect specific had that discharged in which it and and question from its own test results not to consciously deliberately chose from occurrences of the exact nature danger. of the known Ab- appellee warn plaintiff complained, evidence, no evidence to sent this there is made that the defendant record established appellants’ that correct de a conscious decision “reckless, grossly wanton and conduct was potential the user of the dan fect or warn negligent” appellants’ that conduct ger. action.” was an “unconscionable bar, Returning to the case at the record opinion that I am therefore of only particular design has reflects be re- judgment of the trial court should years for 104 and has been existence recover versed and rendered other than been used manufacturers only damages. his actual Erbi, weap- Armas the manufacturer question. on in There is no evidence in the any Gauge shotguns
record that other Star en-
had fired while on without ever
gaging trigger. There is no evidence pro- test which indicate this any results of one pensity, any nor is there evidence LEWIS, Appellant, Harry Douglas to the single previous occurrence similar injuries.4 appellee’s one which caused any is no evidence of of the factors There Texas, Appellee. The STATE of Corp., listed in Turner v. General Motors No. 05-83-00115-CR. (Tex.1979), reiterated Inc., Con/Chem, Kindred Texas, Appeals Court 61, (Tex.1983) jury with which the Dallas. utility product verses weigh June 1984. no in its There was the risk involved use. discharges are less that accidental Rehearing July 1984. Denied words, design. other other likely any “fix”, no evidence of there was design existed that was alternative
that an economically
mechanically and feasible 9, 10, it believed special The court in effect told issues numbers 4. shotguns "danger” of a in all it existed a controverted fact when such trial court assumed spoke "danger” was design, and that “of that such could fire similar triggers." ‘safety’ engagement to Interarms. known with