[Cite as Cook v. Sportsman's Den, Inc., 2011-Ohio-3482.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
HORACE D. COOK, JR., ET AL. JUDGES: Hon. William B. Hoffman, P.J. Plaintiffs-Appellants Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J. -vs- Case No. 10CA131 THE SPORTSMAN'S DEN, INC.
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 08CV2221
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 12, 2011
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
D. KIM MURRAY MARK F. FISCHER Brown, Bemiller, Murray, McIntyre Fischer, Evans & Robbins, Ltd. & Haring, L.L.P. 4505 Stephen Circle, N.W. - Suite 100 24 W. Third St., Suite 206 Canton, Ohio 44718 Mansfield, Ohio 44902 Richland County, Case No. 10CA131 2
Hoffman, PJ.
{¶1} Plaintiffs-appellants Horace D. Cook, Jr. and Katherine A. Cook appeal
the October 26, 2010 Judgment Entry on Verdict entered by the Richland County Court
of Common Pleas, rendering judgment in favor of defendant-appellee The Sportsman’s
Den, Inc., following a jury trial.
STATEMENT OF THE CASE AND FACTS
{¶2} Appellant Horace Cook sustained severe injuries after the muzzle-loading
rifle he purchased from Appellee exploded during use. On December 10, 2008,
Appellants filed a Complaint in the Richland County Court of Common Pleas, alleging
Appellee was negligent for contemporaneously selling Horace Cook smokeless
gunpowder with the muzzle-loading rifle. Appellants asserted Appellee was aware of
the fact Horace Cook intended to use the smokeless gunpowder with the muzzle-
loading rifle and should have prevented him from making such purchase.
{¶3} The matter came on for jury trial on October 14, 2010. The following
evidence was adduced at trial.
{¶4} Horace Cook was an experienced hunter, but had limited experience in
the use of muzzle-loading rifles. On December 23, 2006, Horace Cook purchased a
muzzle-loading rifle, bullets, sabots, plastic tabs, primers, a sling, and smokeless
gunpowder from Appellee’s Shelby, Ohio sporting goods store. Horace Cook could not
recall which employee assisted him nor could he provide a description of the
salesperson. The only identifying feature Horace Cook remembered about the
employee was that the individual was a male. According to Horace Cook, the employee
accompanied him through the store and picked out a number of accessories for the rifle. Richland County, Case No. 10CA131 3
The employee also accompanied Horace Cook to the area of the store in which
gunpowder is located. Horace Cook testified the employee either picked out the
smokeless gunpowder or observed him select the smokeless gunpowder. Thereafter,
Horace Cook took the merchandise to a cashier and made his purchase.
{¶5} Horace Cook reviewed the 16-page owner’s manual included with the rifle
in order to determine the proper load. He acknowledged he skipped the pages
dedicated to the safety warnings. One of the warnings clearly states never to use
smokeless gunpowder with the particular muzzle-loading rifle Horace Cook purchased.
Horace Cook additionally conceded he did not read the warning printed directly on the
rifle, which states to use only black powder or black powder replica in the rifle, or the
warning on the box of smokeless gunpowder, which states never substitute smokeless
gunpowder for black powder and never use smokeless gunpowder in muzzle-loading
firearms.
{¶6} During a hunting trip on December 27, 2006, Horace Cook used his new
muzzle-loading rifle for the first time. Horace Cook attempted to fire the rifle two or
three times, but the rifle would not fire. He replaced a cap and tried to fire the rifle once
again. When the rifle finally fired, it exploded, causing severe injuries to Horace Cook.
{¶7} Every male employee who could have been working for Appellee on
December 23, 2006, the day Horace Cook purchased the rifle and gunpowder, testified
at trial. Each employee testified regarding his employment history with Appellee, his
familiarity with muzzle-loading rifles, including the safe and proper usage of such a
firearm, and his familiarity with the rifle Horace Cook purchased. Each employee
responded in the negative when asked if he had waited on Horace Cook on December Richland County, Case No. 10CA131 4
23, 2006. Gregg Griffeth, the owner of Appellee, also testified regarding his familiarity
with muzzle-loading rifles, including the safe and proper usage of such a firearm. One
employee noted smokeless gunpowder and black powder are kept in different sections
of the store. Griffeth indicated he would not give a customer smokeless gunpowder for
use with a muzzle-loading rifle.
{¶8} After hearing all the evidence and deliberating, the jury returned a
unanimous verdict in favor of Appellee. The trial court entered judgment in favor of
Appellee via Judgment Entry on Verdict filed October 26, 2010.
{¶9} It is from this judgment entry Appellants appeal, raising as their sole
assignment of error:
{¶10} “I. THE JURY VERDICT UPON WHICH FINAL JUDGMENT WAS
ENTERED IN THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
{¶11} Herein Appellants argue the evidence at trial amply demonstrated Horace
Cook was a rookie with respect to muzzle-loading rifles, and Appellee owed him a duty
to ensure he purchased the appropriate gunpowder for the firearm.
{¶12} In a civil action, an appellate court may not find the judgment to be against
the manifest weight of the evidence if such judgment is supported by competent,
credible evidence. C.E. Morris, Co. v. Foley Construction Co. (1978), 54 Ohio St.2d
279; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. In determining whether a
jury's verdict is contrary to the manifest weight of the evidence, an appellate court does,
to a limited extent, weigh the evidence and consider the credibility of the witnesses in
order to insure against a miscarriage of justice, keeping in mind, however, that those Richland County, Case No. 10CA131 5
matters are primarily for the trier of the facts to decide in either a civil or criminal case.
See, State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.
{¶13} “The discretionary power to grant a new trial should be exercised only in
the exceptional case in which the evidence weighs heavily against the conviction.” State
v. Thompkins (1997), 78 Ohio St.3d 380, 387 (Citations omitted). Accordingly, before an
appellate court will reverse a judgment as against the manifest weight of the evidence in
a civil context, the court must determine whether the trier of fact, in resolving evidentiary
conflicts and making credibility determinations, clearly lost its way and created a
manifest miscarriage of justice. Gonzalez v. Henceroth Enterprises, Inc., (1999), 135
Ohio App.3d 646.
{¶14} As set forth supra, every one of Appellee’s male employees who could
have been working on December 23, 2006, as well as Appellee’s owner, testified he did
not wait on Horace Cook nor would he have allowed smokeless gunpowder to be sold
to a customer for use in a muzzle-loading rifle. This evidence alone constitutes
competent, credible evidence which supports the jury’s verdict. As the trier of fact, the
jury was free to accept or reject any or all of the testimony of the witnesses. The jury
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[Cite as Cook v. Sportsman's Den, Inc., 2011-Ohio-3482.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
HORACE D. COOK, JR., ET AL. JUDGES: Hon. William B. Hoffman, P.J. Plaintiffs-Appellants Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J. -vs- Case No. 10CA131 THE SPORTSMAN'S DEN, INC.
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 08CV2221
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 12, 2011
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
D. KIM MURRAY MARK F. FISCHER Brown, Bemiller, Murray, McIntyre Fischer, Evans & Robbins, Ltd. & Haring, L.L.P. 4505 Stephen Circle, N.W. - Suite 100 24 W. Third St., Suite 206 Canton, Ohio 44718 Mansfield, Ohio 44902 Richland County, Case No. 10CA131 2
Hoffman, PJ.
{¶1} Plaintiffs-appellants Horace D. Cook, Jr. and Katherine A. Cook appeal
the October 26, 2010 Judgment Entry on Verdict entered by the Richland County Court
of Common Pleas, rendering judgment in favor of defendant-appellee The Sportsman’s
Den, Inc., following a jury trial.
STATEMENT OF THE CASE AND FACTS
{¶2} Appellant Horace Cook sustained severe injuries after the muzzle-loading
rifle he purchased from Appellee exploded during use. On December 10, 2008,
Appellants filed a Complaint in the Richland County Court of Common Pleas, alleging
Appellee was negligent for contemporaneously selling Horace Cook smokeless
gunpowder with the muzzle-loading rifle. Appellants asserted Appellee was aware of
the fact Horace Cook intended to use the smokeless gunpowder with the muzzle-
loading rifle and should have prevented him from making such purchase.
{¶3} The matter came on for jury trial on October 14, 2010. The following
evidence was adduced at trial.
{¶4} Horace Cook was an experienced hunter, but had limited experience in
the use of muzzle-loading rifles. On December 23, 2006, Horace Cook purchased a
muzzle-loading rifle, bullets, sabots, plastic tabs, primers, a sling, and smokeless
gunpowder from Appellee’s Shelby, Ohio sporting goods store. Horace Cook could not
recall which employee assisted him nor could he provide a description of the
salesperson. The only identifying feature Horace Cook remembered about the
employee was that the individual was a male. According to Horace Cook, the employee
accompanied him through the store and picked out a number of accessories for the rifle. Richland County, Case No. 10CA131 3
The employee also accompanied Horace Cook to the area of the store in which
gunpowder is located. Horace Cook testified the employee either picked out the
smokeless gunpowder or observed him select the smokeless gunpowder. Thereafter,
Horace Cook took the merchandise to a cashier and made his purchase.
{¶5} Horace Cook reviewed the 16-page owner’s manual included with the rifle
in order to determine the proper load. He acknowledged he skipped the pages
dedicated to the safety warnings. One of the warnings clearly states never to use
smokeless gunpowder with the particular muzzle-loading rifle Horace Cook purchased.
Horace Cook additionally conceded he did not read the warning printed directly on the
rifle, which states to use only black powder or black powder replica in the rifle, or the
warning on the box of smokeless gunpowder, which states never substitute smokeless
gunpowder for black powder and never use smokeless gunpowder in muzzle-loading
firearms.
{¶6} During a hunting trip on December 27, 2006, Horace Cook used his new
muzzle-loading rifle for the first time. Horace Cook attempted to fire the rifle two or
three times, but the rifle would not fire. He replaced a cap and tried to fire the rifle once
again. When the rifle finally fired, it exploded, causing severe injuries to Horace Cook.
{¶7} Every male employee who could have been working for Appellee on
December 23, 2006, the day Horace Cook purchased the rifle and gunpowder, testified
at trial. Each employee testified regarding his employment history with Appellee, his
familiarity with muzzle-loading rifles, including the safe and proper usage of such a
firearm, and his familiarity with the rifle Horace Cook purchased. Each employee
responded in the negative when asked if he had waited on Horace Cook on December Richland County, Case No. 10CA131 4
23, 2006. Gregg Griffeth, the owner of Appellee, also testified regarding his familiarity
with muzzle-loading rifles, including the safe and proper usage of such a firearm. One
employee noted smokeless gunpowder and black powder are kept in different sections
of the store. Griffeth indicated he would not give a customer smokeless gunpowder for
use with a muzzle-loading rifle.
{¶8} After hearing all the evidence and deliberating, the jury returned a
unanimous verdict in favor of Appellee. The trial court entered judgment in favor of
Appellee via Judgment Entry on Verdict filed October 26, 2010.
{¶9} It is from this judgment entry Appellants appeal, raising as their sole
assignment of error:
{¶10} “I. THE JURY VERDICT UPON WHICH FINAL JUDGMENT WAS
ENTERED IN THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
{¶11} Herein Appellants argue the evidence at trial amply demonstrated Horace
Cook was a rookie with respect to muzzle-loading rifles, and Appellee owed him a duty
to ensure he purchased the appropriate gunpowder for the firearm.
{¶12} In a civil action, an appellate court may not find the judgment to be against
the manifest weight of the evidence if such judgment is supported by competent,
credible evidence. C.E. Morris, Co. v. Foley Construction Co. (1978), 54 Ohio St.2d
279; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. In determining whether a
jury's verdict is contrary to the manifest weight of the evidence, an appellate court does,
to a limited extent, weigh the evidence and consider the credibility of the witnesses in
order to insure against a miscarriage of justice, keeping in mind, however, that those Richland County, Case No. 10CA131 5
matters are primarily for the trier of the facts to decide in either a civil or criminal case.
See, State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.
{¶13} “The discretionary power to grant a new trial should be exercised only in
the exceptional case in which the evidence weighs heavily against the conviction.” State
v. Thompkins (1997), 78 Ohio St.3d 380, 387 (Citations omitted). Accordingly, before an
appellate court will reverse a judgment as against the manifest weight of the evidence in
a civil context, the court must determine whether the trier of fact, in resolving evidentiary
conflicts and making credibility determinations, clearly lost its way and created a
manifest miscarriage of justice. Gonzalez v. Henceroth Enterprises, Inc., (1999), 135
Ohio App.3d 646.
{¶14} As set forth supra, every one of Appellee’s male employees who could
have been working on December 23, 2006, as well as Appellee’s owner, testified he did
not wait on Horace Cook nor would he have allowed smokeless gunpowder to be sold
to a customer for use in a muzzle-loading rifle. This evidence alone constitutes
competent, credible evidence which supports the jury’s verdict. As the trier of fact, the
jury was free to accept or reject any or all of the testimony of the witnesses. The jury
clearly did not believe Horace Cook’s testimony he received assistance in selecting the
correct gunpowder for the rifle he intended to purchase. We cannot say the jury’s
verdict was against the manifest weight of the evidence.
{¶15} Appellants’ sole assignment of error is overruled. Richland County, Case No. 10CA131 6
{¶16} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Hoffman, PJ.
Farmer, J. and
Edwards, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER
s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS Richland County, Case No. 10CA131 7
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
HORACE D. COOK, JR., ET AL. : : Plaintiffs-Appellants : : -vs- : JUDGMENT ENTRY : THE SPORTSMAN'S DEN, INC. : : Defendant-Appellee : Case No. 10CA131
For the reasons stated in our accompanying Opinion, the judgment of the
Richland County Court of Common Pleas is affirmed. Costs assessed to Appellants.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS