Singleton v. Olin Mathieson Chemical Corporation

131 So. 2d 329, 1961 La. App. LEXIS 1206
CourtLouisiana Court of Appeal
DecidedJune 19, 1961
Docket304
StatusPublished
Cited by10 cases

This text of 131 So. 2d 329 (Singleton v. Olin Mathieson Chemical Corporation) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Singleton v. Olin Mathieson Chemical Corporation, 131 So. 2d 329, 1961 La. App. LEXIS 1206 (La. Ct. App. 1961).

Opinion

131 So.2d 329 (1961)

Artis A. SINGLETON, Plaintiff-Appellant,
v.
OLIN MATHIESON CHEMICAL CORPORATION, Defendant-Appellee.

No. 304.

Court of Appeal of Louisiana, Third Circuit.

June 19, 1961.

Mitchel M. Evans and W. C. Pegues, III, DeRidder, for plaintiff-appellant.

Thomas F. Porter & John B. Scofield, by John B. Scofield, Lake Charles, for defendant-appellee.

Before FRUGE, HOOD and CULPEPPER, J.

FRUGE, Judge.

This is a suit in tort against defendant, Olin Mathieson Chemical Corporation, for injuries sustained by plaintiff when a shotgun shell, manufactured by defendant, *330 allegedly exploded in plaintiff's shot gun. From a judgment in favor of defendant and against the plaintiff rejecting his demands at his costs, plaintiff prosecutes his appeal.

Plaintiff owns a twelve gauge "Berkshire" double-barrel shot gun. During the fall of 1957 he purchased a box of 25 Winchester twelve gauge Ranger shot gun shells, serial no. A57M691P. While squirrel hunting on October 11, 1958, he loaded the "Berkshire" gun with the shells and shot at a squirrel, whereupon the right barrel burst causing certain injuries to the fingers of his left hand. For cause of action plaintiff alleged that the shells were defective; that one had "exploded" in the chambers; that defendant had breached its "warranty of materials and workmanship" by carelessly and defectively manufacturing the shells; and that the sole proximate cause of the injuries was defendant's negligence in its manufacturing process and/or selection of material and workmanship resulting in the defective shell. Res ipsa loquitur was plead alternatively. Defendant entered a general denial and affirmatively alleged that the injuries were caused by plaintiff's gross negligence in that:

"(a) Notwithstanding the plaintiff had full knowledge that the said Berkshire shotgun, Serial No. T32 21536, was old and dangerously worn, and that it was highly dangerous to fire a Winchester Ranger shell in said gun, he knowingly and intentionally did fire such shell in his said gun.
"(b) Having full knowledge that the said Berkshire shotgun, Serial No. T32 21536, was not originally made in such manner and with such materials as to be strong enough to have fired therein said Winchester Ranger Shells, and knowing that it would be highly dangerous for him so to do, he nevertheless fired said shell in said gun".

Alternatively, defendant averred that if the court found it negligent then plaintiff was contributorily negligent in the above quoted particulars.

On appeal plaintiff alleges error in the court below in failing to find the defendant negligent in its manufacturing process and/ or selection of materials and workmanship in producing a defective shell; in failing to find that defendant breached its warranty of materials and workmanship; in failing to find defendant negligent in that an insufficient warning was given as to the dangerous characteristics of the shells; and in failing to apply the doctrine of res ipsa loquitur.

Negligence and breach of Warranty

The trial judge reviewed the evidence extensively in his well-written reasons for judgment. We have carefully read the transcript of testimony, examined the evidence offered and have concluded that defendant was not negligent in its manufacturing process and/or selection of materials and workmanship. Furthermore, it does not appear that the shell was defective. The lower court found that:

"No one other than the plaintiff was present at the time and place of the accident and plaintiff alone testified as to what he did or saw about the gun immediately prior to the explosion. Plaintiff testified that he bought the Berkshire gun in question in 1952, and prior to that time he had purchased and used 12 guage Ranger shells in other guns owned by him. He continued using the same type shells after he purchased the Berkshire gun. In the Fall of 1957, he purchased a box of 12 guage Ranger shotgun shells manufactured by defendant from a retail dealer in DeRidder, Louisiana. He kept these shells on a shelf in his kitchen. While squirrel hunting on October 11, 1959, he loaded his gun with two of the shells, fired the right barrel resulting in a rupture of the barrel some fourteen inches from the breach and causing the injury to the fingers of his left hand. That shot was the only shot made by plaintiff on the date of the accident. The box containing the shells was offered in evidence by plaintiff and *331 marked "P-1". On one end of the box on the outside is printed the following words:

"`Warranty

"[`] We warrant the materials and workmanship in these shotgun shells to be of Winchester standard quality.'
"On the opposite end of the box on the outside is printed the following words:

"`Warning

"[`] These shells should be used only in guns in good condition. Do not use them in arms having Damascus or twist steel barrels or arms chambered for shells shorter than shell length printed on this carton.'
"The word `Warning' is in white capital letters imprinted over a red background and the words that follow are printed in blue over the red background in the same size type as the warranty. Both the warranty and the warning are easily readable.
"On cross examination plaintiff stated that he was 57 years of age; that he read his Bible daily; that he taught a Sunday School Bible Class; that he read his Sunday School Quarterly; that he read the newspapers, demonstrating in open Court his ability to read; that he had been hunting all of his life; and that he had never read the warning printed on the box of shells.
"The uncontradicted testimony of plaintiff's own witnesses, Crysel, and of defendant's experts, Hill, McLain and Houser, is that the gun in question is in fact an old, twist steel Damascus made gun, the manufacture of which type guns was discontinued about the turn of the century. This type gun was made by twisting small steel rods around a mandrel, then subjecting them to intense heat to weld the rods and hammering them while they were hot. The mandrel was then withdrawn and the work smoothed or polished. All the experts who testified agreed that the Damascus type gun is inferior to the construction used in the manufacture of modern guns and none of them would fire a Damascus gun, even if it were new, because to do so would be unsafe. All of defendant's expert witnesses testified, and a casual inspection will show, that the gun was old and rusty, the barrels were pitted, the stock was broken and held together in part by a steel band around the stock in front of the trigger guard placed there by plaintiff's witness, Crysel, and the general condition was poor. The gun was offered in evidence as Defendant's exhibit D-1 and it is apparent to the Court, who is not an expert, that the gun was, in fact, unsafe. The experts who testified could not determine the exact date of manufacture of the gun, but since the manufacturers discontinued making this type gun around the turn of the century, as they testified, the particular gun in question must have been made before the year 1900. The experts also testified that deterioration in Damascus made guns takes place merely by the passage of time since slag which is bonded in between the welds when the twists of metal are hammered together on the mandrel will absorb moisture, thereby speeding corrosion in the barrel. This corrosion weakens the welds and tends to pull them apart.

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Bluebook (online)
131 So. 2d 329, 1961 La. App. LEXIS 1206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/singleton-v-olin-mathieson-chemical-corporation-lactapp-1961.