Webb v. Olin Mathieson Chemical Corporation

Utah Supreme Court

Webb v. Olin Mathieson Chemical Corporation

342 P.2d 1094, 9 Utah 2d 275, 80 A.L.R. 2d 476, 1959 Utah LEXIS 234

CourtUtah Supreme Court

DecidedAugust 12, 1959

Docket8872

StatusPublished

Cited by32 cases

This text of 342 P.2d 1094 (Webb v. Olin Mathieson Chemical Corporation) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Webb v. Olin Mathieson Chemical Corporation, 342 P.2d 1094, 9 Utah 2d 275, 80 A.L.R. 2d 476, 1959 Utah LEXIS 234 (Utah 1959).

Pincite

Opinions

CROCKETT, Chief Justice.

An explosion of plaintiff’s rifle he was firing while rabbit hunting blew off part of his one finger and injured another. He sued defendant for negligence in manufacturing the gun. The case was tried and submitted to the jury on the issues of negligence of the defendant and contributory negligence of the plaintiff. The jury found the issues in favor of the plaintiff, and judgment for $3,785.40 was entered thereon from which defendant appeals.

Defendant’s fundamental attack is that there is no competent evidence of its negligence; and that the only reasonable deduction to be drawn from the evidence was that the mishap resulted from the plaintiff’s own negligence, so the defendant was entitled to a directed verdict.

The defendant, Olin Mathieson Chemical Corporation, manufactures firearms under the well-known brand of Winchester. In March, 1955, plaintiff purchased from Al’s Sporting Goods Store in Salt Lake City one of defendant’s products, a model 70 Winchester rifle, caliber .220 swift. Complications plague this case because the plaintiff was not contented to use this gun, which is known for its high power and muzzle velocity, in its original form. He was a gun tinkerer and had to remodel it. A week or two after he bought it he had a Salt Lake gunsmith replace the barrel with one which would take a .25 caliber cartridge. The following spring he had a Reno gunsmith resize the bore of the barrel so that it would take a .270 caliber cartridge; and also had a new stock put on the gun.

The fact of critical importance is that the central portion of the gun, which the experts call the “receiver” was not changed. Our concern is with this receiver, which receives, handles and ejects the shells, because it was the “backfiring” of a cartridge which broke the top portion out of the receiver and injured the plaintiff’s hand.

In the usual firing of a cartridge the receiver is not subjected to particularly heavy [279]*279pressure because this is borne by the cartridge casing and the chamber into which the cartridge fits in the base of the barrel. However, it is necessary that the receiver have adequate strength to guard against possible explosions backward because of the fact that occasionally a cartridge will rupture or “separate” at the base when it is fired, in which event the explosive force of the gas, produced by the exploding powder, comes backward into the receiver. If the receiver is of the proper strength and quality of steel it holds this force and the gas escapes through small holes in the receiver designed for that purpose.

The negligence charged against the defendant is that the receiver was not of proper quality, so that when a cartridge did rupture, the explosion came backward into the receiver and shattered it, resulting in the injury to the plaintiff. He seeks recovery under the now well-established doctrine which imposes liability upon the manufacturer for injuries resulting from defects in such a product when it is used in accordance with its intended purpose.¹ The plaintiff having prevailed is entitled to have the evidence and every reasonable inference fairly to be drawn therefrom viewed in the light most favorable to him.²

Through witnesses who had made tests of the metal of the receiver, plaintiff produced evidence that the steel was faulty in three particulars: that it had too high a sulfur content; that the manganese content was not uniform throughout; and that it was harder than it should have been. In regard to those facts, Robert O. Kron, a metallurgical engineer, testified: that a high sulfur content tends to weaken steel; that the lack of uniformity in the manganese content makes it heterogeneous or spotty in its quality, instead of being uniform or homogeneous, as it should be; and that such spottiness provides focal points for possible fracture when the steel is subjected to stress. The evidence also showed that under what is known as the Rockwell Test this steel had a hardness of between 47 and 51, whereas, the hardness most suitable for this particular purpose is from 40 to 43. Mr. Kron gave his opinion that steel with the higher hardness is more brittle and thus more likely to fracture under stress.

Fundamental to defendant’s attack upon plaintiff’s case is the charge that the latter’s witnesses were not properly qualified as experts and that their evidence was therefore not competent. Defendant urges that the testimony of its expert, Mr. Richard E. Morgan, admittedly well qualified by training and experience as a metallurgical engineer, should be controlling. He dis[280]*280agreed with the essential parts of plaintiff’s evidence and doubted the accuracy of the tests made and the testimony given by the plaintiff’s witnesses.

When the subject under consideration involves some aspect of science, art, trade, or learning about which the general knowledge of laymen is not sufficient to interpret and apply evidence accurately in the finding of facts and drawing conclusions, one who has acquired special knowledge of the subject through study or experience may be permitted to testify as an expert and give his opinions in regard to it.³ Inherent in the position of the trial judge in the immediate control of the trial is the responsibility of passing upon whether the subject justifies expert testimony and the qualifications of the witness as to whether he can give sound and reliable help to the jury on it.

In view of the importance of the function entrusted to the expert witness, it is of great importance that the court carefully scrutinize his qualifications to guard against being led astray by the pseudo learned or charlatan who may purvey erroneous or too positive opinions without sound foundation. The practical exigencies of the situation make it necessary that the trial court be allowed considerable latitude of discretion in making such determination. His rulings in that regard should not be disturbed lightly, nor at all unless it clearly appears that he was in error in his judgment on the matter.

Conceded that defendant is correct in its claim that its expert witnesses had more formal education and training than some of those relied upon by the plaintiff, that is not the only basis for judging the reliability of testimony. Particularly, it is not the concern of this court on review. So long as there is reasonable basis shown to justify the trial court’s permitting the witnesses to testify as experts, the testimony is allowed to come in as competent evidence. The qualifications of the witnesses then become one of the factors for the jury to consider in determining the weight to be given it. Without setting out the detail, it is sufficient to say that the showing made brought the question of the competency of plaintiff’s witnesses within the realm of the discretion indulged the trial court in such matters. That being so, the evidence as above discussed provides a sufficient basis upon which reasonable minds could find that the defendant was negligent in the manufacture of the gun and that the faults resulting therefrom proximately caused plaintiff’s injury.

The important aspect of the charge of contributory negligence is that plaintiff en[281]*281larged the size of the extractor slot. This is a notch cut in the side of the base of the barrel to facilitate the extraction of the cartridge and its ejection from the gun after it is fired. Figure 1 below shows the slot in defendant’s standard barrel: figure [282]

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