Jimmy Abrams v. The Marlin Firearms Company ( 2001 )


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  •                        IN THE SUPREME COURT OF MISSISSIPPI
    
                                        NO. 2001-CA-01613-SCT
    
    JIMMY ABRAMS
    AND MARY ABRAMS
    
    v.
    
    THE MARLIN FIREARMS COMPANY
    AND GARY DEDEAUX d/b/a
    GARY'S PAWN & GUNSHOP
    
    
    DATE OF JUDGMENT:                              7/27/2001
    TRIAL JUDGE:                                   HON. JOHN M. MONTGOMERY
    COURT FROM WHICH APPEALED:                     CLAY COUNTY CIRCUIT COURT
    ATTORNEYS FOR APPELLANTS:                      CHARLES M. MERKEL
                                                   JACK R. DODSON
    ATTORNEY FOR APPELLEES:                        JAMES A. BECKER, JR.
    NATURE OF THE CASE:                            CIVIL - PERSONAL INJURY
    DISPOSITION:                                   AFFIRMED - 02/27/2003
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    
    
           BEFORE PITTMAN, C.J., WALLER AND CARLSON, JJ.
    
           WALLER, JUSTICE, FOR THE COURT:
    
    ¶1.    Jimmy Abrams and his wife, Mary Abrams, appeal from a Clay County Circuit Court judgment
    
    entered in accordance with a unanimous jury verdict in favor of defendants Marlin Firearms Company and
    
    Gary Dedeaux d/b/a Gary's Pawn and Gunshop. The Abrams claim that the trial court erred in admitting
    
    certain evidence and that the verdict was against the overwhelming weight of the evidence. We affirm.
    
    
    
                               FACTS AND PROCEDURAL HISTORY
    ¶2.     On October 21, 1994, Jimmy Abrams purchased a new Marlin model 336 lever action 30-30
    
    caliber hunting rifle from Gary's Pawn and Gunshop in West Point, Mississippi. On December 30, 1994,
    
    Abrams sustained a self-inflicted gunshot wound to his right leg while inside his extended cab Toyota pick-
    
    up. The bullet entered Abrams' knee and traveled through his calf.
    
    ¶3.     Robin Minyard, a passer-by, found Abrams lying in the middle of Waverly-Ferry Road in Lowndes
    
    County. At 7:50 p.m., approximately two hours after Abrams said he shot himself, a call for assistance was
    
    placed to 911. In the meantime, Dallas Slatton, a part-time volunteer paramedic who happened to be in
    
    the area, attended to Abrams and noted he was quite coherent given his condition. He testified as to the
    
    presence of alcohol on Abrams' breath and tire tracks leading from nearby property to Abrams' pick-up.
    
    Upon questioning by Slatton, Abrams confirmed that he had been spotlighting deer.1 Inside the pick-up,
    
    Slatton noticed beer bottles both empty and full, a fresh pool of blood in the floorboard, rifles on the
    
    passenger side, and a Q-Beam handheld spotlight plugged into the dash. Paramedics transported Abrams
    
    to Baptist Hospital in Columbus where, despite all efforts, his leg became necrotic and gangrenous and had
    
    to be amputated above the knee eleven days later.
    
    
    
    
            1
             Slatton testified that the reason he questioned Abrams was to keep him alert and talking to keep
    him alive.
    
                                                        2
                                           Abrams' Theory of the Case
    
    ¶4.     According to Abrams, on December 30, 1994, he traveled to his mother's house to target practice2
    
    and sight the scope for the new Marlin. When he finished shooting the Marlin, he cycled a live round into
    
    the chamber and uncocked the hammer.3 At approximately 5:30 p.m. he attempted to place the Marlin
    
    across the backseat of his pick-up when, as he sat on the driver's seat and swung the Marlin between the
    
    front seats, the rifle struck the chromed headrest post on the passenger seat hitting the closed hammer and
    
    causing the rifle to fire. He alleged the bump firing was due to the defective design of the Model 336 rifle.
    
    ¶5.     Abrams testified that he tied a piece of wire around his leg to slow the bleeding. He started his
    
    manual transmission truck by pressing a clutch release button and drove to his mother's house nearby. He
    
    testified that he did not stop at his mother's house for help since no one was home but instead attempted
    
    to drive himself to the hospital.
    
                                           Marlin's Theory of the Case
    
    ¶6.     Marlin's theory of the case was that the rifle was not defective and that Abrams' own negligence,
    
    inattention, and misuse of the rifle were the causes of his injuries. It contended the cause of the accident
    
    was a full-cocked discharge4 of the rifle.
    
    ¶7.     Marlin further asserted that Abrams could not have possibly shot himself at the time and place he
    
    said he did and expect to survive over two hours in that condition. Abrams testified that he shot himself
    
    at approximately 5:30 p.m. near his mother's house in New Hope in Lowndes County. This is
    
    
            2
            In addition to the Marlin, Abrams also had with him a Winchester rifle, a .22 caliber Browning
    semi-automatic rifle, and an SKS military-type rifle.
            3
            The Model 336 rifle is equipped with a cross-bolt safety mechanism; however, Abrams never
    engaged it or knew the rifle was equipped with it.
            4
             A full-cocked discharge is a normal firing by pulling the trigger.
    
                                                         3
    approximately fifteen miles and a twenty-minute drive to the spot where he was found and which is on the
    
    other side of the hospital from his mother's house. Rather, Marlin submitted that Abrams shot himself in
    
    the woods near Waverly-Ferry Road less than half an hour before he was found.
    
                                           Course of Proceedings Below
    
    ¶8.     Abrams filed this products liability action against Marlin and Gary's Pawn and Gunshop alleging
    
    the Marlin 30-30 was defective, unreasonably dangerous, and discharged without a trigger pull. The trial
    
    court granted Abrams' motion in limine to exclude evidence of prior misdemeanor convictions for
    
    spotlighting deer, driving under the influence, and assault and battery; evidence of Abrams' possible
    
    consumption of alcohol prior to the accident; and evidence that Abrams was hunting deer illegally at the
    
    time. After reconsideration prior to trial, the trial court allowed Marlin to inquire into the possible alcohol
    
    consumption and illegal hunting.
    
    ¶9.     At trial, Abrams presented expert testimony that the Marlin rifle was defective because it lacked
    
    a passive safety device to prevent the rifle from accidentally discharging when the hammer is uncocked and
    
    placed against a live round. However, neither expert could rule out the possibility of a full-cocked
    
    discharge. Determining exactly how the rifle fired was hindered greatly by the loss of the spent shell casing,
    
    since a bump-fire would leave a different firing pin indentation than would a normal firing.5
    
    ¶10.    Evidence of proper gun handling techniques as it related to Abrams' handling of the rifle was also
    
    presented. Lorne Smith, Jr., a former hunter education instructor, testified as follows about Abrams'
    
    violation of various "commandments" of firearms safety:
    
    
    
            5
             Following the injury, game warden Ben Kilgore confiscated all of the rifles in Abrams' truck and
    the rounds in them. The rifles and live rounds were subsequently returned to Abrams; however, the spent
    hull and projectile from the Marlin were turned over to Lowndes County Sheriff's deputies working the
    case, and no one can account for their whereabouts.
    
                                                          4
                    The first would be–the first commandment says to treat every firearm with
                    the same respect due a loaded gun. So any firearm that you're handling
                    you treat it as if it is loaded so if an accident happens then you've got it
                    pointed in a direction where no one gets hurt. The second commandment
                    says to control the direction of the firearm's muzzle. If he would have
                    controlled the direction of the muzzle even if it had gone off, then he would
                    not have shot himself. The third commandment that he violated was
                    unload firearms when not in use. Leave the actions open. Firearms
                    should be carried empty in cases to and from shooting areas so they
                    should be unloaded and carried in cases from one area to the other or
                    from the shooting range back to the house or wherever. The fourth one
                    says never point a firearm at anything you don't intend to shoot. If you
                    don't intend to shoot something, then you don't point the gun at it. The
                    fifth one says store firearms and ammunition separately beyond the reach
                    of children and careless adults. And the sixth one says to avoid alcoholic
                    beverages and other mood-altering drugs while or during shooting.
    
    ¶11.    After hearing evidence on theories of negligence and strict products liability, a jury returned a
    
    unanimous verdict in favor of Marlin and Gary's. Abrams' motion for a new trial was denied, and he
    
    appeals asserting as error that the verdict was against the overwhelming weight of the evidence and the
    
    admission of the evidence of alcohol consumption and illegal hunting.
    
                                                 DISCUSSION
    
                    I.      WHETHER THE TRIAL COURT ERRED IN
                            ADMITTING EVIDENCE OF ALCOHOL
                            CONSUMPTION AND ILLEGAL DEER HUNTING.
    
                                               Standard of Review
    
    ¶12.    Determining the relevancy and admissibility of evidence is within the discretion of the trial judge,
    
    and we will reverse only in the event that discretion has been abused. Rials v. Duckworth, 
    822 So. 2d 283
    , 287 (Miss. 2002); Brandon HMA, Inc. v. Bradshaw, 
    809 So. 2d 611
    , 618 (Miss. 2001); Buel
    
    v. Sims, 
    798 So. 2d 425
    , 429 (Miss. 2001); Herring v. Poirrier, 
    797 So. 2d 797
    , 804 (Miss. 2000).
    
                                 A. Evidence of Possible Alcohol Consumption
    
    
                                                         5
    ¶13.    Abrams contends that the trial court erred in admitting evidence of his possible alcohol
    
    consumption. Dallas Slatton testified that he smelled alcohol on Abrams' breath as he attended to Abrams
    
    and noted the presence of beer in the truck. Ben Kilgore, a game warden with the Department of Wildlife,
    
    Fisheries and Parks, also testified as to the presence of alcohol in Abrams' pick-up. His report of the
    
    incident stated as much in pertinent part:
    
                    In the vehicle there was a very large pool of blood in the floor board of the
                    driver's side. On the seat was a Q Beam which was plugged into the
                    lighter outlet. There were two rifles on the seat. One was a bolt action
                    30-30 with a scope. The other was a twenty two rifle. There was a sack
                    on the seat of the passenger side. It contained two unopened Natural Lite
                    beers [and] one empty Natural Lite beer bottle. These were in the
                    Natural Lite six pack carton. The two unopened beer bottles were very
                    cold when I felt of them. There was also a Natural Lite beer bottle in the
                    drink holder on the dash. It was about 1/4 full.
    
    David Minyard, whose wife initially found Abrams lying in the street and called him for assistance, testified
    
    to the same effect.
    
    ¶14.    Specifically, Abrams claims reversible error and asserts there was no evidence that alcohol had
    
    anything to do with the accident and the proof never established that he was actually intoxicated. Marlin
    
    responds that the evidence was relevant to show negligence, credibility and causation.
    
    ¶15.    Abrams relies heavily on our decision in Donald v. Triple S Well Service, Inc., 
    708 So. 2d 1318
     (Miss. 1998). In Donald, a case in which the plaintiff slipped and fell while working on a gas well,
    
    the defense elicited testimony that Donald's breath smelled of alcohol on prior occasions while on the job.
    
    708 So. 2d at 1322. However, Triple S did not produce a witness that actually observed Donald drinking.
    
    Id. at 1324. We held that the evidence never established that Donald had a habit of drinking on the job.
    
    Id. at 1323. We also noted that while possibly admissible under Miss. R. Evid. 406, it was unfairly
    
    prejudicial under Miss. R. Evid. 403. Id. at 1324. Regarding admissibility of such evidence, we held,
    
                                                         6
    "Testimony of alleged alcohol consumption should not be allowed before the jury without a minimal showing
    
    of admissibility or causal connection between the alleged consumption of alcohol and the
    
    accidents involving Donald." Id. (emphasis added).
    
    ¶16.    Donald dealt with the admissibility of evidence of alcohol consumption to establish a habit of
    
    drinking. The Court of Appeals' decision in Hageney v. Jackson Furniture of Danville, Inc., 
    746 So. 2d 912
     (Miss. Ct. App. 1999), is more on point in that it deals with evidence of drinking just prior to
    
    the event in question in the context of a products liability action. The Hageneys brought a products liability
    
    action for injuries Tim Hageney sustained when a bar stool collapsed under his weight. 746 So. 2d at 915.
    
    The trial court admitted evidence over a motion in limine that the Hageneys were drinking at the time of the
    
    accident. Id. at 920. Specifically, "the trial court found that the Hageneys's state of sobriety was relevant
    
    in the jury's assessment of their credibility in relating the events surrounding the incident, and Tim's
    
    consumption of alcohol was relevant to the issue of whether Tim was contributorily negligent." Id. (citing
    
    Miss. Power & Light Co. v. Lumpkin, 
    725 So. 2d 721
     (Miss. 1998)). The Court of Appeals
    
    concluded the trial court did not abuse its discretion when allowing the evidence. Id.
    
    ¶17.    Though not cited by either party in their briefs, our decisions in Accu-Fab & Const., Inc. v.
    
    Ladner, 
    778 So. 2d 766
     (Miss. 2001), and Pope v. McGee, 
    403 So. 2d 1269
     (Miss. 1981), warrant
    
    discussion and distinction. In Accu-Fab, a case where the decedent fell through a hole in a roof at a
    
    construction site, evidence of a marijuana cigarette found in Ladner's pocket and evidence of marijuana use
    
    were found to be irrelevant because there was no showing that the marijuana impaired Ladner. 
    778 So. 2d
     at 772. In Pope, a case involving an automobile accident, we held that evidence of two six-packs of
    
    warm beer and some unidentified white powder were inadmissible because there was no proof of the
    
    
    
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    driver's being intoxicated or impaired. 403 So. 2d at 1271. In this case, however, there is proof of alcohol
    
    use–namely, Slatton's testimony of smelling alcohol on Abrams' breath while administering aid to him.
    
    ¶18.    In the instant case, there was evidence of cold beer in Abrams' pick-up and the smell of alcohol
    
    on his breath. In our opinion, evidence of possible alcohol consumption just prior to the accident was highly
    
    relevant and probative as to Abrams' credibility, his recollection of the accident since there were no other
    
    witnesses, and his contributory negligence.
    
                                   B. Evidence of Possible Illegal Deer Hunting
    
    ¶19.    Abrams also argues that evidence of possible illegal spotlighting of deer was completely irrelevant
    
    because the accident occurred inside the pick-up. Marlin counters arguing that the evidence was not
    
    probative that Abrams was participating in illegal activity but that the evidence was probative on the issue
    
    of his negligence. Marlin's position is that "the jury may have reasonably concluded that Abrams'[s]
    
    spotlighting activity explained why he had a loaded rifle with the safety off in the confined space of his pick-
    
    up truck."
    
    ¶20.    Abrams' only support of his argument is Shields v. Carnahan, 
    744 P.2d 1115
     (Wyo. 1987).
    
    Shields was a medical malpractice case in which the doctor elicited evidence that the plaintiff "was on a
    
    late night trip with a man other than her husband." Id. at 1116. The Supreme Court of Wyoming reversed
    
    and remanded, holding that "[u]nder the circumstances, whether appellant was on a late night trip with a
    
    man other than her husband, or whether that man had been drinking before he drove the accident vehicle
    
    had nothing to do with the malpractice issues involved in this case." Id. at 1116-17.
    
    ¶21.    We disagree with Abrams' reliance on Shields. Shields dealt with pre-accident conduct
    
    completely irrelevant to the underlying issue of medical malpractice–an issue totally unrelated and
    
    unconnected to the pre-accident conduct. In the instant case, however, the evidence supports Marlin's
    
                                                           8
    theory and established a causal connection that Abrams may have been spotlighting at the time and that the
    
    accident was a result of a full-cocked discharge, for he was in the cab of a compact pick-up pointing a
    
    loaded deer rifle at himself with its safety disengaged in violation of countless gun-handling principles.
    
    Slatton testified that he saw mud on Abrams' pick-up and a Q-Beam spotlight plugged into the dash and
    
    tracks leading to the pick-up from the property near the spot where he was found. Slatton also testified
    
    that, as he was administering first-aid to Abrams and talking to him to keep him alive, Abrams admitted he
    
    was out spotlighting. Such evidence is very relevant under Miss. R. Evid. 401, and its probative value is
    
    not outweighed by unfair prejudice. Miss. R. Evid. 403.
    
    ¶22.    It is inherent that nearly all evidence is prejudicial to a party in one way or another. The inquiry as
    
    it regards admissibility is whether that prejudice is unfair. Miss. R. Evid. 403. "Unfair prejudice," according
    
    the Advisory Committee Note to Fed. R. Evid. 403, "means an undue tendency to suggest decision on an
    
    improper basis, commonly, though not necessarily, an emotional one." The possibility of illegal spotlighting
    
    was supported by the evidence and was meant to explain Marlin's theory of the accident, Abrams'
    
    credibility as a witness, and his recollection of how the accident occurred, not to evoke rancor against
    
    Abrams within the jury. The activity of spotlighting was contemporaneous to the accident, and it surely
    
    cannot be said that the only manner in which the accident occurred was the manner to which Abrams
    
    testified, which was a hammer-down bump fire while entering his pick-up after target shooting. Given the
    
    testimony of tire tracks leading from the nearby property and the fact that Abrams was found approximately
    
    fifteen miles from his mother's house when the hospital was not even remotely close to where he was found,
    
    we hold that admission of this evidence was not an abuse of the trial court's discretion.
    
                     II.     WHETHER THE JURY'S VERDICT IS AGAINST THE
                             OVERWHELMING WEIGHT OF THE EVIDENCE.
    
    
    
                                                          9
    ¶23.    Abrams argues that the jury's verdict is against the overwhelming weight of the evidence on two
    
    bases. First, there is no credible evidence that the accident occurred in any manner different than how he
    
    described it. Second, all witnesses agreed that the Marlin 30-30 would fire if the hammer was struck and
    
    that this problem could have been eliminated by a passive safety device.
    
    ¶24.    It is the province of the jury to determine weight and worth of testimony and the credibility of
    
    witnesses at trial. Upchurch ex rel. Upchurch v. Rotenberry, 
    761 So. 2d 199
    , 205 (Miss. 2000);
    
    Wilmoth v. Peaster Tractor Co. of Lexington, Inc., 
    544 So. 2d 1384
    , 1386 (Miss. 1989);
    
    Burnham v. Tabb, 
    508 So. 2d 1072
    , 1077 (Miss. 1987); Travelers Indem. Co. v. Rawson, 
    222 So. 2d 131
    , 134 (Miss. 1969). We will, however, reverse if the verdict is against the overwhelming weight
    
    of the evidence and credible testimony presented. Ducker v. Moore, 
    680 So. 2d 808
    , 811 (Miss.
    
    1996); Parker v. Thornton, 
    596 So. 2d 854
    , 858 (Miss. 1992); Roberts v. State Farm Mut. Auto.
    
    Ins. Co., 
    567 So. 2d 1193
    , 1196 (Miss. 1990).
    
    ¶25.    Contrary to Abrams' contentions, there is credible evidence supporting the jury's unanimous verdict.
    
    Abrams cites little persuasive authority in support of his argument. The evidence supports a reasonable
    
    inference that Abrams was in fact not at his mother's house when he shot himself and that the accident
    
    occurred contrary to his recollection of events. Furthermore, the timing of the accident according to
    
    Abrams in relation to when help arrived (approximately two hours), the location where he was found in
    
    relation to the location of his mother's house and the hospital, the fact that Dallas Slatton smelled alcohol
    
    on Abrams' breath, and the fact that Ben Kilgore noted the beer in Abrams' truck was very cold all allowed
    
    the jury to infer and conclude that the accident occurred other than as Abrams recalled and/or was a result
    
    of his contributory negligence. The evidence simply does not reasonably preclude a conclusion of a full-
    
    cocked discharge as Marlin asserts. See Shields v. Sturm, Ruger & Co., 
    864 F.2d 379
     (5th Cir.
    
                                                        10
    1989) (applying Mississippi law) (affirming jury verdict in favor of defendant gun manufacturer in products
    
    liabilityaction where plaintiff alleged a .357 Magnum revolver was defective when bump-fired inside vehicle
    
    into plaintiff's leg and defendant alleging plaintiff's negligence caused accident).
    
                                                 CONCLUSION
    
    ¶26.    While we certainly sympathize with Abrams for the great loss he sustained, the fact remains that
    
    he was unable to convince a jury that the accident occurred as he described due to a defective Marlin rifle.
    
    The evidence about which he complains is relevant and probative, and we cannot say that the trial court
    
    abused its discretion in admitting it. We affirm the judgment entered in accordance with the unanimous jury
    
    verdict in favor of the defendants Marlin Firearms Company and Gary Dedeaux d/b/a Gary's Pawn and
    
    Gunshop.
    
    ¶27.    AFFIRMED.
    
         PITTMAN, C.J., SMITH, P.J., COBB, EASLEY, CARLSON AND GRAVES, JJ.,
    CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
    BY DIAZ, J.
    
    
    
    
            McRAE, PRESIDING JUSTICE, DISSENTING:
    
    ¶28.    The admission of evidence of possible illegal deer hunting had no probity whatsoever and was
    
    unfairly prejudicial. This case should therefore be reversed and remanded for a new trial. Whether
    
    Abrams was illegally hunting deer, or even legally hunting deer, is of no probative value as to whether a
    
    loaded gun, regardless of why, where, or when it was loaded, had a manufacturing defect or whether
    
    Abrams was negligent.
    
    
    
    
                                                          11
    ¶29.    In this case, the only relevant fact concerning Abrams and the issue of defect or negligence, is how
    
    the gun was loaded and fired. Deer hunting has nothing to do with how a gun is loaded or fired. Moreover,
    
    even if a strained case of relevance can be made, as was done here, the prejudicial effect of illegal hunting
    
    far outweighs such an attenuation. Admission of evidence of illegal activity, when not relevant or even
    
    remotely relevant, serves only one purpose: it prejudices and sways the jury by destroying a party’s
    
    character and integrity.
    
    ¶30.    The majority, however, justifies the admission of possible illegal deer hunting on the notion that “it
    
    is inherent that nearly all evidence is prejudicial to a party one way or another;” and it further elaborates
    
    that evidence of illegal hunting was “not to evoke rancor against the plaintiff with the jury.” This catch-all,
    
    “oh-it’s-no-big-deal” type of justification is far too slender a reed upon which to hang admission of
    
    irrelevant and prejudicial evidence in a product defect case. Abrams was prejudiced when this information
    
    was put before the jury. I would reverse and remand for a new trial. Accordingly, I dissent.
    
            DIAZ, J., JOINS THIS OPINION.
    
    
    
    
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