Carl S. Scronce, Et Ux. v. Howard Brothers Discount Stores, Inc.

GEE, Circuit Judge:

Appellant Scronce was injured when the 30-06 Steyr Mannlicher rifle he was sighting in at a shooting range exploded, injuring his face and right hand. Mr. Scronce had purchased the rifle some years earlier from an individual, Owen Wood, who had bought the gun from Howard Bros. Discount Stores, Inc., in Monroe, Louisiana. The rifle was manufactured by Steyr-Daimler-Puch, A.G. (Steyr), imported by Stoeger Arms Corporation (Stoeger), and sold by Stoeger to Howard Bros. At the time of the accident, the rifle had been fired less than 50 times.

Scronce testified that the rifle exploded as he fired the third of three shots on the day of the accident. It is undisputed that it was possible to fire the rifle, without the bolt head in place, that it would invariably explode when so fired, that this type of malfunction could not have happened with the usual “one-piece” bolt design, and that no warnings accompanied the sale of the rifle. However, Scronce testified further that when he arrived at the shooting range the bolt was inserted in the chamber of the rifle, that he never removed it from the rifle or the bolt head from the bolt while on the range, that the explosion occurred on the third shot, and that he did not remove the bolt or bolt head from the rifle between shots. Experts presented by both defendants and plaintiff testified that it was impossible for the accident to have happened in the way that Scronce testified because the bolt head could not disengage from the bolt unless removed from the rifle. According to the testimony of Mrs. Scronce, after the accident she discovered the bolt head in a lower front pocket of the overshirt Scronce was wearing on the range. The trial court directed a verdict for all defendants at the close of all the evidence.

The standard for granting a directed verdict was established in the case of Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969):

On motions for directed verdict ... the court should consider all the evidence— not just the evidence which supports the nonmover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict, granting of the motion is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach differing conclusions, the motion should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict ... should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict.

Defective Product

Scronce brought this diversity case on theories of strict liability and negligence. Under governing Texas law, in order to establish a cause of action based on strict liability, Scronce must prove four basic elements: (1) the product is defective; (2) the product reached the consumer without substantial change from the time it left the possession and control of the manufacturer; (3) the defective condition of the product rendered it unreasonably dangerous; and *1206(4) the unreasonably dangerous condition of the product caused injury to the user. Restatement (Second) of Torts § 402(a) (1965); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967).

All parties concede the presence of element (2), that the rifle was without substantial change at the time of the accident. It may be that there is room for doubt about elements (1) and (3), the presence of a defect and resulting unreasonable danger. On this record, however, there is no room for serious doubt that proof of element (4), causation, is wanting. The sole direct evidence of how the accident actually came about, that of Mr. Scronce himself, was that he arrived at the range with the bolt in the rifle, that he fired it twice without difficulty, and that as he fired a third time, it exploded. Undisputed in the record is that if this rifle be fired without the bolt head, it will invariably explode. Thus, necessarily, the bolt head was in during the first two firings. Mr. Scronce testified that he did not, or at any rate did not recall, removing the bolt at any time after he came to the range and before his injury. Thus we are left, if Scronce’s testimony be credited, with the practical certainty that between the second and third shots the bolt head was removed and the bolt replaced without it, leaving the rifle sure to malfunction on the third shot, as it did.

No version of the accident that accepts the account of Mr. Scronce explains it. Many that do not might do so: that the bolt head had been removed and the bolt inserted without it before Mr. Scronce came to the range, the rifle exploding on the first shot; that the barrel of the gun was obstructed, causing the explosion; that the explosion was caused by a defective round; that Scronce removed the head after the second shot and inadvertently reinserted the bolt with it absent. These are, one and all, no more than speculation, without support in the evidence. All that is certain is that the accident cannot have come about as Mr. Scronce said it did: on the testimony of all experts, including his witness, the bolt head could not have disengaged while the bolt assembly was mounted in the gun, as he said it was at all times.1 Even if the bolt design was a design defect, it is well settled that a plaintiff must prove that the defect produced his injuries. Technical Chemical Co. v. Jacobs, 480 S.W.2d 602, 604 (Tex.1972). Failure on a plaintiffs part to produce credible evidence of causation makes a directed verdict in favor of defendant proper. Shumate & Co. v. National Ass’n of Securities Dealers, Inc., 509 F.2d 147, 153 (5th Cir. 1975). Here Scronce failed to prove that a defect in the bolt design was responsible for the explosion. The evidence showed that the accident could not have happened in the way in which Scronce testified it did; our inquiry necessarily ends there.

Negligence — Warnings

Scronce argues that the lack of warning as to the consequences of firing without the bolt head raised a fact issue to be decided by the jury. Appellees assert that a warning that the rifle would explode if fired without the bolt head in place would have made no difference in this case, since Scronce testified that he never inserted the bolt into the rifle without the bolt head attached to it. Further, Scronce testified that he had knowledge of bolt-action rifles and that he had literature about the rifle in question at home. He further testified that he had been using firearms for some 30 years, had disassembled, reassembled, repaired, and even customized firearms before. Again, Scronce failed to prove causation, an essential element in his cause of action based on inadequate warning.

There is no indication in the briefs that the doctrine of res ipsa loquitur was invoked in this case. At all events, the mech*1207anism was in Mr. Scronce’s control at all relevant times. See, Marathon Oil Co. v. Sterner, 632 S.W.2d 571 (Tex.1982). It appears that the lack of adequate warning was the only ground that Scronce said constituted negligence. Though the explosion itself is circumstantial evidence of either a defect or negligence on the part of someone, Scronce failed to provide any other credible evidence of such and failed to prove all necessary elements of the causes of action pled.

AFFIRMED.

. In so observing, we hasten to add that we do not in any sense imply that Mr. Scronce’s testimony is disingenuous. The phenomenon of diminished recall of events immediately preceding a sudden physical shock is matter of common knowledge. We simply cannot, however, assume events favorable to his cause against his testimony, any more than we can speculate about such scenarios as we note in text above against it.