Rael v. F & S Company, Inc.

612 P.2d 1318 (1979)

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Nature of the Case

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Facts

Twelve-year-old Everett was injured by a sudden explosion of a firework. P filed this action against the fireworks supplier, Onda Enterprises, Ltd. (Onda), and the seller, D. The firework which caused the injury was purchased from D but had been manufactured by Gou Chien Fireworks Mfg. Co., Ltd., a Taiwan entity on which service was never effectuated, sold by Gou Chien to Onda, a Japanese corporation, and then sold to D, a New Mexico corporation. In 1973, D did some testing of the fireworks received and found some of them to be defective. It then registered a complaint with Onda, which agreed to give D full credit, including freight and duties, for the defective batches and asked that the remainder of the batches be destroyed at Onda's expense. D agreed and was given full credit for the batches about which it had complained. However, in July 1974, after taking some steps to remove the defective items from distribution, D sold the firework which injured Everett. Each D filed a claim seeking indemnity which the trial court dismissed. P got the verdict for $339 and $7,000 for Everett. D appealed seeking indemnity from Onda, and that the court erred in granting an instruction permitting the award of damages for future pain and suffering.