Gladiola Biscuit Company v. Southern Ice Company, 17513.

• Decision Date: 27 May 1959
• Docket Number: No. 17513.,17513.
• Parties: GLADIOLA BISCUIT COMPANY, Appellant, v. SOUTHERN ICE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

267 F.2d 138 (1959)

GLADIOLA BISCUIT COMPANY, Appellant, v. SOUTHERN ICE COMPANY, Appellee.

No. 17513.

United States Court of Appeals Fifth Circuit.

May 27, 1959.

C. H. Gillespie, Jr., Sherman, Tex., Gillespie, Gillespie & Robinson, Sherman, Tex., for appellant.

J. Edwin Fleming, Patrick B. Gibbons, III, Coke & Coke, Dallas, Tex., for appellee.

Before HUTCHESON, Chief Judge, and BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The decisive question here is whether the liability without fault imposed by Texas on a manufacturer of food stuff for injuries sustained by one who consumes it applies to damages sustained by a middleman-processor who uses the manufactured deleterious product as an ingredient in an entirely different article intended and sold for human consumption.

Treating it entirely as a matter of law and expressly holding that the facts were sufficient to sustain the jury's verdict for the plaintiff-middleman if those implied findings would, in turn, support a judgment, the District Court granted the manufacturer's motion for j. n. o. v. Glass in a frozen biscuit being packaged would, the Court recognized, give rise to liability under Jacob E. Decker & Sons, Inc. v. Capps, 1942, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479, to one who ate the biscuits. But the Court held it would not impose liability to a processor of frozen dough whose like duty to biscuit-eater customers required that it not put glassy dough in the channels of commerce. Gladiola Biscuit Co. v. Southern Ice Co., D.C.E.D. Tex.1958, 163 F.Supp. 570. A subsidiary question is whether ice may be a food for human consumption. We discuss also the adequacy of the proof to show that the ice manufacturer had reason to believe its ice was going into a product for human consumption, and that it was prudent for the processor-middleman to recall and destroy two, rather than one, days' production.

On the underlying question, the facts are simple. Southern Ice Company manufactured ice. It sold snow ice to Cross-land Ice Service who in turn sold it to Gladiola Biscuit Company who used the snow ice in reducing the temperature of the dough in the manufacturing of frozen (uncooked) biscuits. Thus, there was no privity of contract between the ice company and the biscuit company.

On the basic issue we consider the District Court was wrong. Apparently it thought that the recent and somewhat ambiguous decision of Bowman Biscuit Co. of Texas v. Hines, 1952, 151 Tex. 370, 251 S.W.2d 153, as it underwent its various tergiversations, indicated a retreat by Texas from the position which some thought advanced, but which Chief Justice Alexander, for the Supreme Court of Texas, thought merely reflected the liabilities which the law had long imposed since 1266 A.D. We see nothing in Bowman to detract from Decker. Nor does it, standing alone, or in conjunction with decisions of the Courts of Civil Appeals, reveal a purpose to retract or constrict the philosophy which Decker set forth.

In a day when many are apprehensive of any express acknowledgement of the role of the judiciary as a maker of public policy, we are on sound ground in looking upon it in those terms in this field. For not less than 12 times in Decker and 14 times in Bowman the Supreme Court of Texas discussed it in those very words.

Since Texas puts the rule of liability without fault on the basis of public policy, it is ripe to ask: what is that policy? It is not, as the manufacturer here contends, merely to allow an injured party to sue one not in privity. The right to sue is but a sanction to give effective expression to the policy. It is a redress which the law affords to compensate as best the law might. But what the law allows as legal compensation is by no means thought of as complete or adequate compensation in every situation. Indeed, the law recognizes that there may be consequences for which the legal remedy is the best that can be safely fashioned, although still inadequate. For example, for serious and permanent damage to one's digestive system from deleterious products, the law might affirm the allowance of large damages. But the judgment and its payment would not eradicate the pain or suffering or the disability flowing from it. Nor would, for example, a large recovery take the place of the life lost by such an occurrence. The public policy behind this doctrine is then the protection of Texas citizens from the injurious consequences of deleterious foods and beverages.

The expression of this concern was made in the contemporary setting which had to take into account the fact that unless the heavy duty were placed on the producer, protection of the public health and physical well-being would suffer. Technical rules of sales concerning the fitness of the thing asked for by name or brands, or the implied representation of fitness by a seller would hardly do the job. Today we live in a world of pre-canned, pre-packaged goods. Responsibility, and hence liability, in the Texas view ought therefore to be on the one who has the real control.

In this light, to effectuate that policy, it is essential to impose on all those supplying ingredients which go into the actual finished product a like burden. Otherwise, while an injured biscuit eater might have his remedy against the manufacturer, or for that matter perhaps against the supplier of the deleterious ingredient as well, the physical harm which Texas seeks to prevent would have irretrievably occurred. Nor would the manufacturer's conceded right to implead the supplier of the deleterious ingredient eradicate the harm. The ingredient must be wholesome and fit for human use as it finds its way into the finished product or the supplier of that ingredient, like the one producing the end product, must bear the consequences. As in the case of the finished product, this burden, while heavy, is deemed reasonable and bearable. The purpose of the rule is to exact not reasonable care but...