338 F.2d 911 (5th Cir. 1964), 20282, Putman v. Erie City Mfg. Co.

Docket Nº:20282.
Citation:338 F.2d 911
Party Name:Robert D. PUTMAN, Appellant, v. ERIE CITY MANUFACTURING COMPANY et al., Appellees.
Case Date:November 30, 1964
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 911

338 F.2d 911 (5th Cir. 1964)

Robert D. PUTMAN, Appellant,

v.

ERIE CITY MANUFACTURING COMPANY et al., Appellees.

No. 20282.

United States Court of Appeals, Fifth Circuit.

November 30, 1964

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Joyce Hill, A. W. Salyars, Lubbock, Tex., for appellant.

J. Orville Smith and Crenshaw, Dupree & Milam, Lubbock, Tex., for appellees.

Before BROWN, WISDOM and BELL, Circuit Judges.

WISDOM, Circuit Judge:

Once again Erie 1 thrusts the Court into the field of products liability. 2 Once again state guidelines are hard to find and follow. Jacob E. Decker & Sons, Inc. v. Capps, 1942, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479, a case of national importance, firmly settled the law of Texas that in a food case privity of contract is not a prerequisite to recovery for breach of a manufacturer's warranty of fitness for human consumption; the warranty is implied by law as a matter of public policy. But the Supreme Court of Texas has not committed itself to a position on the necessity for privity as a prerequisite to recovery in non-food cases. In the case before the court the defective product is a wheel chair. Making an Erie educated guess, we hold: Today, the Supreme Court of Texas would follow Decker to its logical conclusion and rule that a manufacturer or assembler of a defective product, unreasonably dangerous to the user, is subject to strict liability to the user for an injury caused by the defect, even though the product is not a food for human consumption, there is no proof of negligence, and there is no privity between the user and the manufacturer or assembler.

January 4, 1962, Robert Putman, the plaintiff-appellant, was sitting in a wheel chair, each leg immobilized in a cast as a result of his having broken both legs in an automobile accident three weeks before. As he started to roll the chair, a wheel came off throwing Putman to the floor. In the fall Putman broke both legs at the old breaks. The chair collapsed because of a defective fork stem connecting the wheel to the chair. Faultless Castor Corporation, an Indiana corporation, manufactured the fork stem and supplied it to Erie City Manufacturing Company, a Pennsylvania corporation. Erie City assembled the chair, without changing the fork stem, and sold the completed wheel chair to a retail druggist who, in turn, rented it to Putman, a resident of Lubbock, Texas. The complaint charges the defendants, Faultless Castor and Erie City, with both negligence and breach of implied warranties of fitness and merchantability. The district court granted the defendants' motion to strike the pleadings on implied warranties on the ground that there was no privity of contract between the plaintiff and the defendants. The case was tried therefore on the issue of negligence. The jury, in answers to special interrogatories, fixed the plaintiff's damages at $1,500, but found the defendants free from negligence. Accordingly,

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the district court overruled the plaintiff's motion for judgment and entered judgment for the defendants. We reverse.

In 1952, eight years before the New Jersey Supreme Court decided Henningsen v. Bloomfield Motors, Inc., 3 Judge W.H. Atwell, Federal District Judge in the Northern District of Texas, referred to the Texas public policy, expressed in Decker, of imposing strict liability on the manufacturer, as 'italicized' in the food cases. He made this discerning comment:

'It may not be out of place to observe that a nation with a hundred and fifty million people who own millions of motor cars, should be protected by the same public policy that protects the user of deleterious food.' 4

In Henningsen, characterized by Dean Keeton 5 as 'one of the most significant cases since MacPherson v. Buick Motor Co.', 6 the court, quoting extensively from Decker, could 'see no rational doctrinal basis for differentiating between a fly in a bottle of beverage and a defective automobile'. Sitting as an Erie court in Texas, and also relying on the reasoning in Decker, we see no rational doctrinal difference to justify any distinction between an upset stomach caused by a fly in a coke and a broken leg caused by a weak axle of a wheel chair.

I.

The starting point for our discussion of the Texas cases is, of course, Chief Justice Alexander's opinion in Decker. In that case an ultimate consumer brought an action for injuries to herself, her husband, and other members of her family caused by their having eaten unwholesome sausage manufactured by the Decker Company. The plaintiff did not allege negligence and there was no privity between the parties; Decker Company sold the sausage in a sealed container to a retail grocer who sold it to the plaintiff. The Texas Supreme Court allowed an action for breach of an implied warranty of fitness, basing its holding on the public policy of protecting consumers from unwholesome food and the recognition of the fact that a warranty of fitness is meaningless unless it inures to the benefit of the person who will consume the product. The court took pains to point out that historically the action was in tort, 7 that the 'warranty' was based on public policy, rather than on any notion of the implied warranty as the obligation of a contract or as a contract for the benefit of a third party beneficiary: 8

'While a right of action on such a case is said to spring from 'warranty,' it should be noted that the warranty here referred to is not the

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more modern contractual warranty, but is an obligation imposed by law to protect public health. * * * The doctrine of privity of contract and of the necessity therefor in order to sustain an action grew out of the later action of assumpsit. It (applied) only when one is seeking to enforce a contract. Here the liability of the manufacturer and vendor is imposed by operation of law as a matter of public policy for the protection of the public, and is not dependent on any provision of the contract, either express or implied.' (Emphasis supplied) 164 S.W.2d 831.

It is true that Decker involved food for human consumption. It is true that Justice Alexander cited ancient statutes and ordinances showing the special stringency of food regulations, and that the court expressed its holding in terms of an exception to the general rule. But the rationale for the decision, as the court made clear, is the 'broad principle of the public policy to protect human health and life'. This policy, as was soon evident in other states, cannot be confined to injuries from food. 9 In support of this 'broad principle', the Texas Supreme Court presented reasons for strict liability that would be applicable to many kinds of products and is especially applicable in the case before us: the consumer is often unable to inspect or to analyze the product and often must rely on the manufacturer's representations of quality and fitness, made through advertising, packaging or trademarks; the manufacturer or assembler placing its product in the market place should bear, with its greater capacity to spread the cost, the burden of society's desire to protect the public from injury. 10

The manufacturer or assembler of a wheel chair knows that it is a medical appliance for a class of users requiring

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special protection--the old, the infirm, the crippled. Such persons would seem to have as much of a claim to protection externally as those who are entitled to protection internally because of their consumption of drugs and medicines. If the Decker doctrine extends beyond food products, and we think that it does, a wheel chair case is an a fortiori case for holding a manufacturer and assembler strictly liable to a user.

The Decker doctrine, even if originally confined to food for human consumption, has burst its bonds. For example, the Henningsen court supported its far-reaching decision with long quotations from Decker in imposing strict liability on the manufacturer of an automobile with a defective steering wheel. Dean Prosser cites the Decker opinion as 'perhaps the best over-all statement' of the reasons why sellers of chattels generally should be held strictly liable to ultimate consumers and users. 11

Turning now to Texas cases since Decker, we find cross-currents, especially in the decisions of the Courts of Civil Appeals, but a general trend toward relaxing the requirement of privity.

The day Decker was decided, the Texas Supreme Court decided Griggs Canning Co. v. Josey, 1942, 139 Tex. 623, 164 S.W.2d 835, 142 A.L.R. 1424, extending the same strict liability to retailers as to manufacturers. In Bowman Biscuit Co. of Texas v. Hines, 1952, 151 Tex. 370, 251 S.W.2d 153, however, a majority of the court declined to extend the doctrine to a wholesaler who simply passes on to a retailer a product in a sealed package, and expressed doubt as to retailer's liability. Justice Garwood, joined by others, in a strong dissent approved the Griggs doctrine of retailer liability and argued that wholesaler liability was a logical corollary. This Court has said: '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'. Gladiola Biscuit Co. v. Southern Ice Co., 5 Cir. 1959, 267 F.2d 138, 139.

Five food cases have followed the Decker holding. Coca-Cola Bottling Co. v. Burgess, Tex.Civ.App. 1946, 195 S.W.2d 379; Amarillo Coca-Cola Bottling Co. v. Loudder, Tex.Civ.App. 1947, 207 S.W.2d 632; Sweeney v. Cain, Tex.Civ.App. 1951, 243 S.W.2d 874 (no writ history); Campbell Soup Co. v. Ryan, Tex.Civ.App. 1959, 328 S.W.2d 821; Athens Canning Co. v. Ballard, Tex.Civ.App. 1963, 365 S.W.2d 369. In three cases involving exploding bottles the Courts of Civil...

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