Armstrong Packing Co. v. Clem

• Decision Date: 09 November 1912
• Parties: ARMSTRONG PACKING CO. v. CLEM.
• Court: Texas Court of Appeals

Page 576

151 S.W. 576

ARMSTRONG PACKING CO. v. CLEM.

Court of Civil Appeals of Texas. Dallas.

November 9, 1912.

Rehearing Denied November 30, 1912.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Action by A. Clem against the Armstrong Packing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Flippen, McCormick, Gresham & Freeman, of Dallas, for appellant. Gibson & Calloway, of Dallas, for appellee.

RAINEY, C. J.

This is an action to recover damages for personal injuries to appellee's wife, Emma Clem, brought by appellee against appellant. Armstrong Packing Company, alleging, in effect, that appellant was a manufacturing company, manufacturing, among other things, a certain brand of soap labeled "B. & B.," or "Biggest and Best," which was placed on the market and sold, through retailers to ultimate consumers, the public generally; that some of this soap was purchased by appellee from a retailer for use, carried home, and used in the laundry of their family clothes, from the use of which said soap appellee's wife became poisoned and injured; that her hands, arms, and other parts of her body that came in contact with the soap, or came in contact with her hands and arms after the use of the soap, became poisoned and inflamed, causing her great pain and suffering, rendering her unable to perform her household duties, and she has become an invalid and will so remain the rest of her life; that appellant was negligent in the manufacture of said soap and placing it upon the market. Appellant answered by general and special exceptions and general denial, and specially that the soap was manufactured by it exclusively for sale to jobbers, never sold to retail dealers, nor did it warrant same to them. "The soap was not represented to be for bathing purposes, but only for laundry and ordinary cleaning purposes; that the ingredients of same are purely vegetable products, and that the soap does not contain any oils or animal greases, and that the same is free from all excessive poisonous, injurious, or deleterious ingredients and substances; that the defendant has used and uses the greatest care and caution in seeing that the soap was made only from harmless substances, and that there was excluded from it any injurious, poisonous, or deleterious substances whatever in the finished product; that it would have been impossible for such injuries as are claimed by plaintiff to have been sustained by his wife from using the brand of soap known as Armstrong's B. & B. soap, but that such injuries, if they occurred at all, were not caused by said soap, but were caused by some other agency to the defendant unknown. The defendant on the trial filed a supplemental answer alleging contributory negligence on the part of the plaintiff and his wife; that Mrs. Clem was performing her labor while in a delicate condition, which caused or aggravated her injuries; that she was guilty of negligence in not immediately ceasing when she began to discover that something was injuring her hands; that the plaintiff and his wife were guilty of negligence in not at once seeking the advice of a physician; that the plaintiff and his wife were both guilty of contributory negligence in using unsterilized scissors to open the blisters on the different parts of her body, and that the plaintiff and Mrs. Clem were guilty of contributory negligence in permitting the watery substances from the blisters to come in contact with other portions of her body." A trial resulted in a verdict and judgment for appellee for $1,500, from which the packing company appeals.

The assignments that the court erred in overruling the general exception to plaintiff's petition, and the assignment that the evidence is insufficient to sustain the verdict and judgment, raise practically the same issues, and therefore they will be considered in the same connection. The evidence, in substance, substantially supports the allegations of plaintiff's petition, in that it shows that the appellant was manufacturing washing soap for the market, selling same to jobbers, the jobbers selling to retailers, and they, in turn, selling to consumers. A retailer sold some of this soap to the appellee, whose wife used it in washing the clothes of the family, and she was injured by the use of the same in the manner alleged by plaintiff. The formula used by appellant for making the soap necessarily contained poisonous ingredients, which become harmless in the proper preparation of the soap. In the batch of soap sold to plaintiff the poison used was not neutralized, but it contained a sufficient quantity to injure plaintiff's wife in the use thereof, for which it was intended. The evidence is sufficient to show that appellant was negligent in preparing the particular batch of soap sold to plaintiff. This case, as shown by the record, was tried...