Bernard v. Dresser Industries, Inc.
| Decision Date | 18 April 1985 |
| Docket Number | No. 09,09 |
| Citation | 691 S.W.2d 734 |
| Parties | 41 UCC Rep.Serv. 776 Billy W. BERNARD, et al., Appellants, v. DRESSER INDUSTRIES, INC., Appellee. 84 276 CV. . Opinion filed |
| Court | Texas Court of Appeals |
On November 2, 1979, the Appellant was seriously injured, according to his evidence and testimony, while testing a length of pipe, being an expansion joint. Bernard was employed by Ford, Bacon & Davis, a construction contractor. The expansion joint was a hollow pipe, round and shaped something like an accordian. The "expansion joint" allows the pipeline to expand and contract due to fluctuations in weather conditions or other operating circumstances in the pipe system. The testing procedure was to insure that this particular expansion joint was functional and would not leak. Appellant was working with another pipefitter, Watz, under the direction and instruction of their foreman, Michael Gillespie. The fitters were instructed to put solid pieces of metal known as "blind flanges" on both ends of the joint and to pump approximately 15 pounds of air pressure into the joint to test it for air leaks. Watz obtained a 30 pound Ashcroft pressure gauge that very morning from the engineering department of the Gulf Refinery, being the scene of the work. This 30 pound Ashcroft gauge was to be used to measure the air pressure within the expansion joint during the 15 pound test.
Undoubtedly and unquestionably this was the ordinary use and purpose of the pressure gauge. Watz and Gillespie obtained the gauge personally. They observed the Gulf engineer remove the gauge from a closed, unopened, cardboard box which appeared to be a new box. They described the colors of the box as blue and white. The box was not torn, discolored, crushed, soiled or worn in any way. The evidence is abundant that the 30 pound Ashcroft gauge appeared to be new if not actually brand new in appearance. It was not scratched, dirtied, dented, rusted, broken, corroded nor tarnished. There is some probative evidence showing that a plastic cap on the bottom of the nipple portion was still on the gauge when it was taken out of the box. There was some evidence of probative force to show that gauges used in testing were not put back into their boxes. There was no evidence of mistreatment, in any manner, of the gauge and it looked like it was in the same condition as when it was purchased. This 30 pound gauge was the only method Watz and Appellant had to measure the air pressure that was being built up in the expansion joint. Appellant testified the gauge indicated about ten pounds of pressure on the first test. On the second test he said the gauge in question did not give any reading at all. After "ten seconds it hadn't aired up." But the first test was not conclusive because the testers, the fitters, realized that the air was leaking out of the joint where the blind flanges had been connected or attached. Hence, the second test was necessary. After receiving further instructions and orders from their foreman, Appellant and Watz tightened the blind flanges at the end of the expansion joint by installing additional bolts and tightening all of the bolts. The record shows that during this period of time between the tests, the gauge had not been dropped, misused, abused nor used in any unusual way. After placing additional bolts, and the further tightening of the blind flanges, the testing resumed. The fitters closely watched and observed the 30 pound Ashcroft gauge as air pressure was pumped into the joint. The gauge did not measure or indicate any pressure building up.
Then an explosion occurred which resulted in injuries and damages claimed by Appellant. The gauge--and under this record the jury had the prerogative to believe it was a brand new gauge or a new gauge--had measured and indicated 10 to 15 pounds of air pressure on the earliest test or tests. But on the last test it totally failed to function. It did not measure any pressure. Had it measured pressure between 10 to 15 pounds per square inch, then the fitters would either have reduced or cut off the air supply. Appellant was struck by a piece of metal when the expansion joint exploded. Appellant contended that he sustained injuries to his back, legs, stomach, groin and other parts of his body.
The jury found that the gauge, at the time it was sold by Dresser Industries, Inc., was unfit for the ordinary purposes for which gauges are used and that "unfit condition" was a proximate cause of the occurrence or explosion. These issues found their genesis in TEX.BUS. & COM.CODE ANN. sec. 2.314(b)(3) (Vernon 1968). The special issues followed closely 3 State Bar of Texas, Texas Pattern Jury Charges PJC 71.07 (1982). Chief Justice Pope, writing for the Supreme Court in Fleishman v. Guadiano, 651 S.W.2d 730 (Tex.1983), has written at page 731:
TEX.BUS. & COM.CODE ANN. sec. 2.314(a), (b)(3) (Vernon 1968) reads, in part:
....
"(3) are fit for the ordinary purposes for which such goods are used...."
It is undisputed that Dresser Industries, Inc., is a merchant with respect to pressure gauges. Under this record we find and hold that there is sufficient, if not ample, evidence and testimony of probative force to sustain the jury's findings bottomed on TEX.BUS. & COM.CODE ANN. sec. 2.314(b)(3). The warranty of merchantability applies to sales for use as well as sales for resale. The Business & Commerce Code statutorily recognizes and mandates the implied warranty of merchantability. See TEX.BUS. & COM.CODE ANN. sec. 2.314, also known as Texas U.C.C. (Vernon 1968). In Garcia v. Texas Instruments, Inc., 610 S.W.2d 456 (Tex.1980), the court held unequivocally that a cause of action exists under the Uniform Commercial Code for personal injuries resulting from the breach of implied warranty of merchantability, citing and quoting in detail from TEX.BUS. & COM.CODE ANN. sec. 2.314(b)(3) and sec. 2.715(b)(2) providing:
"(b) Consequential damages resulting from the seller's breach include
....
"(2) injury to person or property proximately resulting from any breach of warranty."
We quote from Garcia v. Texas Instruments, Inc., supra, at page 462:
....
"(b) Consequential damages resulting from the seller's breach include
....
....
(c) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not." (Emphasis theirs)
It is interesting to note that the Court, in Garcia, supra, cited, with approval, Berry v. G.D. Searle & Co., 56 Ill.2d 548, 309 N.E.2d 550 (1974), quoting as follows:
" '... clearly demonstrate the legislative intent to create a statutory cause of action for breach of implied warranty to afford consumer protection to those who sustain personal injuries resulting from product deficiencies. This remedy is distinct and in addition to that existing in strict tort liability
....
" "
It is significant that our Supreme Court placed its...
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...the meaning of "unfit" as contemplated by Section 2.314 of the UCC. Fiberex relies upon Bernard v. Dresser Industries, Inc., 691 S.W.2d 734, 738 (Tex.App.--Beaumont 1985, writ ref'd n.r.e.) to support its position that 1) it is not necessary to show a defect but only that the resin was unfi......
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...improbable or unbelievable that it would be clearly unjust to permit the judgment to stand. Bernard v. Dresser Indus., Inc., 691 S.W.2d 734, 738-39 (Tex.App.--Beaumont 1985, writ ref'd n.r.e.). Appellant's points of error are overruled. The judgment of the trial court is AFFIRMED. ...