Bowman Biscuit Co. of Tex. v. Hines, A-3298

Decision Date16 July 1952
Docket NumberNo. A-3298,A-3298
PartiesBOWMAN BISCUIT CO. OF TEXAS v. HINES.
CourtTexas Supreme Court

Leachman, Matthews & Gardere, Dallas, for appellant.

Justice, Moore & Justice, Athens, for appellee.

SMITH, Justice.

On July 3, 1951, the Honorable Court of Civil Appeals for the Fifth Supreme Judicial District of Texas, through the Honorable Joel R. Bond, Chief Justice, certified to this court for adjudication and answer the following question:

'Where the ultimate consumer of food, sold in the original sealed package for human consumption, suffers injury and damage from such food being contaminated, is the wholesaler, or middleman, as well as the manufacturer and retailer, liable to such ultimate consumer for damages proximately resulting to him by reason of the eating of such food, under an implied warranty imposed by law as a matter of public policy?'

On original hearing the above certified question was answered in the affirmative in an opinion by Associate Justice GARWOOD joined by Associate Justices SHARP, BREWSTER, GRIFFIN and WILSON. Chief Justice HICKMAN and Associate Justice SMEDLEY and CALVERT joined Associate Justice SMITH in a dissenting opinion holding that the question should be answered in the negative.

On rehearing, Associate Justice WILSON has this day delivered an opinion concurring with the view that the question should be answered in the negative; therefore, the motion for rehearing is granted and the certified question is answered 'No.'

GARWOOD, Justice.

Due to the action taken on rehearing, the following, which was heretofore the opinion of the court, now represents the views of a minority of the justices, but is filed in its original form, instead of in the form of a dissent, for convenience. Justices SHARP, BREWSTER and GRIFFIN concur herein, Justice BREWSTER largely for the reason that the legislature has taken no action since the decision in Griggs Canning Co. v. Josey, infra, toward changing the law as therein declared.

The question, certified by the Dallas Court of Civil Appeals, 240 S.W.2d 467, 468, arises on a plea of privilege of the defendant-appellant, Bowman Biscuit Company of Texas, in a personal injury suit filed in Grayson County by A. C. Hines. The alleged injuries of the plaintiff-appellee, Hines, were caused by swallowing a wire in an 'apricot puff' cooky purchased in a sealed cellophane package by his wife from their retail grocer, who in turn had purchased it in the same package from the defendant -appellant as wholesaler or 'middleman.' Except as might legally result from the bare fact of an ordinary sale, no negligence of the defendant-appellant nor anything approaching an express warranty of the goods is involved. The question reads:

'Where the ultimate consumer of food, sold in the original sealed package for human consumption, suffers injury and damage from such food being contaminated, is the wholesaler, or middleman, as well as the manufacturer and retailer, liable to such ultimate consumer for damages proximately resulting to him by reason of the eating of such food, under an implied warranty imposed by law as a matter of public policy?'

The assumption, which the question makes, of established liability of the retailer and manufacturer is, or course, due to our own clear and studied holdings to that effect in Griggs Canning Co. v. Josey, 1942, 139 Tex. 623, 164 S.W.2d 835, 142 A.L.R. 1424, and Decker & Sons, Inc., v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479. To those decisions, and especially the broad rule therein stated by the lat Chief Justice Alexander, who wrote the opinions, as well as to certain language from a Missouri case quoted by Judge Martin of our Commission of Appeals in Walker v. Great Atlantic & Pacific Tea Co., 131 Tex. 57, 112 S.W.2d 170, is also due the tentative opinion of the Court of Civil Appeals in the instant case, favoring an affirmative answer to the question certified as against a possibly contrary view derivable from earlier decisions of other Courts of Civil Appeals in Needham v. Dial, 4 Tex.Civ.App. 141, 23 S.W. 240, Houk v. Berg, Tex.Civ.App., 105 S.W. 1176, and Jax Beer Co. v. Schaeffer, Tex.Civ.App., 173 S.W.2d 285.

In the Griggs Canning Co., case there was no proof of negligence or express warranty on the part of the defendant retailer. In the Decker & Sons, Inc., case the manufacturer of the impure canned goods was not negligent and had no contract with the injured consumer whose husband had purchased them from a retailer. Our earlier decision in the Walker case adopted the opinion of the Commission of Appeals holding the nonnegligent retailer liable to the injured consumer on facts identical to those of the Griggs Canning Co., case except that the lable on the can in the Walker case did not disclose the identity of the manufacturer, though it did plainly indicate the retailer to be merely 'Distributors.'

The rule of liability as stated in the Griggs Canning Co., and Decker & Sons, Inc., decisions, and indeed the whole philosophy of the opinions in those two cases would include allowing the consumer his action against the wholesaler as well as against the manufacturer and retailer. Furthermore, since we have held the nonnegligent manufacturer liable without any basis in contract and have also held the nonnegligent retailer, it appears to be only a logical step to allow the consumer an action against the wholesaler. The retailer held liable to the consumer obviously ought to have a recovery over against the wholesaler, and if that is so, there seems no good reason not to let the consumer attack the wholesaler in the first instance and without benefit of contract, just as we allow him to attack the manufacturer. No doubt the wholesaler held liable to the consumer or to the retailer should in turn be allowed to shift liability onto the manufacturer.

While few reported cases from other states appear to present the narrow point of liability of the wholesaler as distinguished from that of the retailer or manufacturer, the holdings in Nelson v. West Coast Dairy Co., 5 Wash.2d 284, 105 P.2d 76, 130 A.L.R. 606, and Swengel v. F. & E. Wholesale Grocery Co., 147 Kan. 555, 77 P.2d 930, support our conclusion above stated. A contrary view is taken in Degouveia v. H. D. Lee Mercantile Co., 231 Mo.App. 447, 100 S.W.2d 336, the opinion in which was quoted in our Walker case abovementioned, in so far as it favored liability of the retailer, the latter point being the one at issue in the Walker case. However, the approved quotation from the Degouveia case included the statement that a retailer held liable to the consumer would, as a matter of course, have redress over against the wholesaler, and as before stated, we see no great difference between that proposition and allowing the consumer to proceed against the wholesaler in the first instance.

Up to this point, that is to say, the point that liability of the retailer as determined in the Griggs Canning Co., case (which we will hereinafter refer to as the 'Griggs Case') logically entails liability of the wholesaler, there appears to be no divergence of views among ourselves. Doubtless we are also unanimous that, had that decision gone the other way, the liability of the defendant-wholesaler in the instant case would be very doubtful. But a large minority of the court feels that the Griggs case is such bad law that, though it is neither old enough to be at all obsolete nor new enough to be yet unfamiliar to the bar or the legislature, it should now be repudiated; and therein lies our only controversy.

The practical application of stare decisis in so far as that term means adherence to earlier decisions (see Green, The Development of the Doctrine of Stare Decisis and the Extent to Which It Should Be applied, Ill.L.Rev. Vol. XL, p. 303) has, of course, been the subject of too much and varied opinion to permit of yet another commentary here. For present purposes, we may probably take it safely to mean that we shall be very reluctant to overrule our own decisions unless we have somewhat more than ordinary reason to consider them wrong as of the day they were rendered or good reason to believe that subsequent events have made them obsolete. Clearly, a rule laid down by our court of yesterday is not to be repudiated today simply because today's judges think they would have reached a different conclusion had they constituted the earlier court. Other reasons, such as substantial criticism by the bar, respected law writers or courts of other jurisdictions should ordinarily enter the picture. So also, in a proper case, should the attitude of the legislature, which may be expressed either by action or inaction and can usually be relied on to rectify judicial aberrations not in the public interest. And if we of today should feel inclined to repudiate a prior decision relying altogether on such peculiarly subjective matters as our own ideas of logic and intelligent appreciation of specific precedents, as contrasted with those of the earlier court, should we not refrain from so doing unless the judicial technique of our predecessors in the particular case seems not merely erroneous, but unusually deficient? Judged by these general standards, it is felt that the question of whether the Griggs case is to be overruled is not even a close one.

That there was a dissent in the Griggs case does, no doubt, make a difference, but, of course, only one of degree, while it must also be remembered that dissents under some circumstances-and these existed in the Griggs case-tend to emphasize the deliberateness with which the majority conclusion was reached. The dissent in question was but a less elaborate statement of the same argument advanced today, which seems to be primarily that the decision was and is in definance of what is said to be the 'majority rule' or 'weight of authority.'

By that is meant purely common or...

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