Bowman Biscuit Co. of Tex. v. Hines, 14314

• Decision Date: 11 May 1951
• Docket Number: No. 14314,14314
• Citation: 240 S.W.2d 467
• Parties: BOWMAN BISCUIT CO. OF TEXAS v. HINES.
• Court: Texas Court of Appeals

Page 467

240 S.W.2d 467

BOWMAN BISCUIT CO. OF TEXAS v. HINES.

No. 14314.

Court of Civil Appeals of Texas, Dallas.

May 11, 1951.

Rehearing Denied June 8, 1951.

Leachman, Matthews & Gardere, and Henry D. Akin, all of Dallas, for appellant.

Justice, Moore & Justice, of Athens, for appellee.

CRAMER, Justice.

This is an appeal from an order overruling a plea of privilege. Appellee's wife purchased from appellant's codefendant in the trial court, Sprowl & Armstrong Grocery and Market, located in Sherman, Texas, in the original sealed cellophane bag, a package of 'Apricot Puff' cookies which appelee alleged were manufactured, packaged, sealed, and sold by appellant to its codefendant, the local retail store; that said package of cookies had therein a cooky which contained a thin metal wire which, when eaten by him, caused him severe personal injuries, both when he swallowed it, while it was passing through him, and when being excreted by him. His action was based upon an implied warranty by both the local grocery and the appellant to the effect that the contents of the sealed package were fit for human consumption and free from deleterious substance. Appellee controverted appellant's plea of privilege, setting up that appellant was a private corporation, and that this suit was filed in the county in which the cause of action, or a part thereof, arose, within the meaning of exception 23, Art. 1995, Vernon's Ann.Civ.St. The evidence disclosed that the original sealed package of 'Apricot Puff' cookies was purchased by appellee's wife from the local grocery and that one of the cookies therein, when eaten by appellee at his home, had a wire therein which caused the injury complained of. Upon hearing, however, the evidence, admitted without objection, was that the package of cookies was not manufactured by appellant, but that appellant was the middle man, or wholesaler, who had purchased the cookies from the manufacturer and had sold them to the local grocer.

The plea of privilege was overruled, appellant excepted and has perfected this appeal, assigning four points of error, in substance: (1) Since it neither manufactured, packaged, nor sold the package of cookies, but was only a jobber or middle man, it was not liable to appellee, and, also, appellee having failed to prove the cause of action alleged, its plea of privilege should have been sustained; (2) where the proof showed that appellant sold one dozen packages of apricot puff cookies to the local grocery in Grayson County about eleven days prior to the sale thereof to appellee's wife, and that it neither manufactured, packaged, nor sold the same, and where there was no evidence that there was a label or writing on the package or that the cookies eaten were from the same packages sold by appellant to the local grocery, or that the retailer did not purchase the cookies from some one other than appellant, or that the cookies were in the same condition when eaten as when delivered to the local grocery, and there was no evidence that the wire was not placed in the cookies after they left the hands of appellant, the appellee wholly failed to prove a cause of action against appellant; (3) where the evidence showed appellant was a re-seller or middle man, and as such sold one dozen packages of cookies to the retailer who sold the same to appellee's wife eleven days thereafter, and which were then consumed by appellee, and there being no evidence that the sale was made in Grayson County or that the cookies were delivered by appellant to the retailer in Grayson County, there was error in overruling its plea of privilege; and (4) that the liability imposed upon a manufacturer and retailer for injuries resulting from the sale of impure food products on the theory of implied warranty based on public policy, is not applicable to a re-seller such as appellant.

We will discuss points 1 and 4 together, since both raise the single question of liability on an implied warranty by the wholesaler, as distinguished from the liability of the manufacturer and retailer on an implied warranty. In Houk v. Berg, Tex.Civ.App., 105 S.W. 1176, where the plaintiff sued a retailer, the San Antonio Court of Civil Appeals held that the retailer could not recover over against the wholesaler; citing Needham v. Dial, 4 Tex.Civ.App. 141, 23 S.W. 240. These two cases are cited in Four States Grocery Co v. Gray, Tex.Civ.App., 97 S.W.2d 355, 359. In the last case, Judge Speer stated: 'The rule seems to be that, where a wholesaler sells goods to a dealer for resale, there is no implied warranty of fitness for use. * * * This is especially true if the dealer sells the merchandise in the unbroken packages such as received by him from the wholesaler. * * *' The only holding to the contrary of the above cases is...