Brumit v. Cokins

• Decision Date: 09 June 1955
• Docket Number: No. 12843,12843
• Citation: 281 S.W.2d 154
• Parties: T. L. BRUMIT, Appellant, v. Nick and Mat COKINS, d/b/a Pier Drive Inn, Appellees.
• Court: Texas Court of Appeals

Page 154

281 S.W.2d 154

T. L. BRUMIT, Appellant, v. Nick and Mat COKINS, d/b/a Pier Drive Inn, Appellees.

No. 12843.

Court of Civil Appeals of Texas, Galveston.

June 9, 1955.

Rehearing Denied July 14, 1955.

Marsene Johnson, Jr., Williams & Thornton and R. Richard Thornton, Galveston, for appellant.

Markwell, Stubbs & Decker and Henry G. Dalehite, Jr., Galveston, for appellees.

CODY, Justice.

This action was brought by appellant, T. L. Brumit, to recover damages alleged to have been sustained by his wife, Melba Lee Brumit, as a result of her drinking a milkshake prepared and served by appellees to her on their premises. The appellees were Nick and Mat Cokins who were partners engaged in business under the name of Pier Drive Inn, preparing and serving food and drink for human consumption on their premises. At the conclusion of appellant's evidence, appellees moved for a directed verdict and the court thereupon withdrew the case from the jury and rendered judgment that appellant take nothing by his suit.

Appellant predicates his appeal on a single point which complains of the court's action in taking the case away from the jury and rendering judgment for appellees.

In the pleading upon which he went to trial, in addition to seeking to hold appellees liable for damages proximately resulting to his wife from consuming food sold her which was not fit for human consumption under a warranty of fitness imposed by public policy, appellant plead various acts as negligence which proximately caused injury to his wife. Appellant also sought to hold appellees liable as having violated the provisions of V.A.T.S. art. 4471, and V.A.T.S. art. 706 of the Penal Code. Appellant did not plead res ipsa loquitur.

In view of the action of the court in withdrawing the case from the jury, we deem it unnecessary to state anything which their answers contained beyond a general denial.

In view of such action, appellant's evidence must be taken as true and all favorable inferences which can reasonably be drawn therefrom must be indulged. When the evidence is so considered, it must be taken to be to the following effect: That about 9:00 p. m. on April 15, 1953, appellant and his wife drove their automobile onto appellees' premises where the wife ordered and was served a hamburger and a milkshake by an employee of appellees. After appellant's wife had consumed the greater portion of the milkshake she started to gasp and cough. She coughed up a piece of glass out onto the ground and another piece onto her hand, which she gave to appellant. Thereupon the appellant took the receptacle with the remainder of the milkshake and showed same to appellee, Nick Cokins, who poured the remainder of the contents of the milkshake on the counter. The same was shown to contain five or six additional pieces of chipped galss. Appellant then drove his wife to the hospital where she coughed up two additional pieces of glass and her throat was examined and treated there by a physician. Appellant further introduced in evidence that his wife suffered pain and incurred medical, hospital and doctor's expense. Appellant introduced a copy of an emergency sheet from St. Mary's Infirmary which we have marked 'Exhibit A' and appended to this opinion. We have omitted therefrom such matters as the certificate of the correctness of the sheet, etc.

Appellees present three counter-points, which we think it may be more constructive to discuss than to merely discuss generally whether the court erred in taking the case from the jury.

Appellees' first counter-point would have us hold that appellant, having introduced into evidence without any limitations as to purpose, as certified copy of the hospital record which purported to show that the wife received no injuries, is bound by said evidence and cannot recover. We overrule this counter-point as being without merit.

As will be noted, the emergency sheet gives data identifying Mrs. Brumit as to age, sex, religion, race, occupation, by whom employed, etc. It then goes on to give the statement made by Mrs. Brumit to the effect that she sipped up some glass in a malted milk which she swallowed and which she first thought was ice, and then realized was glass, and that she spit up a piece thereof after coming to the hospital. The remarks by the physician were 'P. E. Negative. No Diagnosis. X-ray Negative. No Orders.' and that the final disposition of the case was that she was sent home. It was developed on the trial that this was physician's jargon to the effect that a physical examination failed to disclose any injury. This would constitute, of course, the opinion of the physician and such opinion would not be binding on the jury. Travelers Insurance Co. v. Blazier, Tex.Civ.App., 228 S.W.2d 217. In no event could the emergency sheet establish that the appellant's wife did not suffer the pain which she testified that she suffered. It is true, of course, that ordinarily a party who introduces documentary evidence is not allowed to impeach or contradict it, accepting the part which is in his favor and repudiating another part. Here the history shown on the emergency sheet given by Mrs. Brumit was tendered to establish that she had been served a drink with glass in it. The physician's opinion appears to be that there was no detectable physical injury to the structure of her body; however, just as a party may prove a truth or particular facts in direct contradiction of the testimony of his witness, so he may also disprove facts stated in a document which he has introduced. Masterson v. Bouldin, Tex.Civ.App., 151 S.W.2d 301, 308.

Appellees' second counter-point is to the effect that they were in a position of restaurant keepers and the milkshake, which was alleged to have contained glass particles, having been served to appellant's wife for consumption on appellees' premises, no implied warranty as to the wholesomeness or fitness of said milkshake arose as between appellant or his wife and appellees. We overrule the point.

There is authority to support the position taken by appellees in their second counterpoint. F. W. Woolworth Co. v. Wilson, 5 Cir., 74 F.2d 439, 98 A.L.R. 681. The cited case is in all material respects the legal equivalent of the case before us for determination, and went up from Texas, and purports to determine the common law of Texas, and holds in effect that restaurant keepers in preparing and serving food for immediate consumption on the premises are predominantly engaged in performing a service, and not in selling food, and are liable only upon the...