Capetillo v. Crosby County Fuel Association, 7639

• Decision Date: 10 October 1966
• Docket Number: No. 7639,7639
• Citation: 407 S.W.2d 335
• Parties: Norberto CAPETILLO, Appellant, v. The CROSBY COUNTY FUEL ASSOCIATION, Appellee. . Amarillo
• Court: Texas Court of Appeals

Page 335

407 S.W.2d 335

Norberto CAPETILLO, Appellant, v. The CROSBY COUNTY FUEL ASSOCIATION, Appellee.

No. 7639.

Court of Civil Appeals of Texas Amarillo.

Oct. 10, 1966.

Brown, Shuman & Harding, Lubbock, for appellant.

McWhorter, Cobb, Johnson & Cobb, Crenshaw, Dupree & Milam, Cecil Kuhne and Tom S. Milam, Lubbock, of Counsel, for appellee.

CHAPMAN, Justice.

Plaintiff, Norberto Capetillo, sued Crosby County Fuel Association for damages to his person resulting from anhydrous ammonia escaping from a pop-off valve on a fertilizer tank which contained liquid fertilizer. The parties will be referred to as in the court below.

The suit was based both upon specific grounds of common law negligence, and upon liability without fault--allegations of breach of implied warranty. The trial court sustained exceptions to plaintiff's pleadings that asserted a cause of action grounded solely upon implied warranty, such exceptions, in effect, being leveled at the failure of the pleadings upon their face to show contractual relations or privity between plaintiff and defendant. The case was then tried and submitted to the jury upon 38 issues of negligence of defendant and contributory negligence of plaintiff.

The jury found no issues or series of issues of negligence against defendant upon which a verdict and judgment could be based for plaintiff under the negligence theory; absolved plaintiff of any grounds of contributory negligence; found the accident was the result of an unavoidable accident; and answered, 'None' to the damage issues.

The appeal is based solely upon alleged error of the court in sustaining special exceptions to plaintiff's asserted cause which sought to place upon defendant liability under the implied warranty theory. The record is before us upon briefs and the transcript, without a statement of facts.

Plaintiff's pleadings allege in effect that defendant sold anhydrous ammonia fertilizer to farmers, including plaintiff's employer, Johnny Nunnley, and as an inducement to attract customers, furnished the tank in question owned by defendant on a bailment basis for the convenience of the farmers in applying the fertilizer to their land; that the pop-off valve was located adjacent to the outlet controls on the tank and anyone using the outlet controls would be in close proximity to the pressure relief valve; that when said valve popped off it allowed ammonia vapor liquid to escape under pressure; and that it did pop off while plaintiff was using the outlet controls and sprayed ammonia liquid and vapor upon plaintiff to his serious damage.

There were also allegations that the tank was negligently designed in such manner as to creat a hazardous condition in the event the relief valve popped off while one was attempting to remove the contents thereof; that defendant in furnishing the tank for application of the fertilizer impliedly warrantied it was satisfactory for use for the purpose for which it was intended; i.e., storage under pressure of anhydrous ammonia fertilizer and removal of the contents thereof; and that defendant has breached such warranties.

The manufacturer of the tank was not sued, so we have a facet in the strict liability field in which the plaintiff seeks to recover against a 'middle man' rather than a manufacturer. We have tried to read all the Texas appellate court opinions from Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942) to Cruz v. Ansul Chemical Company, Tex.Civ.App., 399 S.W.2d 944 (1966 N.R.E.), in an effort to determine the trend of the Texas courts concerning the extension of the doctrine announced in Jacob E . Decker & Sons, Inc. v. Capps, supra, as well as many opinions from other jurisdictions.

Regardless of all that has been said by text writers in this state and case law from some other jurisdictions concerning the fall of the citadel of privity and the inevitability of the State of Texas becoming a part of the more 'enlightened' jurisdictions capitulating to the attack upon that citadel, the fact still remains that our court of last resort has not disavowed its majority opinion in Bowman Biscuit Co. of Texas v. Hines, 151 Tex. 370, 251 S.W.2d 153. There, Justice Smith spoke for the 5--4 majority in distinguishing in strong language the difference in abandonment of privity between the consumer and manufacturer of food for human consumption (to which he agreed) and that of abandonment of privity between the retailer and wholesaler (the middle man) and the consumer, saying: 'The situation of wholesaler-retailer and consumer is properly governed by the rules of negligence law. The retailer owes to the consumer the duty to supply goods packed by reliable manufacturers, and such as are without imperfections that may be discovered by an exercise of care, skill and experience of dealers in such products generally.' (All emphases added).

As a matter of fact: 'Strict liability has been repudiated in strong language in Texas' by our Supreme Court, Klostermann v. Houston Geophysical Company, Tex.Civ.App., 315 S.W.2d 664 (writ ref.), except in food cases. In 1958 that court refused a writ outright in Klostermann v. Houston Geophysical Company, supra, wherein the 'enlightened' view of strict liability was rejected where suit was filed for damages resulting from seismograph operations.

It is not easy to categorize the area of products liability into which our case must be placed. Certainly it is not in the food area, and those cases are used only for the general principles announced. If it could be said to be in the category of storage and use of explosives, then Texas has abandoned the common law rule of absolute liability laid down in the old English case of Rylands v. Fletcher, (L.R. 3 H.L. 330) and predicate liability upon negligence, in the absence of controlling statutes or facts so obvious as to constitute a nuisance as a matter of law. Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221, 224; Klostermann v. Houston Geophysical Co., supra.

Though N.R.E. cases, Brown v. Howard, Tex.Civ.App., 285 S.W.2d 752, and Cruz v. Ansul Chemical Company, supra, give some indication that as late as February 1966 (the date of the latter announcement) the Supreme Court of Taxas had not capitulated to the liability without fault doctrine outside of food cases. At least it approved the result reached in these last two cited cases.

Appellant relies chiefly upon a case from the federal jurisdiction announced by our Fifth Circuit in 1964 ¹ wherein that court in a strong opinion held privity between user and manufacturer or assembler was unnecessary. That court stated the Supreme Court of Texas '* * * has not committed itself to a position on the necessity for privity as a prerequisite to recovery in non-food cases.'

The function of the federal courts is to attempt to follow and apply the substantive...