Cruz v. Ansul Chemical Company

• Decision Date: 10 February 1966
• Docket Number: No. 146,146
• Parties: Andres CRUZ, Appellant, v. ANSUL CHEMICAL COMPANY et al., Appellee.
• Court: Texas Court of Appeals

Page 944

399 S.W.2d 944

Andres CRUZ, Appellant, v. ANSUL CHEMICAL COMPANY et al., Appellee.

No. 146.

Court of Civil Appeals of Texas, Corpus Christi.

Feb. 10, 1966.

Rehearing Denied March 10, 1966.

Raymond E. Ehrlich, Pharr, for appellant.

Rankin, Kern & Martinez, by Stonewall Van Wie, III, Ewers, Toothaker, Ewers, Byfield & Abbott, by O C. Hamilton, Jr., McAllen, for appellee.

GREEN, Chief Justice.

Special exceptions filed separately by each of the two defendants to plaintiff's original petition were sustained by the trial court, and plaintiff was granted leave to amend. Plaintiff refused to amend, and the suit was ordered dismissed. From such order, plaintiff has appealed to this court.

Plaintiff alleged in his petition that on or about July 20, 1963, he purchased from defendant Murray, doing business as Murray Boat Works, in McAllen, Texas, hereinafter referred to as Murray, a fire extinguisher manufactured by defendant Ansul Chemical Company, a Wisconsin Corporation, hereinafter called Ansul, paying therefor the customary price of $15.00. Plaintiff told Murray that the fire extinguisher was to be used aboard a boat, and that he wanted one that would be adequate to extinguish any fires that might occur on the boat. The petition proceeds to allege as follows:

'* * * through the nature of the product purchased by the Plaintiff from the Defendants, there existed and was an implied warranty that the fire extingusher would extinguish fires and that it was fully charged with the necessary chemicals to extinguish fires. Plaintiff could not and did not test the fire extinguisher prior to August 18, 1963, and the safety pin was intact.

IV.

That on or about August 18, 1963, at about 10:00 o'clock in the morning, Plaintiff was aboard his boat in the Laguna Madre and had aboard his boat as guests seven passengers. In the course of the operation of the boat a small fire broke out aboard the said boat which fire was of such a small size that any properly operating fire extinguisher could quickly extinguish the flame. Plaintiff immediately seized the fire extinguisher as aforesaid and attempted to extinguish the flame. In spite of the efforts of Plaintiff to use the fire extinguisher, the said extinguisher failed to perform its function and no extinguishing material emitted from the fire extinguisher. Several of the passengers aboard Plaintiff's boat tried to use the fire extinguisher but they, too, were unable to cause the extinguisher to perform its function as warranted by the implied warranty above stated. The flames spread and before the boat could be propelled to the shore, the entire boat burned, sank and became totally destroyed with no hope of salvage.'

The petition thereafter alleges plaintiff's damages, incurred 'as a result of the breach of warranty as aforesaid.'

(1) Appellant bases his appeal from the order of the court dismissing his suit on one point error, as follows:

'POINT OF ERROR NO. 1

The Court erred in sustaining Special Exceptions No. 1, No. 2 and No. 3 of the First Amended Original Answers filed by each Defendant and holding that the fire extinguisher had no causal relationship to Plaintiff's damages, and that a seller who does not manufacture and a manufacturer who does not sell directly to the consumer can not be required to respond in damages for the failure of a fire extinguisher to function properly in the absence of an express contract.'

Appeal as to Defendant Ansul

Defendant Ansul, manufacturer of the fire extintuisher, by his special exceptions raised principally the proposition that the petition contained no allegations establishing any privity of contract or relationship between it and plaintiff, so that as a matter of law said defendant could not be held liable for plaintiff's damages as alleged; and that public policy would require an express contract assuming such liability, since the price charged for the thing sold, being $15.00, cannot justify the assumption that the manufacturer becomes the insurer of all property that such fire extinguisher may be kept in to extinguish fires.

In considering the sufficiency of plaintiff's allegations in his petition to show liability of Ansul, we need not speculate on whether the pleadings could have withstood attack if they had contained proper allegations for damages based upon negligence, breach of express contractual warranty, misrepresentation, or defects in an allegedly inherently dangerous instrumentality. Authorities declaring a manufacturer's liability in such instances, or in contaminated food cases, for either human consumption (Jacob E. Decker & Sons, Inc. v. Capps. 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479) or animal consumption, where a manufacturer's tag guaranteed the analysis of the contents, (Burrus Feed Mills, Inc. v. Reeder, Tex.Civ.App., 391 S.W.2d 121, n. w. h.) do not apply to the fact situation here alleged.

Plaintiff's suit is based solely on allegations of a breach of an alleged implied warranty not involving negligence. No privity of contract existed between Plaintiff and Ansul. We feel that the present law in Texas governing the suit as against defendant Ansul is set forth in Brown v. Howard, Tex.Civ.App., 285 S.W.2d 752, writ ref. n. r. e., wherein Judge Norvell, speaking for the court, stated:

'The question posed by this appeal is whether or not the rule of 'implied warranty' set forth in Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479, has application to one formulating chemicals for use as a cattle spray. In the case cited it was held that a non-negligent processor could be held liable in damages to one injured from eating contaminated foodstuffs prepared by him, although no privity of contract between the processor and the consumer was shown. As pointed out in the opinion, the 'implied warranty' which is made the basis of liability is hardly the creature of contract but has its basis in a public policy which demands that such an obligation be imposed for the protection of the public health. This type of warranty actually sounds in tort (action upon the case) and was known to the law prior to the development of the action of assumpsit. Williston on Sales, § 195. It should not be confused with the contractual warranty, either expressed or implied, in which privity of contract is an essential element of recovery. Davis v. Ferguson, Tex.Civ.App., 255 S.W. 655, contains the generally accepted statement of the rule applying to implied contractual warranties. Turner & Clayton, Inc. v. Shackelford, Tex.Com.App., 288 S.W. 815; Baylor v. Eastern Seed Co., Tex.Civ.App., 191 S.W.2d 689; Donelson v. Fairmont Foods Co., Tex.Civ.App., 252 S.W.2d 796; Blessington v. McCrory Stores Corp., 279 App.Div. 806, 109 N.Y.S.2d 719, affirmed 305 N.Y. 140, 111 N.E.2d 421, 37 A.L.R.2d 698.'

'No one disputes the proposition that a processor of chemical for cattle spraying purposes should be held liable for the proximate results of his negligence, but appellants by their pleadings in effect place Klauss in the position of a non-negligent manufacturer and the case must be viewed from that standpoint. In a sense then an attempt is being made to affix liability without fault. Such rules of liability have been described as onerous and require a strong public policy to support them. Race v. Krum, 222 N.Y. 410, 118 N.E. 853, 854, L.R.A.1918F, 1172. The only authority cited by appellants in support of their position, other than the Decker case, is International Milling Co. v. Jernigan, Tex.Civ.App., 191 S.W.2d 526, a plea of privilege case in which the rule was apparently extended to include animal foodstuffs. Cf. F. A. Piper Co. v. Oppenheimer, Tex.Civ.App., 158 S.W. 777; Williston on Sales, § 242. The acceptance of appellants' theory in the present case would require a further extension which is not sanctioned by any Texas case called to our attention and one we feel unauthorized to make. A careful reading of the Decker case and the authorities therein cited disclose an emphasis upon 'food for human consumption."

'We feel unauthorized on the basis of the Decker case to...