Davis v. Gibson Products Co.

• Decision Date: 19 December 1973
• Docket Number: No. 15157,15157
• Citation: 505 S.W.2d 682
• Parties: Larry L. DAVIS, Appellant, v. GIBSON PRODUCTS COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 682

505 S.W.2d 682

Larry L. DAVIS, Appellant, v. GIBSON PRODUCTS COMPANY, Appellee.

No. 15157.

Court of Civil Appeals of Texas,

San Antonio.

Dec. 19, 1973.

Rehearing Denied Feb. 13, 1974.

Southers, Mendelsohn, Goldberg & Lyons, Inc., San Antonio, for appellant.

Clemens, Weiss, Spencer & Welmaker, George H. Spencer, San Antonio, for appellee.

CADENA, Justice.

Plaintiff, Larry L. Davis, individually and as next friend of his minor son, Larry Mark Davis (referred to in this opinion as 'Mark'), appeals from a judgment, based on a jury verdict, ¹ denying recovery against defendant, Gibson Products Co., d/b/a Gibson Discount Store, for injuries suffered by Mark while he was examining a machete which was on display at defendant's store.

According to the petition, Mark picked up the machete, which was encased in a cloth sheath, to examine it. While holding the sheathed machete in his left hand, he began to withdraw the machete from its sheath. As he did so, the blade cut through the bottom of the sheath, and Mark suffered lacerations on the third and fourth fingers of his left hand. Recovery was sought on the basis of 'strict liability' and on several alleged negligent acts on the part of defendant.

By way of twenty-seven points of error, plaintiff asserts that: (1) the trial court erred in failing to submit several special issues requested by plaintiff; (2) the trial court erred in overruling plaintiff's objection to some of the issues submitted; (3) there is no evidence, or in the alternative, insufficient evidence, to support the jury's answers to certain issues; and (4) the trial court erred in not granting plaintiff's motion for rehearing non obstante veredicto.

Defendant's store is of the self-service type, and persons in the store are expected to handle and examine the goods on display and, if they decide to buy an item, to take their selection to a cash register station and pay for it. Defendant desires that people handle and examine the displayed merchandise if they want to buy it and also if they just want to look at it. No signs are displayed informing unescorted teenagers not to enter the store, nor are there any signs requesting those unescorted teenagers who are in the store to leave. A substantial portion of defendant's sales are made to teenagers.

Mark was thirteen years old at the time he was injured. Defendant's manager testified that it was anticipated that persons in the store, including boys thirteen years of age, would handle the machetes, which were on display on an open counter and within the reach of customers, to examine them and that, in the course of such examination the machetes would be withdrawn from their sheaths.

It is undisputed that, immediately prior to, and at the time of, the injury, Mark was in the store accompanied by three boys of about the same age as Mark. After Mark had purchased some gum and one of the other boys had bought some popcorn, the boys went to the sporting goods department. While they were in the vicinity of an archery display, Ralph Schoenfeld, the manager of the department, asked if he could help them and was told that they were '. . . just looking.' According to Schoenfeld, one of the boys upset a box of arrows, and Schoenfeld '. . . remarked at the time it wasn't a playhouse and they should cut it out.' Schoenfeld's testimony on this point was flatly contradicted by the boys, who denied that any one of them had upset a box of arrows and denied being told to 'cut it out' or being told that the store was not a playhouse.

Schoenfeld testified that the boys then proceeded down the aisle to the machete display, where one of the boys picked up a machete. He was joined by two other boys, and '. . . they were all handling them, fooling around.' Schoenfeld said that when one of the boys '. . . acted like he was going to fence,' Schoenfeld told him, 'That's about enough now. Why don't you just put them back and leave?' The boys left the area of the machete display but, according to Schoenfeld, they soon returned at a time when Schoenfeld was attending to some customers, so that, according to Schoenfeld, he was unable to talk to them again. While Schoenfeld was attending to the customers, Mark cut his hand. Schoenfeld did not see the incident.

Again, Schoenfeld's testimony was contradicted by the boys. They denied that they were 'playing around with the machetes' and denied Schoenfeld's statement relating to the 'fencing' incident. They denied that Schoenfeld, or any other employee, had talked to them and denied that any of defendant's employees had commanded, directed or suggested that they put the machetes back 'and leave.' There is no evidence indicating that, at the time he was injured, Mark was 'fooling around' with the machetes or that he was using them in an improper manner.

Mark's testimony relating to the manner in which he cut himself is not a model of consistency, but it is sufficient to justify the conclusion that the injury occurred in the manner described in the petition.

The machete in question, and the sheath in which it was encased, were admitted into evidence. The operator of a testing laboratory testified that his test of the machete and sheath revealed that the blade of the machete was 'sharp' and that it would cut through the sheath if withdrawn under 9 pounds' pressure, and that if it were withdrawn rapidly, the machete would cut through the sheath under 4 pounds' pressure. The jury found that Mark withdrew the machete from its sheath in a 'sudden' manner.

The jury had an opportunity to examine the machete and witnessed the demonstration which showed that it was sharp enough to cut a sheet of paper. An examination of the sheath reveals that it consists of a single layer of cloth sewn together at the bottom by a single strand of thin thread. When the machete is withdrawn from its sheath, the sharp edge of the blade slides across the seam so formed. A simple examination of the sheath justifies describing it as flimsy.

It is undisputed that defendant did not inspect the machetes or the sheaths and subjected them to no tests. It is also undisputed that there were no signs or other warnings as to the existence of any danger to persons handling the machetes.

We point out, at the outset, that we disregard the contention in defendant's brief to the effect that, at the time he was injured, Mark's status was not that of a business invitee or business guest. When defendant attempted to introduce testimony as to Mark's purpose for being in the store, counsel for plaintiff objected on the ground that defendant was attempting to show that Mark was not a business invitee, and that such evidence was irrelevant since, as a matter of law, Mark was a business invitee. After the trial judge remarked that he did not think defendant was contesting that point, counsel for defendant stated, 'No, I'm contesting what these boys were doing with this display.' The court then stated that he did not think '. . . there's a question about the other point,' and counsel for defendant replied, 'No.' Counsel for defendant then continued with his line of questioning.

We believe that defendant admitted, in open court, that Mark was a business invitee at the time he was injured, and that defendant cannot now take a position inconsistent with such admission. Cook v . Winter, 207 S.W.2d 145 (Tex.Civ.App.--Amarillo 1947, writ ref'd n.r .e.).

Plaintiff's second and fifth points complain of the court's failure to submit issues relating to defendant's negligence in failing to place the machetes out of the reach of customers and in failing to place warning signs. No issue was submitted, and none was requested, inquiring whether the machetes, as displayed, created a risk of injury. The evidence does not establish the existence of a dangerous condition as a matter of law. It is clear that defendant's failure to place the machetes out of the reach of customers and his failure to post warnings would constitute negligence only if the display created danger of injury. Under the circumstances, the tendered issues were properly refused. Cf. Adam Dante Corporation v. Sharpe, 483 S.W.2d 452, 455 n. 1 (Tex.1972).

Plaintiff's third point complains of the court's failure to submit issues inquiring whether defendant had been causally negligent in placing on display a machete '. . . which was so sharp that it would cut through the sheath at 4 pounds pressure by a customer.' There was no evidence to support the submission of this issue. The only evidence in the record relating to 4 pounds' pressure is to the effect that the machete would cut through the sheath if withdrawn Rapidly under 4 pounds' pressure. Point No. 4, which complains of the refusal of the trial court to submit issues concerning defendant's negligence in placing on display a machete encased in a sheath so thin that the blade would cut through the sheath when withdrawn at 4 pounds' pressure by a customer is without merit. This inquiry was actually submitted to the jury by Issue No. 3.

Point No. 6 concerns the court's failure to submit issues inquiring whether defendant was causally negligent in failing to submit the machetes and sheaths to tests. The requested issues relating to testing are but shades of the submitted issues concerning defendant's failure to inspect. Such issues were, therefore, properly refused. Rule 279, Texas Rules of Civil Procedure; Hodges on Special Issue Submission in Texas, Section 54, p. 136 (1959).

Point No. 7 complains of the submission of Special Issue No. 6, inquiring whether Mark was 'warned' to stop playing with the machetes. Plaintiff insists that the issue was submitted in such a manner that it amounted to a comment on the weight of the evidence, since it assumed that Mark was under a duty not to play with the machetes. Plaintiff did not object to the submission of the issue on this ground. Point No. 7 cannot be considered.

Points Nos. 8--25, inclusive, contend that the...