Eli Lilly and Co. v. Casey
| Decision Date | 22 October 1971 |
| Docket Number | No. 4485,4485 |
| Citation | 472 S.W.2d 598,10 UCCRep.Serv. 39 |
| Parties | 10 UCC Rep.Serv. 39 ELI LILLY AND COMPANY, Appellant, v. Roy CASEY, Appellee. |
| Court | Texas Court of Appeals |
McMahon, Smart, Sprain, Wilson & Camp, Stephen Suttle, Abilene, Barney Oden, Jr., El Paso, for appellant.
Wagstaff, Alvis, Alvis, Cochran & Leonard, David Stubbeman, Abilene, for appellee.
This is a venue case. Appellee, Roy Casey, brought suit in Haskell County against appellant, Eli Lilly and Company, and Indiana corporation with a permit to do business in Texas, alleging that he purchased a product, Treflan, which was manufactured by appellant, and that Treflan was not reasonably fit for the purpose for which it was manufactured and sold. Appellant filed its plea of privilege requesting that the case be transferred to appellant's place of domicile and residence. Appellee filed his controverting affidavit alleging the exceptions in subdivisions 23 and 27 of Article 1995, Vernon's Ann.Tex.Civ.St. The trial court overruled appellant's plea of privilege and appellant, Eli Lilly and Company, appeals. We reverse and render.
Appellee asserts a cause of action against appellant for a breach of 'what in law is called an implied warranty of fitness or merchantability'. The evidence shows that the product was purchased by appellee for the purpose of preventing weeds from growing in appellee's cotton. The product was not purchased from appellant. Appellant manufactures the product, Treflan, but does not and has not at any time sold Treflan to the general public. The product is sold by independent retail outlets.
Appellee testified that he purchased Treflan to control weeds and that he 'found no results, actually, as far as weed control'. He was asked: 'What expense or what action did you take after you applied Treflan to control the weeds?' He answered: 'Hoeing, replanting, rolling cultivators.'
Appellant contends that appellee has neither pleaded nor proved a cause of action under the doctrine of 'strict liability'. Also, since economic loss only is involved, the principles of the law of sales apply and appellee cannot recover because he failed to prove privity of contract. We agree. Appelee argues that the strict liability theory is applicable and that privity is not required.
The strict liability doctrine was announced by our Supreme Court in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup.1967) . The Court adopted Section 402A of the American Law Institute's Restatement of the Law of Torts (2d Ed.) as the rule to be followed. This section reads as follows:
'(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.'
In the instant case there is no allegation or proof that the product is 'unreasonably dangerous to the user or consumer or to his property', nor is there any evidence of 'physical harm * * * caused to the ultimate user or consumer, or to his property'. The evidence simply shows that the product was ineffective. The product was applied but the weeds continued to grow. We think the proper rule was stated in the recent case of Thermal Supply of Texas, Inc., v. Asel, 468 S.W.2d 927 (Tex.Civ.App.1971, no writ) where the Court said:
'In the better reasoned cases the doctrines of strict liability in tort has not been extended to situations involving economic loss only, but instead those cases apply the principles of the law of sales, in which privity of contract is required. Melody Home Manufacturing Company v. Morrison, 455 S.W.2d 825 (Tex.Civ.App., 1970, no writ), John Deere Company of Kansas City v. Tenberg, 445 S.W.2d 40 (Tex.Civ.App., 1969, no writ), concurring opinion by Associate Justice Quentin Keith, Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965), Price v. Gatlin, 241 Or. 315, 405 P.2d 502 (1965), 44 Tex.Law Rev. 578; contra Santor v. A & M...
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