F. M. C. Corp. v. Burns

• Decision Date: 25 June 1969
• Docket Number: No. 14758,14758
• Citation: 444 S.W.2d 315
• Parties: F. M. C. CORPORATION, Appellant, v. Winfred BURNS and Hugh Rouw, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 315

444 S.W.2d 315

F. M. C. CORPORATION, Appellant, v. Winfred BURNS and Hugh Rouw, Appellee.

No. 14758.

Court of Civil Appeals of Texas San Antonio.

June 25, 1969.

Rehearing Denied Sept. 10, 1969.

Franklin D. Houser, House, Mercer, House & Brock, San Antonio, for appellant.

Mann, Castillon, Freed & Kazen, Nat B. King, Laredo, Urban Farrow, Carrizo Springs, for appellee.

KLINGEMAN, Justice.

This is a products liability case. Hugh Rouw, now deceased, and Winfred Burns, plaintiffs below, sued F.M.C. Corporation, defendant below, for damages allegedly resulting from the use of a wax product manufactured by defendant, in the processing of cucumbers from a farm operated by plaintiffs. Trial was to a jury who found that: defendant furnished to plaintiffs a waxing machine and wax product for use in the processing of cucumbers; the wax product so furnished was not reasonably fit for said use; plaintiffs' cucumbers were damaged as a result of using defendant's wax product; the use of such wax product was a proximate cause of the damages to the cucumbers; plaintiffs were damaged in the amount of $45,000.00. Judgment was rendered for plaintiffs in accordance with the jury verdict.

Defendant produces and manufacturers a wax product, sometimes referred to as 'Flavorseal,' which is used to deposit a light coat of wax to the outside of processed vegetables and fruits. There is testimony that the use of some type of wax product improves the appearance and salability of cucumbers and is necessary in order to get a good market price. In September of 1964, defendant furnished its wax product and a machine which applies the wax product to plaintiffs to wax and process a 90-acre crop of cucumbers located in Dimmit County. The machine and the wax were delivered to the shed where plaintiffs' cucumbers were to be processed by a representative of defendant with the wax product which was contained in barrels furnished by defendant. At that time the waxing machine was set up for operation by defendant's representative. Defendant was paid a down payment of $200.00 by plaintiffs in connection with such transaction and was to be paid an agreed amount for each carton or bushel of cucumbers processed with such wax product. There is evidence that plaintiffs' crop of cucumbers was an excellent one, and that such crop would average at least $1,000.00 an acre. Plaintiffs started harvesting the crop of cucumbers between October 15, 1964, and October 18, and a representative of defendant was present when the first batch of such cucumbers was processed with defendant's wax ans waxing machine. The first load of cucumbers processed, as well as four other loads thereafter processed with defendant's product, was sent out of state by truck and all of the cucumbers were refused at the point of destination by the purchaser. There is evidence that some of such cucumbers had sunken areas, including portions which were soft, translucent and leaky. Plaintiffs stopped using defendant's wax around November 6 or 7, 1964, at which time approximately 70% Of the cucumbers had been picked and the remaining 30% Were processed with another wax product and another machine, and none of these cucumbers were refused. There was evidence that cucumbers have to be picked at the right time, and a large number of cucumbers had to be picked and discarded during the time plaintiffs were using defendant's wax product and attempting to find out why their cucumbers were being rejected.

Most of the early cases involving products liability base liability on a so-called warranty theory, and as an obligation growing out of a contract. However, in the last few years there has evolved a recognition that the liability here imposed is a form of strict liability in tort. Keeton, Products Liability, Current Developments, 40 Tex. Law Review, 193; Keeton, Products Liability, Liability Without Fault, 41 Tex. Law Review, 855; Wade, Strict Tort Liability, 19 S.W. Law Journal 5. The rule imposing liability on sellers of products has been gradualistic and marked with caution in Texas. The early cases imposing such liability dealt with manufacturers of food products for human consumption. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479. However in 1967 the Supreme Court in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, committed the Court to the rule of strict liability expressed in Sec. 402A of American Law Institute's Restatement of the Law of Torts, 2d Ed. ¹ as applicable to all persons engaged in the business of selling who sell a product in a defective condition which renders it unreasonably dangerous to a user or consumer or to his property. Thereafter the Supreme Court in O. M. Franklin Serum Co. v. C. A. Hoover & Son, 418 S.W.2d 482, approved a holding of a Court of Civil Appeals, 410 S.W.2d 272 that a seller of a defective product is subject to strict liability for damages caused to the property of the ultimate consumer.

Defendant presents 124 points of error on this appeal. No attempt will be made in this opinion to discuss all of such points of error individually but they will be grouped as to their general area of complaints.

POINTS OF ERROR IN REGARD TO SPECIAL ISSUES SUBMITTED BY THE COURT

Defendant by over forty points of error complains of Special Issues Nos. 2, 3 and 4, where inquiry was made as to whether the wax product furnished by defendant was not reasonably fit for use on plaintiffs' cucumbers, whether plaintiffs' cucumbers were damaged as a result of using defendant's wax product in the processing of their cucumbers, and whether use of such wax product was a proximate cause of damages sustained by plaintiffs. ² Defendant asserts that there is no evidence and insufficient evidence to support the submission of such issues, the jury's answers thereto are supported by no evidence are are against the great weight and preponderance of the evidence, that such issues will not support a judgment for plaintiffs, that they are not ultimate issues, that some of the issues constitute a double submission of two separate involved theories, and that such issues are global issues or general issues.

Defendant's main complaints are based on its contention that no defect has been shown in defendant's product and that it is undisputed that the product was not used as intended, and that there was an improper application of such product.

There is ample evidence that the wax product furnished by defendant to plaintiffs was in a defective condition at the time it was delivered to plaintiffs. Defendant's chemist testified that his wax product in its proper formulation consisted of 7% Wax and 93% Volatile hydrocarbons; that in its true solution it has no color whatsoever and is water clear. There is testimony by plaintiffs' witnesses that the wax product sold and delivered to them and used by them on plaintiffs' cucumbers had an amber color. A sample of such wax product used by plaintiffs was introduced into evidence as Plaintiffs' Exhibit No. 3, which was amber colored and there is testimony that a jar of such wax product was sent to a chemist for Texas Testing Laboratories in November of 1964, within a very short period of time after plaintiffs' cucumbers had been processed with such wax product. The chemist testified that a qualitative and quantitative analysis of such wax product was made by him at such time and that it showed that such wax product contained 10% Wax and 90% Hydrocarbons, and that the color and odor of the wax product sent to him in November, 1964, was similiar to Plaintiffs' Exhibit No. 3. Defendant's chemist stated that the liquid which was introduced as Plaintiffs' Exhibit No. 3, and shown him, was not like defendant's wax product should be in its proper form, and that if the wax product delivered to plaintiffs in 1964 resembled Plaintiffs' Exhibit No. 3 it could be an improper mixture. Defendant's chemist testified that an excess of wax deposited on cucumbers could cause damage to them.

There is also ample evidence that plaintiffs' cucumbers were damaged after being processed with defendant's wax product. It is defendant's contention that if any damage was caused to plaintiffs' cucumbers by its wax products it was through improper application, not because of any defect in the wax. Defendant's chemist testified that its wax product was made up of volatile hydrocarbons and wax which remains in solution when mixed together, and that when properly applied through defendant's machine the hydrocarbons flash out and evaporate when sprayed leaving the residual wax molecules to be deposited on the cucumbers being waxed; that the machine used must have a proper sized orifice or nozzle, and that an over-application of the wax product could cause damage to the cucumbers, both through an excess of wax deposited on the cucumbers and by the deposit of some of the hydrocarbons on the cucumbers.

There is evidence that at one time in the processing of plaintiffs' cucumbers, plaintiffs' employee bored out the nozzles to a certain extent. Plaintiffs' employee testified that in doing so he used a drill about the size of a pin. There is further testimony that when defendant's representative requested to see what was causing damage to the cucumbers, at the time he arrived, on or about October 25th or 26th, the nozzles had been bored out to some extent and the pressure on the machine was higher than it should have been. However, there is also evidence that a portion of the cucumbers which were damaged and were refused, were processed with the nozzles exactly as set up by defendant's representative, and that defendant's representative was present when the first bunch of cucumbers was processed, which cucumbers were among those refused. Such representative also testified that on the occasion of such visit, on October 25th or 26th, he removed the bored out nozzles and substituted proper nozzles and properly adjusted the machine as to pressure...