F. W. Woolworth Co. v. Garza

• Decision Date: 24 March 1965
• Docket Number: No. 14367,14367
• Citation: 390 S.W.2d 90
• Parties: F. W. WOOLWORTH COMPANY, Appellant, v. Tomas GARZA, Individually and as Next Friend of Maria Albeza Garza, a Minor, Appellee.
• Court: Texas Court of Appeals

Page 90

390 S.W.2d 90

F. W. WOOLWORTH COMPANY, Appellant, v. Tomas GARZA, Individually and as Next Friend of Maria Albeza

Garza, a Minor, Appellee.

No. 14367.

Court of Civil Appeals of Texas, San Antonio.

March 24, 1965.

Rehearing Denied May 12, 1965.

Ewers, Toothaker, Ewers, Byfield & Abbott, McAllen, for appellant.

Philip A. Kazen, John Noyola, Laredo, for appellee.

BARROW, Justice.

This is a products liability case. Judgment was rendered upon a jury verdict whereby appellee, Maria Albeza Garza, a minor, recovered the sum of $1,325.00 and her father, Tomas Garza, recovered medical expenses in the sum of $143.80, for damages allegedly sustained as a result of the minor plaintiff's eating a hamburger which was unfit for human consumption when served at appellant's lunch counter in Laredo, Texas. ¹

It is well-settled law in Texas that parties who sell food or drink intended for human consumption may be held liable, upon an implied warranty, for damages caused to a person who eats or drinks the same, if such food or drink is unfit for human consumption. Decker & Sons v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479; Campbell soup Co. v. Ryan, Tex.Civ.App., 328 S.W.2d 821; no wr.hist.; Sweeney v. Cain, Tex.Civ.App., 243 S.W.2d 874, no wr. hist.

Appellant urges that there is no evidence, or, in the alternative, insufficient evidence, to support the jury's finding that the hamburger eaten by Maria Garza was unfit for human consumption. Under these points, appellant asserts that the only evidence in support of this finding is that Miss Maria Garza became violently ill shortly after eating a hamburger and drinking a soda at appellant's lunch counter.

In determining the 'no evidence' point we are required to view the record in the light most favorably in support of the jury verdict, to disregard all evidence adverse to the findings of the jury, and consider only the evidence favorable to such findings, indulging every legitimate conclusion which tends to uphold the same. On the other hand, appellant's alternative point requires this Court to consider all the evidence in the record, including that which is contrary to the verdict. Fisher Const. Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126; Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas Law Review 361.

An examination of the record in the light required under the 'no evidence' test, shows evidence in addition to the undisputed fact that shortly after eating at appellant's lunch counter Maria sustained a severe anaphylactic reaction which was defined by Dr. Morales as a very acute allergic reaction.

On March 9, 1963 Maria, who was fifteen years old, went from her home in San Ygnacio, Texas, with a friend, Lilia Garcia, and her friend's mother, Mrs. Alicia Garcia, to Laredo, Mexico, where Mrs. Garcia had a tooth pulled. This took nearly three hours, and during that time the two girls waited in the car, with the exception of one look in the dentist's office. After Mrs. Garcia's tooth was publled, they went to Laredo, Texas, and parked the car about six blocks from appellant's department store. Mrs. Garcia remained in the car while the two girls went to appellant's store to eat lunch. They sat at the lunch counter and each ate a hamburger and drank a soda. On their return walk to the car, Maria started to feel very sick in her stomach and broke out in a rash. Her condition was such that on reaching the car Mrs. Garcia took her immediately to Dr. Morales' office.

Dr. Morales testified that when Maria arrived she fainted, her face and body were swollen and had red spots over them. She had no pulse, no blood pressure and was turning blue. He gave her a shot of adrenalin, as he believed she was dying. She was subsequently transferred to a hospital and stayed there three days. Dr. Morales testified that food poisoning can cause an allergic reaction such as suffered by Maria and that a severe reaction like she had would come soon after eating. He testified on redirect examination as follows:

'Q But from a medical certainty and in your opinion as a doctor it (this allergic reaction) was caused by harmful bacteria in the hamburger, that was your opinion at the time?

'A In my opinion after gathering all the data that I possibly could, it was food poisoning but that does not mean it was 100% sure.

'Q We are not asking for that, I don't think anybody is entitled to that kind of an opinion. All that we are entitled to is a reasonable certainty from a medical standpoint and your opinion as a doctor, and that is your reasonable opinion as a doctor, that it was food poisoning.

'A Yes.'

There was testimony from Maria and her parents, that although she had eaten hamburgers before and did so again after this incident, she had never had a reaction from same, and in fact they denied any prior illness. All she had eaten that day, prior to this incident, was a piece of white bread eaten by Maria was unfit for human consumption

It is our opinion that this is evidence, more than a scintilla, that the hamburger eaten by Maria was unfit for human consuption at the time it was sold to her by appellant. Appellant's first point is overruled.

Appellant's second point presents considerably more difficulty. Under the undisputed evidence, Maria had a servere allergic reaction. The question presented is whether there is sufficient evidence that it was caused by an unwholesome hamburger. Dr. Morales testified that there are many causes of an allergic reaction other than food poisoning. He admitted that a food product could cause an allergic reaction although it was wholesome and did not have any harmful bacteria in it. Further, that Maria did not have some of the usual symptoms of food poisoning, such as nausea and diarrhea. He testified it usually takes from three to four hours for the bacteria to result in food poisoning.

In the final analysis, his diagnosis was based on Maria's history of having taken no drugs and having eaten only the hamburger since the slice of white bread for breakfast. Although this was a typical novocain reaction, Dr. Morales testified that it was very unlikely Maria could have breathed enough from being in the car with Mrs. Garcia.

There is no evidence that the meat in the hamburger was contaminated or unwholesome, and, to the contrary, an analysis by the State Health Department of a sample of meat used by appellant that day showed: 'No significant organisms isolated.' Cf. Decker & Sons v. Capps, supra; Griggs Canning Co. v. Josey, 139 Tex. 623, 164 S.W.2d 835, 142 A.L.R. 1424. There is no evidence of any foreign or deleterious substance in the hamburger. Cf. Sweeney v. Cain, supra. The hamburger had no unusual odor, taste or appearance, Cf. China Doll Restaurant, Inc. v. MacDonald, ,D.C.Mun. App., 180 A.2d 503; Johnson v. Kanvos, 296 Mass. 373, 6 N.E.2d 434. There were no laboratory tests made of Maria's vomit. The nature of her illness was not such that it could be traced to any particular cause or to a particular type of food. Cf. Nelson v. West Coast Dairy Co., 5 Wash.2d 284, 105 P.2d 76, 130 A.L.R. 606; Hamilton v. Madison...