Green Light Co., Inc. v. Moore

• Decision Date: 20 September 1972
• Docket Number: No. 667,667
• Citation: 485 S.W.2d 360
• Parties: GREEN LIGHT COMPANY, INC., et al., Appellants, v. Kyle Elizabeth MOORE et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 360

485 S.W.2d 360

GREEN LIGHT COMPANY, INC., et al., Appellants, v. Kyle Elizabeth MOORE et al., Appellees.

No. 667.

Court of Civil Appeals of Texas Houston (14th Dist.).

Sept. 20, 1972.

Ben Ramsey, Ramsey & Murray, Vincent Rehmet, Barrow, Bland, Rehmet & Lee, Houston, for appellants.

Alfred H. Ebert, Jr., Fred Knapp, Jr., James W. Dilworth, Andrews, Kurth, Campbell & Jones, Duncan Neblett, Houston, for appellees.

TUNKS, Chief Justice.

This is an appeal from a judgment overruling the defendants' pleas of privilege in a products liability case.

The principal plaintiff is Kyle Elizabeth Moore, a little girl who, on March 18, 1966, the date of the occurrence of the tragic event upon which this case is based, was two years old. Kyle's mother and father, Preston Moore, Jr., and Betty Kyle Moore are other plaintiffs, the father also suing in the capacity as Kyle's next friend. Kyle also maintains the suit through her court appointed guardian ad litem, Duncan Neblett. The defendants are Green Light Company, Inc. and Green Light Company of East Texas, Inc., distributors of an insecticide bearing the trade name 'Green Light Systemic.' It is alleged that Kyle sustained injuries as a result of the intake, either by mouth or by absorption through the skin, of such insecticide so distributed by the defendants. The plaintiffs' petition alleged both negligence and strict liability as grounds for recovery. The suit was filed in the district court in Harris County. The defendants, Texas corporations whose principal places of business are in Bexar County, filed pleas of privilege. The plaintiffs' controverting affidavit alleged exceptions to the defendants' privilege to be sued in Bexar County under Vernon's Tex.Rev.Civ.Stat.Ann., art. 1995, secs. 9a and 23. After a trial before the court, without a jury, the pleas of privilege were overruled. The defendants have duly appealed.

Appellants' original brief presents two points of error. The first is based upon the contention that 'appellees failed to plead and prove a cause of action for 'negligence' against appellants under Subdivision 9a of Article 1995 V.A.T.S., on the venue hearing.' The second point uses comparable language as to Subdivision 23 of the venue statute. The language of neither point designates any specific element or elements of the causes of action as to which the pleading or proof is said to be wanting. However, in their statement, argument and authorities under the two points appellants do identify the part of the plaintiffs' proof as to which their challenge is directed. They contend that there is no proof of the 'cause in fact' element of the two causes of action pleaded by plaintiffs. Their contention is, as stated in their original brief, that 'there is . . . no evidence connecting the illness (of Kyle) with a product distributed by these defendants.' At no place, either by specific point of error or by statement, argument and authorities, do appellants, in their original brief challenge the proof of the other elements of plaintiffs' pleaded causes of action and exceptions to the venue statute. This opinion will, therefore, confine itself primarily to an examination of the evidentiary support for the finding of a connection between Kyle's illness and the product distributed by appellants.

The active ingredient of the Green Light Systemic, distributed by the defendants-appellants is called Di-Syston. It is an organic phosphate poison. Organic phosphates were the basis of the nerve gases developed as a potential military weapon before and during World War II. Subsequent to that time organic phosphates, in various forms, have been widely used as insecticides.

Di-Syston is a very highly toxic material. The degree of its toxicity can be demonstrated by comparing it to Malathion, another organic phosphate insecticide, which is rather well known to home owners. Di-Syston is more than 400 times as toxic as Malathion. Di-Syston is readily absorbed through the skin and its comparative toxicity when so absorbed is equally as great.

The product which these defendants marketed as Green Light Systemic was furnished to them in bulk in 50 gallon--450 pound containers. Green Light Company, Inc. repackaged the product into one pound labeled containers and distributed it in Harris County and a surrounding area through its affiliate, Green Light Company of East Texas, Inc. The product was formulated by impregnating specially treated clay granules with Di-Syston. The Di-Syston content of the product so formulated and distributed was 2%.

On March 18, 1966, the day Kyle Elizabeth Moore became ill, the Moore family lived at 1026 Briar Ridge in Houston, Harris County, Texas. The house faced east. On the adjacent lots, to the north and to the south, were occupied residences. The house to the south of the Moore residence was 1030 Briar Ridge and that to the north was 1022 Briar Ridge. In the first week of March 1966 the neighbor at 1030 Briar Ridge bought from a Houston nursery a can of Green Light Systemic and applied it to a shrub growing on that side of his house which was toward the Moore residence. The insecticide was applied according to the directions on the can. It was sprinkled on the ground around the roots of the plant, worked into the soil and then watered. This treatment apparently was not effective. About March 15th the neighbor sprayed the plant with Malathion. A mixture of about six gallons of water and six tablespoonsful of Malathion were sprayed on the plant.

In about August of 1965 the next door neighbor to the north of the Moores bought a can of Green Light Systemic from a nursery in Houston. Upon acquiring it he applied it to 12 copper plants he had in pots sitting on a patio at the front of his house. Later in 1965 he applied the insecticide to the potted copper plants for the second time. In January of 1966 he made the third application of the insecticide to the potted plants. At the time of the second and third applications the plants had been moved into a greenhouse in the neighbor's back yard where they still remained on March 18 of 1966. The plants were in 12 inch clay pots which had holes in the bottom so that excess water could drain out. The floor of the greenhouse on which they sat was dirt. The applications made by this neighbor were, too, in accord with the directions on the container--pouring the granules on the dirt in which the plants were, then watered it so that it would soak into the soil.

Witnesses who saw Kyle in the afternoon of March 18th, up until about 5:00 o'clock, testified that she gave no indication that anything was wrong with her. At about 5:00 o'clock she was seen going into the back yard of the neighbor to the north of her home. She remained in the back yard unattended and unobserved for about five minutes when an older child was sent for her and brought her back to the front yard. Both the back yard and the inside of the greenhouse were apparently accessible to her.

At about 5:40 Mrs. Moore brought Kyle into the house and cleaned her up. Her hands and face were dirty. Mrs. Moore noticed that she was flushed. At 5:50 Mrs. Moore took Kyle with her in the car to pick up a baby-sitter. As they were returning home Mrs. Moore noticed...