Hebert v. Loveless

• Decision Date: 18 November 1971
• Docket Number: No. 7268,7268
• Citation: 474 S.W.2d 732
• Parties: Leo HEBERT, dba Leo & Willie's, et al., Appellants, v. Victor E. LOVELESS, Conrad Webb et al., Appellees.
• Court: Texas Court of Appeals

Page 732

474 S.W.2d 732

Leo HEBERT, dba Leo & Willie's, et al., Appellants, v. Victor E. LOVELESS, Conrad Webb et al., Appellees.

No. 7268.

Court of Civil Appeals of Texas,

Beaumont.

Nov. 18, 1971.

Orgain, Bell & Tucker, Rienstra, Rienstra & Dowell, Beaumont, for appellants.

Frank Lamson, Black & Black, Port Arthur, for appellees.

KEITH, Justice.

The defendants below appeal from an unfavorable judgment in a suit arising out of food poisoning. Plaintiffs were patrons in a restaurant owned by Hebert and all became ill soon after consuming food, ice, or beverages in the restaurant. The ice was manufactured by the defendant ice company while the food and beverage was prepared by the restaurant owner. Suit was brought under the theory of strict liability and breach of the implied warranty that the food, ice and beverages served to plaintiffs was fit for human consumption and contained no deleterious or harmful substances.

Based upon favorable findings, the patrons recovered judgment against the restaurant and the ice manufacturer, jointly and severally, for their damages fixed by the jury. The restaurant recovered judgment for lost profits and full indemnity for what it might be called upon to pay to the patrons. Restaurant's recovery was based upon findings that the ice was the sole producing cause of the patrons' damages and restaurant's loss of profits. Both defendants have appealed from the judgment entered based upon the jury verdict.

The defense of the restaurant was basically offensive in nature in that it sought to prove that the ice which had been supplied to it for use in the restaurant was impure and unwholesome. The ice was supplied in large canvas bags having a zinc-coated metal bottom. It was the restaurant's theory of the case that the operating practices of the ice company were such as permitted salt, brine and other contaminants to come in contact with this metal bottom of the bag dissolving the zinc coating which then mixed with the melted ice. This chemical solution, according to the restaurant's theory of the case, rendered the ice so furnished to it for service to its patrons unfit for human consumption.

The jury found that each of the three plaintiffs did consume 'food, ice or beverage which was unfit for human consumption'; that 'such food, ice or beverage was a producing cause of said persons' damages'; that each of the persons consumed ice which was unfit for human consumption; that the ice so consumed was the sole producing cause of said persons' damage; and, that the ice so consumed was a producing cause thereof. The jury also found that the ice was unfit for human consumption at the time it was delivered to the restaurant; that the condition of the ice at the time it was delivered to the restaurant was the sole producing cause of the restaurant's damage--the loss of profits.

The ice company has no evidence, insufficient evidence, and great weight and preponderance of the evidence points leveled at each of the findings summarized. Defensively, the restaurant has similar points directed at the findings upon which the patrons' judgment was based; and, affirmatively, seeks to support the findings adverse to the ice company--the sole producing cause issues as to the damages recovered by the patrons and the restaurant which also support its indemnification against the recovery of the patrons.

We review an unusually long record and in our effort to keep the opinion within manageable limits, the statement of the facts will be restricted severely. Many persons were served by the restaurant upon the date in question without any untoward incident. Shortly after six o'clock P.M., a number of patrons became ill while at the restaurant or shortly after leaving the premises. Each of the plaintiffs herein became ill and displayed substantially the same symptoms: nausea, vomiting, diarrhea, and in at least one instance, fever. A large number of patrons were similarly affected, the number being variously estimated as anywhere from eighteen to forty-seven.

Many witnesses testified and the general pattern of development of the case was to interrogate the patron as to what he ate and drank on the occasion and then interrogate him as to its effect upon him. Fifteen persons testified that each became ill after consuming food, ice, or beverages at the restaurant on the date in question. The record also shows that an indeterminate number of patrons who also consumed food, ice, or beverage in the restaurant on the same occasion did not become ill.

Before eight o'clock on the evening in question, two health department inspectors procured samples of many items of food, melted ice, detergent, insecticides, etc. from the restaurant which were taken to Houston for analysis upon the following day. These samples ¹ submitted for examination included most of the items of food consumed by the patrons and the other suspected sources of the contamination. No bacteriological contamination was found in any of the items of food, nor were there any traces of the detergents or insecticides found therein. The melted ice samples were found to contain zinc at the ratio of one-tenth of one part per million parts water. A sample of vomitus from one of the patrons revealed that zinc was present at the ratio of one-fourth of one part per million parts. The laboratory supervisor, a chemist with an advanced degree in microbiology, said that both 'chemical and microbiological examinations' were made of the food and 'there were no bacteriological or chemical agents that we could consider to be involving food poisoning, or associated with this food that would be involved with food poisoning.' As to the zinc found in the melted ice sample and in the vomitus, the witness said that the 'concentration was not such to cause food poisoning' and that even in the case of the vomitus, the additional concentration was not of a sufficient amount 'to cause any ill effects upon the body.'

Dr. Joe B. Nash, an assistant professor at the University of Texas Medical Branch in Galveston, qualified as an expert in toxicology, 'a sub-specialty of Pharmacology that relates to the injurious effect of chemicals on living species.' In answer to hypothetical questions he ruled out bacteriological poisoning since it 'requires an incubation time . . . to develop,' some infections requiring from two to six hours while others require even longer to develop. It was his opinion that the patrons were affected by a chemical poisoning. Having reviewed the deposition testimony of the laboratory supervisor, he was of the opinion that the patrons suffered from chemical poisoning brought about by a chemical reaction between brine and other agents upon the zinc-coated metal bottom of the bags used to deliver the ice to the restaurant. This zinc poisoning, under his theory of the case, was the cause of their illnesses. He readily admitted that the amount of zinc found in the laboratory analysis was insufficient to cause illness, but he attributed this to improper sampling of the ice when the samples were gathered by the Port Arthur Health Department inspectors upon the night in question. He readily admitted that the finding of one-tenth of one part zinc per million parts of water, as revealed by the laboratory test of the melted ice, was not an unusual finding, but a very common finding. He said that thirty to forty parts zinc per million parts water 'could be ingested without any symptomatology.'

Dr. Nash testified that the melting ice in the bag in which it was delivered could not absorb any zinc from the lining but his theory was 'that the people in the restaurant were given melted water from the bottom of the bag . . . or ice that had been contaminated with this water.'

The witness testified that brine and salt solutions found around the ice manufacturing plant presented the 'possibility of contamination' and 'I think it would be unsafe to use these bags with the zinc coated containers' without regularly cleaning the bags .

One physician who testified expressed the opinion that the cause of illness was 'something they had eaten or drunk' at the restaurant but he did not see any of the patrons immediately. From the history given to him, he diagnosed the condition as acute gastro enteritis. He told of repeated calls made to the county health officer in Port Arthur in an effort to learn the results of the laboratory tests and on July 15 (some twenty-five days after the occurrence) Dr. Shields said that the health officer 'stated that a definite diagnosis of zinc poisoning had been made by the State Health authorities.' ² This doctor was unable to determine the agent which caused the symptoms he found in his patients and did not know if it was bacterial or chemical in nature. This witness based his diagnosis of zinc poisoning upon what he learned from the county health officer, not from any examination of the patients or any laboratory analysis.

Another physician who treated one of the plaintiffs the day following the episode made the basis of this suit was of the opinion that the illness of his patient was 'caused by something he ate or drank at Leo & Willie's that night.' He also said that he had no idea whether the agent involved was 'chemical or bacterial.'

Without recounting the details, it is sufficient to say that counsel for the restaurant developed testimony which would support a finding that the containers in which the ice was delivered were not handled in the most sanitary manner and that there was more than a possibility of brine or salt solutions coming in contact with the metal bottoms of the bags. Likewise, the restaurant offered testimony which supported its theory that the ice served to the patrons was in substantially the same condition when served as when delivered to its place of business by the manufacturer.

Counsel for the restaurant, summarizing the evidence, states that 'there is evidence that 19 people got sick; of these 19, 17...