Helicoid Gage Division of Am. Chain & Cable Co. v. Howell

• Decision Date: 26 June 1974
• Docket Number: No. 843,843
• Citation: 511 S.W.2d 573
• Parties: HELICOID GAGE DIVISION OF AMERICAN CHAIN AND CABLE COMPANY, Appellant, v. J. A. HOWELL et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 573

511 S.W.2d 573

HELICOID GAGE DIVISION OF AMERICAN CHAIN AND CABLE COMPANY, Appellant, v. J. A. HOWELL et al., Appellees.

No. 843.

Court of Civil Appeals of Texas,

Houston (14th Dist.)

June 26, 1974.

Rehearing Denied July 17, 1974.

A. J. Watkins, John C. Marshall, III, Watkins & Hamilton, Houston, for appellant.

Jim M. Perdue Miller, Gann, Perdue & Draughn, Hal S. Hudson, Lucas & Hudson, Wayne Fisher, Fisher, Roch, Blackstock & McLendon, Michael T. Johnson, Frank J. Knapp, Jr., Michael O. Connelly, Butler, Binion, Rice, Cook & Knapp, Houston, for appellees.

CURTISS BROWN, Justice.

This is a products liability case.

Appellee J. A. Howell brought suit against appellant Helicoid Gage Division of American Chain & Cable Company (Helicoid) and the Houston Supply Company for personal injuries which he received when a gage manufactured by Helicoid and supplied by Houston Supply burst while in use. A piece of the lens of the gage was thrown into Howell's right eye by the force of the explosion, resulting eventually in the loss of the eye. Houston Supply Company was granted an instructed verdict at the close of the evidence. This action is not complained of on appeal by either Howell or Helicoid. After submission of the case to the jury on special issues, the trial court entered judgment on the verdict that Howell recover from Helicoid $246,302.33.

Howell was an employee of Loomis Hydraulic Testing Service, a company which specializes in the pressure testing of joints in oil field tubing. Howell was a member of a crew testing a new unit on which the gage in question was being utilized. The testing unit worked as follows: a pressure medium would be pumped into a sealed-off section of pipe until it reached a desired pressure; then the gage reading would indicate whether there were any leaks. During the test in question, Loomis was using a pressure medium of water mixed with soluble oil. Howell's job had been to hold down a hose in a fifty-five gallon drum to supply the pressure medium to the pump. Several times during the test this hose vibrated loose, came up and took in air. In addition, this was a new, experimental unit, and it was discovered during the test that the pump utilized was not sufficient and that it was taking in air itself. When the gage failed, the entrapped air caused a violent explosion, and a stream of water burst out through the front of the gage, shattering the lucite lens, and throwing a piece into Howell's eye. Although the evidence is conflicting, there is ample proof that the gage was new and exploded after only about thirty minutes of use. It is undisputed that the pressure at the time of the injury was substantially less than the maximum 20,000 pounds per square inch of pressure which the gage was designed to measure.

In recent years the doctrine of products liability has become well accepted in Texas, and our Supreme Court has expressed approval of the doctrine as expressed in Restatement (Second) of Torts § 402A (1965). McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup.1967); Shamrock Fuel and Oil Sales Co. v. Tunks, 416 S.W.2d 779 (Tex.Sup.1967). Section 402A of the Restatement provides 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.

A product may be rendered defective through a defect in material or manufacture, a defect in design, or the failure to warn properly of a dangerous product characteristic. McKisson v. Sales Affiliates, Inc., Supra; Pizza Inn, Inc. v. Tiffany, 454 S.W.2d 420 (Tex.Civ.App.-Waco 1970, no writ); Noel, Products Defective Because of Inadequate Directions or Warnings,23 SW.L.J. 256 (1969). To recover in a products liability case, it is necessary for the plaintiff to show that the product was defective in one of these ways, that the defect made the product unreasonably dangerous, and that the defect was a producing cause of his injuries. No showing of proximate causation is required, and traditional contributory negligence does not bar recovery. Shamrock Fuel & Oil Sales Co. v. Tunks, Supra. Defenses in a products liability case include misuse of the product and voluntary and unreasonable use in the face of a known danger, also known as assumption of risk. McDevitt v. Standard Oil Company of Texas, 391 F.2d 364 (5th Cir. 1968); Restatement (Second) of Torts § 402A comment n (1965).

In response to special issues, the jury made a number of fact findings. We have reviewed these fact findings under the proper tests for no evidence, insufficient evidence, and great weight points, and find they are all amply supported by the evidence. See Calvert, 'No Evidence' and 'Insufficient Evidence' Points of Error, 38 Texas L.Rev. 361 (1960). The jury found that use of the gage with water was a reasonably foreseeable use, that it exposed the users to an unreasonable risk of harm, that Helicoid failed to warn both purchasers and users of the danger of the use with water, that this failure to warn also exposed users to an unreasonable risk of harm, and that this failure was a producing cause of Howell's injuries. The jury found that Helicoid's failure to equip the gage with a safety shield rendered it defective and that this failure was a producing cause of Howell's injuries. It found that the design of blow-out discs on the gage was defective and was a producing cause of his injuries. It found that the lucite lens used on the gage was not fit to prevent injury as the result of failure or explosion, that this failure exposed users to an unreasonable risk of harm, and that the failure was a producing cause of Howell's injuries.

In response to the defensive issues, the jury found that Loomis did not use the gage with salt water. It found that Loomis did use the gage with water but that such a use was not a misuse. It further found that Loomis used the gage in such a way as to allow air to become entrapped in the pressure medium, but also found that this was not a misuse. In response to several other issues, the jury found that Loomis was not negligent in its selection or use of the gage without additional safety features and that this was not a misuse. Finally, the jury awarded the following damages: past physical pain and mental anguish, $70,000; future physical pain and mental anguish, $75,000; past loss of earnings $5,000; future loss of earning capacity, $100,000. This award was adjusted in the judgment by the addition of stipulated medical expenses and the subtraction of recovery by the intervenor insurance company which had paid Howell's workmen's compensation claim.

The evidence establishes that Helicoid offered two alternatives to a glass lens. One was a lucite lens; the other, a shatterproof glass lens. According to testimony by experts for both parties, a lucite lens is more resistant to breakage from a sudden blow than regular glass, but, when it does break, it shatters much in the same manner as glass. On the other hand, shatterproof glass crumbles into small fragments without jagged edges, thereby greatly reducing the possibility of injury. The Helicoid catalogue offered the lucite lens as a safety option for gages to be used with high pressure service, and it did not differentiate its properties...