Jacobs v. Technical Chemical Co.
| Citation | 472 S.W.2d 191 |
| Decision Date | 04 August 1971 |
| Docket Number | No. 506,506 |
| Parties | W. T. JACOBS, Appellant, v. TECHNICAL CHEMICAL COMPANY et al., Appellees. (14th Dist.) |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
W. James Kronzer, John B. Murphrey, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellant.
Thomas S. Terrell, Sewell, Junell & Riggs, Vincent W. Rehmet, Barrow, Bland & Rehmet, Houston, for appellees.
This is a products liability case. The appellant, W. T. Jacobs, plaintiff in the trial court, sustained personal injuries when a can of refrigerant, Freon, exploded while he was trying to put the contents in his automobile air conditioner. The defendants in the trial court were Technical Chemical Company, the packager of the product, and Joe Bain, the dealer from whom appellant bought it. They are appellees here.
The plaintiff's petition alleged a cause of action based on strict liability under Section 402A, Restatements of Torts, 2d. In this pleading he alleged that in using the product he was exposed to an unreasonable risk of harm because the metal container was defective, it was charged with too high pressure, and he was not warned of the danger involved in its use. He also alleged causes of action based on negligence and on express or implied warranty.
The defendant, Technical Chemical Company, alleged as defenses, in addition to a general denial, misuse of the product, unavoidable accident, contributory negligence, assumed risk and Volenti non fit injuria. The defendant, Joe Bain, in addition to alleging defenses to the plaintiff's suit, filed a cross action against Technical Chemical Company, seeking indemnity.
The defendant, Technical Chemical Company, was engaged in the business of packaging a refrigerant, Freon, under the trade name, Johnsen's Freeze 12. The packaging was done with the purpose of distributing and selling the product for use in charging automobile air conditioning units. The defendant, Joe Bain, was a dealer who bought the can in question from Technical Chemical Company and in turn, sold it to plaintiff. The product was packaged in metal cans about 5 high and with a diameter of about 2 3/4ths . At the top the can tapered down to a top about 1 in diameter and being somewhat similar to the top of a beverage bottle except that it did not have a removable cap. In using the product to charge an automobile air conditioner a valve was clamped to the top of the can in such a manner as to puncture the top and permit the refrigerant, which was packaged under pressure of about 75 p § i, to flow through a hose into the air conditioning unit. The evidence showed that there are two openings into that portion of the air conditioning unit in which the refrigerant is contained. One of these openings is into that portion of the unit where the unit's compressor creates pressure. The other opening is into a portion of the unit on the other side of the compressor and on which side there is no pressure. The side where the pressure is created by the compressor is said to be on the 'high' side of the compressor and the other side on the 'low' side. In charging the unit the hose leading from the can should be attached to the opening leading into the 'low' side, with the compressor running so that the refrigerant flowing from the can will be pumped into the high side, thus permitting the can's contents to flow into an enclosure where there is a low pressure. One not experienced in automotive mechanics may not be able to tell the difference between the opening into the high side and that into the low side. On the occasion which is the subject of this suit the plaintiff connected the can to the 'high' side of the compressor. The running compressor, instead of drawing pressure from the can, pumped more pressure into it until it exploded inflicting the personal injuries for which the plaintiff sued.
The plaintiff is a barber. While he has done minor repair work on cars owned by him, he is not an experienced mechanic.
The can which exploded had printed instructions for its use, but those instructions made no reference to the high and low side of the air conditioning unit. It also had printed on it, 'contents under pressure', and 'Do not permit can temperature to exceed 125 F.' There were no words of warning or caution as to the danger of an explosion if the can is not correctly connected. The theory upon which the plaintiff tried his case and submitted it to the jury was that the failure to warn of the danger resulting from connecting to the high side of the compressor exposed him to an unreasonable risk of harm. The first three issues submitted to the jury, and the answers thereto, were as follows:
SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that defendant, Technical Chemical Company's failure to warn the plaintiff, W. T. Jacobs, on July 11, 1966 of the danger of connecting the Freon can to the high side of the compressor, exposed such user to an unreasonable risk of harm?
By the term 'unreasonable risk of harm,' as used in the above and foregoing Special Issue, is meant that the article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary user who purchases it, with the ordinary knowledge common to the community as to its characteristics.
Answer: 'We do' or 'We do not.'
Answered 'We do'.
If you have answered Special Issue No. 1 'We do', and only in that event, then answer:
SPECIAL ISSUE NO. 2
Do you find from a preponderance of the evidence that on or before July 11, 1966, it was reasonably foreseeable by the defendant, Technical Chemical Company, by and through its principal agents that users of its Johnsen's Freon might attempt to charge air conditioners by connecting the Freon to the high side of a compressor?
Answer: 'We do' or 'We do not'.
Answered 'We do'.
If you have answered Special Issue No. 1 'We do', and only in that event, then answer
Do you find from a preponderance of the evidence that such failure to warn was a producing cause of the injuries and damages, if any, sustained by the plaintiff, W. T. Jacobs, on July 11, 1966?
In connection with the foregoing Special Issue you are instructed that the term 'producing cause,' as used in this Charge, means an efficient, exciting or contributing cause, which, in a natural and continuous sequence, produced injuries or damages complained of, if any.
Answer: 'We do' or 'We do not'.
Answered 'We do not.'
Other issues submitted related to the various defenses pleaded by the defendants, misuse, contributory negligence, Volenti and assumption of risk. The jury failed to find facts establishing those defenses. The jury found plaintiff's damages in the amount of $24,000.
After the verdict the plaintiff moved to disregard the jury's answer to special issue Number 3 and to render judgment for him on the remainder of the verdict. Such motion was overruled and the court rendered judgment for defendants.
The contention of the plaintiff, appellant is found in the following language from his brief:
'If the injury arises out of the risk caused by the failure to give a warning, the causation question is complete, and it is unnecessary for the injured party to establish that he would have read and heeded the warning had it been given.'
'The case is made upon proof of the inadequacy of the warning, that it presented an unreasonable risk of harm, and that the injury directly resulted from the very risk involved.'
The defendants, appellees' position is that, to be entitled to judgment, the plaintiff had the burden of proving that The failure to warn was a producing cause and that he failed to discharge such burden because under the evidence the jury was not bound to believe that he would have observed such a warning if it had been on the can . Their characterization of the evidence is supported by the record . The following question and answer is from the plaintiff's testimony:
'Q. At the time the accident occurred, up until that time, had you read any of the words on the can?
A. No, sir. No sir, I hadn't. Hadn't even looked at the can.'
There was testimony by him that he had recharged air conditioners on numerous previous occasions.
The relevant language of Sec. 402A, Restatement of Torts 2d is:
'402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(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 * * *
'(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. * * *'
Among the comments following such Sec. is the statement:
Certain relevant facts were established here either by unchallenged jury findings or by uncontroverted evidence. First, there was danger in connecting the can to the high side of the compressor. Second, there was no warning of such danger. Third, failure to warn of such danger exposed the plaintiff to an unreasonable risk of harm in doing that which was foreseeable. Fourth, connecting the can to the high side of the compressor caused this accident. The question is: did the establishment of these facts entitle plaintiff to recover for his injuries under the rule of strict liability imposed by Sec. 402A? We answer that question in the affirmative. (That answer, of course, is subject to the defendants' establishment of available affirmative defenses which they failed to establish here.)
In McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup.--1967) the plaintiff sued the distributor of a permanent wave preparation for...
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...(1968); Green, The Causal Relation Issue In Negligence Law, 60 Mich. L.Rev. 543, 559-60 (1962); cf. Jacobs v. Technical Chemical Co., 472 S.W.2d 191, 196-200 (Tex.Ct.Civ.App.1971); Haft v. Lone Palm Hotel, 3 Cal.3d 756, 768-69, 91 Cal.Rptr. 745, 752, 478 P.2d 465, 472 The general rule on in......
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