Jax Beer Co. v. Schaeffer

• Decision Date: 01 April 1943
• Docket Number: No. 4274.,4274.
• Citation: 173 S.W.2d 285
• Parties: JAX BEER CO., Inc., v. SCHAEFFER.
• Court: Texas Court of Appeals

Page 285

173 S.W.2d 285

JAX BEER CO., Inc., v. SCHAEFFER.

No. 4274.

Court of Civil Appeals of Texas. El Paso, Texas.

April 1, 1943.

Rehearing Denied April 22, 1943.

Appeal from District Court, Dallas County; Paine L. Bush, Judge.

Action by L. A. Schaeffer against the Jax Beer Company, Inc., for personal injuries caused by the explosion of a bottle of beer sold to plaintiff's employer by defendant. Judgment for plaintiff and defendant appeals.

Reversed and rendered.

W. B. Handley, of Dallas, for appellant.

J. Manuel Hoppenstein, and Leake, Henry, Young & Golden, all of Dallas, for appellee.

PRICE, Chief Justice.

This is an appeal from a judgment of one of the District Courts exercising jurisdiction in Dallas County. Plaintiff, L. A. Schaeffer, sued defendant, Jax Beer Company, Inc., to recover damages for personal injuries. The trial was before the court with a jury, submission on special issues. On the verdict, judgment was rendered in favor of plaintiff in the sum of $3,000. Jax Beer Company, Inc. appeals.

The parties will be herein designated as they were in the trial court.

Plaintiff pleaded that he was employed as a waiter in a retail food establishment, where beer was also sold; that while engaged in the course of his employment putting bottled beer in a cooling container, one of the bottles exploded inflicting serious bodily injury upon him. The brand of the bottled beer so exploding was Jax. This beer had been sold to his employer by defendant, who was a wholesaler of that brand of beer. A defective condition of the bottle was alleged, negligence of the defendant in connection therewith, coupled with appropriate allegations as to proximate cause and damage.

Paragraph six of plaintiff's trial petition we reproduce: "6. That the bottle in question was the property of the defendant and that in selling the Jax Beer to the retailer where plaintiff was employed, retained title to said bottle, obtaining a deposit only from the retailer and that the said defendant, in putting on the market the said Jax Beer in the bottle in question by selling the same to the retailer to be handled by employees, and particularly this plaintiff, implied a warranty not only to the retailer but to the employees of the retailer that the bottle was in good condition, not defective and not subject to defects that would permit the same to explode and that on the date above alleged the said bottle of the defendant was actually not free from defects but was defective, in that one side was thick and the other thin, and that such bottle in such condition, containing the fermented malt beverage known as Jax Beer, was dangerous and injurious to the plaintiff, and plaintiff would show that as a direct result of the breach of said implied warranty that the bottle was not free from defects and that he sustained the physical injuries, pain, suffering and damages hereinafter alleged and set forth."

Defendant answered by general denial and sundry pleas of contributory negligence.

The verdict found that the beer bottle exploded as alleged, that the bottle was defective at the time it was sold to plaintiff's employer; acquitted defendant of all grounds of negligence submitted; found that the beer in the bottle at the time it was sold was not too highly fermented.

Special Issue No. 10, and the jury's finding thereon were as follows: "Do you find from a preponderance of the evidence that in selling to plaintiff's employer the bottle of beer involved herein the plaintiff made an implied warranty, as that term is herein defined, to plaintiff's employer and to plaintiff, that the bottle in which said beer was contained was in good condition, not defective and not subject to defects that would permit the same to explode?"

Answer: "Yes."

Defendant was not the manufacturer of the beer but had bought same from a brewing company engaged in business in New Orleans.

Defendant, after the return of the verdict and its acceptance by the court, filed motion for judgment, assailing the finding of the jury as to Special Issue No. 10. Due notice of the hearing was given to plaintiff. The court denied defendant's motion, and entered judgment for plaintiff on the verdict. Defendant in due time filed motion for new trial, and same was overruled by the court.

Defendant urges six points of error, all asserting that the judgment should have been rendered by the court in its favor instead of plaintiff's.

This judgment is based alone on the finding of an implied warranty on the part of the defendant, a breach thereof, and damage resulting.

That there is an implied warranty to the consumer on the part of the manufacturer or processor of food or beverage sold to a dealer for sale and sold by the dealer to the consumer, that such goods are fit for human consumption, is now authoritatively established. Jacob E. Decker & Sons, Inc., v. Capps, 139 Tex. 609, 164 S.W. 2d 828, 142 A.L.R. 1479.

That such implied warranty exists in favor of the consumer as against the retailer, is likewise authoritatively established. Walker v. Great Atlantic & Pacific Tea Co., 131 Tex. 57, 112 S.W.2d 170; Griggs Canning Co. et al. v. Josey, 139 Tex. 623, 164...