Magic Chef, Inc. v. Sibley, 15695

• Citation: 546 S.W.2d 851
• Decision Date: 12 January 1977
• Docket Number: No. 15695,15695
• Parties: MAGIC CHEF, INC., Appellant, v. Anita SIBLEY et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 851

546 S.W.2d 851

MAGIC CHEF, INC., Appellant, v. Anita SIBLEY et al., Appellees.

No. 15695.

Court of Civil Appeals of Texas,

San Antonio.

Jan. 12, 1977.

Rehearing Denied Feb. 9, 1977.

C. G. House, House, Mercer, House, Brock & Wilson, San Antonio, for appellant.

Bob Gibbins, Austin, for appellees.

BARROW, Chief Justice.

Appellant has perfected its appeal from a judgment entered on a jury verdict whereby appellee, Anita Sibley, individually and as next friend of her minor daughter, Sandra Jo Shifflett, recovered damages for injuries sustained by the minor as the result of a defectively designed range manufactured by appellant.

The jury found that the gas range, which was located in the apartment occupied by appellee's baby-sitter on February 9, 1967, was defectively designed at the time it was sold to the owner of the apartment complex and that this defective design was a producing cause of the occurrence in question. The five-year-old girl sustained serious and painful burns which resulted in permanent disfigurement. Substantial damages were found by the jury and judgment was entered that appellee recover the total of such amounts .

Appellant's brief contains fifty-three points of error. However, twenty-seven of these points of error have not been briefed by appellant and therefore are waived. Rule 418 ¹; Appellate Procedure in Texas, § 12.4(6) (1964). The twenty-six points briefed by appellant will be considered under seven propositions. 1. There is no evidence or insufficient evidence to support an affirmative finding that the range was defectively designed. 2. The trial court erred in admitting evidence relating to other incidents on this or similar ranges made by appellant. 3. The liability issue is improper in that inquiry is made as to the design of the range whereas all the evidence relates to the control valves on the burners. 4. The trial court erred in refusing to submit appellant's requested issues on misuse of the range by the minor. 5. The jury argument of appellee's attorney was improper. 6. The trial court erred in admitting hearsay evidence relating to mental anguish of the minor. 7. The trial court committed fundamental error in awarding damages for future medical expenses in an amount in excess of that sought by the pleadings. It should be noted that although substantial damages were awarded appellee, appellant has no point complaining of any award other than that for future medical expenses.

Prior to the incident in question, appellee and her three minor daughters occupied an apartment at Park North Village. Each apartment in this complex was furnished with a new Magic Chef range, Model 3030 IN. This model range is equipped with four burners plus an oven, and the control valve knobs for the burners are located on the front of the range. These valves are one-motion valves which are actuated by turning the pointer. This opens the valve and permits gas to enter the line and be ignited by the pilot light.

On February 9, 1967, Mrs. Sibley was working as a secretary and she left Sandra during the working day with Mrs. Ann Crane (Bunce), who also lived in an apartment at Park North Village. About nine o'clock that morning, Mrs. Crane made a pan of fudge for her two-year-old son and Sandra. After the fudge was cooked on a front burner, she turned off the range and put the pan on a back burner to cool. She told the children they could lick the pan after it had cooled. Mrs. Crane then took her little boy into the next room to change his diaper. While she was gone, Sandra pulled a chair up to the range and leaned over to get the spoon out of the fudge pan. The left front burner apparently ignited, Sandra's blouse caught fire, and before Mrs. Crane could extinguish the flame, Sandra was severely burned on her upper torso. She was hospitalized for over three months and is still under the treatment of a plastic surgeon. Permanent damage has been done to her breasts which will require two or three operations in the future. In addition, she has received extensive psychiatric treatment and will require more in the future.

It is now firmly established in Texas that a manufacturer is liable for unreasonably dangerous products--whether designed defectively or improperly and produced as designed, or whether designed perfectly but improperly or defectively produced. Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex. 1974); Otis Elevator Co. v. Wood, 436 S.W.2d 324 (Tex. 1968); Restatement 2d, Torts § 395, 398 (1965).

There is evidence that the valve on this model range was designed with a torque of less than eight inch ounces. It was a one-motion valve which was turned on with only one motion. A two-motion valve, which would have cost about an additional $1.50, could not be accidentally turned on in that the knob has to be pushed in before the knob can be turned and the valve opened. There was lay and expert testimony that the torque on the one-motion valve of this model range was so slight that an accidental touch of the knob with one's clothing could cause the knob to turn. This released the gas and the pilot light would ignite it. This design was made more dangerous by the location of the control knobs so as to protrude in front of the range. The defectiveness of the design on this model range was established by the expert testimony of Dr. Henry Grady Rylander. Although he did not conduct torque tests on the range in question, he did make torque tests on two similar models made by appellant. Dr. Rylander personally observed that the burner could be turned on by brushing the control knob with the coat on his suit. In addition to this expert testimony there was lay testimony that Mrs. Crane's range had previously been accidentally ignited on other occasions by a slight touch of the body or one's clothing. We conclude that there is sufficient evidence, if it is admissible, to support the jury's finding that the range was defectively designed when purchased by Park North Village.

Appellant urges that this evidence of defective design was inadmissible and the trial court erred in overruling its objections to same. It asserts that the testimony of Dr. Rylander as to the torque tests conducted on other ranges was inadmissible and of no probative weight. It was conclusively established that these tests were made on the same model range as that on which Sandra sustained her injuries. All tested ranges were made by appellant and were equipped with the same type of control valves. These ranges were located in other apartments in the Park North Village. The range in question had been out of use for several years before Dr. Rylander was brought into the case by appellee's attorney and it was shown that the torque on valves changes through non-use. The trial court did not err in overruling appellant's objection to Dr. Rylander's testimony as to the tests made on Magic Chef ranges which were the same model as the one in question.

Appellant also complains of the lay testimony as to other incidents which occurred on this or similar model ranges made by appellant. Mrs. Crane testified over the objection of appellant that her range had been accidentally ignited several times prior to the occasion in question when a control knob was brushed by clothing or one's body. Mrs. Wood and Mrs. Dunlap testified, over objections, to similar experiences with the range in their own apartments at Park North Village. It was established that these Magic Chef ranges were the same model as that in Mrs. Crane's apartment.

Although the question has had little consideration by Texas courts, it is recognized as a general rule that evidence of other accidents involving the same product is admissible to show its dangerous or hazardous nature if the accidents occurred under the same or substantially similar conditions as that involving the plaintiff. Annot., 42 A.L.R.3d 780 (1972). See also Keyser v. Lackey, 523 S.W.2d 295 (Tex.Civ.App.--Corpus Christi 1975, no writ); Davis, Evidence of Post-Accident Failures, Modifications and Design Changes in Products Liability Litigation, 6 St. Mary's L.J. 792 (1974). We see no difference in evidence of this type to show that the design is defective from the evidence offered by appellant that no difficulty had been experienced by any other user of this model range. The trial court did not err in overruling appellant's objections to this testimony.

The testimony of Dr. Rylander and the lay witnesses as to the slight torque necessary to activate the valve and thereby accidentally ignite the burner is sufficient to support the jury finding that the range in question was defectively designed at the time it was sold to Park North Village. Furthermore, there is sufficient evidence to support the finding that the defective design was a producing cause of the occurrence in question and the injuries to the minor appellee.

Appellant objected to the issue submitted on defective design of the range ² and urged that the inquiry should be confined to the question of whether the valve was defectively designed. It complains on this appeal of the action of the trial court in overruling its objection. Such contention is without merit. The valve was a component part of the range and appellant is responsible for its use. Malinak v. Firestone Tire & Rubber Co., 436 S.W.2d 210 (Tex.Civ.App.--Houston (1st Dist.) 1968, writ ref'd n.r.e.); Standard Motor Co. v. Blood, 380 S.W.2d 651 (Tex.Civ.App.--Houston 1964, no writ). Rule 277, as amended effective September 1, 1975, makes it discretionary with the trial court whether to submit issues broadly. Here the only issue in the case related primarily to the slight torque necessary to activate the valve although there was evidence relating to the improper location of the control knobs on the range. The issue, as framed by the trial court, fairly presented the disputed issue of defective design to the jury. The trial court did not err in inquiring broadly as to the...