Melody Home Mfg. Co. v. Morrison

Decision Date21 May 1970
Docket NumberNo. 15633,15633
Citation455 S.W.2d 825
PartiesMELODY HOME MANUFACTURING COMPANY, Appellant, v. Elby E. MORRISON et ux., Appellees. (1st Dist.)
CourtTexas Court of Appeals

Fulbright, Crooker, Freeman, Bates & Jaworski, Thomas P. Sartwelle, Houston, for appellant.

W. R. Malone, Huntsville, for appellees.

COLEMAN, Justice.

This is an appeal from an order overruling a plea of privilege in a products liability case.

Appellees purchased a new house trailer from Capri Mobile Home Sales, Inc., in Hidalgo County, Texas. The trailer was manufactured by Melody Home Manufacturing Company of Tarrant County, Texas. The trailer was delivered to appellees at a trailer park in Walker County, Texas. An agent of the seller put the trailer in place on blocks and connected it to the local water system. Appellees connected it to the other utilities and occupied it. Appellees had inspected the trailer before purchasing it and noticed no defects.

Soon after occupying the trailer the appellees noticed that the water delivered through the trailer's plumbing had a bad odor. Appellees' daughter became ill after drinking the water. Appellees and their daughter developed sores on various parts of their bodies after using the water for bathing. The water in the hydrant outside the trailer was good and odorless. The water in other trailers at the park had no odor and appellees have continued to use water at the trailer of a relative, located in the same trailer park, with no ill effects.

At the time of the trial the water continued to have a bad odor despite efforts to correct the condition. According to Mrs. Morrison two men from the factory blew air into the water pipes in her daughter's bathroom 'and there was a whole bunch of black stuff that came out of the pipes, and it looked terrible, and before we could catch it, it went down the drain.' This substance had a 'terrible' odor.

The roof of the trailer leaks, the floor has buckled in places, all of the faucets leak, and the frame is bending. Appellees had no dealings with appellant prior to the purchase of the trailer. There is no evidence that they had seen advertising materials, or brochures authorized by appellant. There is no testimony as to when the seller acquired the trailer, how long it had been in its possession, or how it was cared for by the seller prior to the purchase by appellees.

There is no evidence as to the nature of the substance polluting the water, whether vegetable, mineral, or animal. There is no evidence as to the size of water pipes, or as to whether the pipes were plugged so as to prevent the entry of rodents or insects prior to the time the water supply was connected.

Appellees contend that the trailer is worthless for the purpose for which it was purchased and seek to recover the purchase price. They also seek damages for the personal injury sustained as a result of the use of the water. They seek to sustain venue in Walker County under Exception 23 of Article 1995, Vernon's Ann.Civ.St., on the basis that a part of the cause of action arose in that county.

Section 402 A of the American Law Institute's Restatement of the Law of Torts (2d Ed.), has been adopted, and in some respects extended, by the Supreme Court of this State. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967); Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969).

This Section reads

'(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.'

It must be inferred that at the time of the purchase of the trailer home it was 'in a defective condition unreasonably dangerous to the user,' because of the noxious substance in the plumbing. It cannot, however, be inferred that the trailer was defective for this reason at the time it left the hands of the manufacturer. The evidence will not support such a conclusion.

Appellees point to the leaking faucets and roof, the buckling floor, and bending frame and draw a parallel to the case of Darryl v. Ford Motor Company, supra. It is not apparent that these defects render the house trailer unreasonably dangerous to the user, or that physical harm was thereby caused to the user. There is a distinction between physical harm, or damage, to property and commercial loss.

In the better reasoned cases the courts do not extend the doctrine of strict liability in tort to cases involving commercial loss only, but instead apply the principles of the law of sales, in which case privity of contract is required. In some jurisdictions the decisions are based on express contractual warranties, or on a tort theory based on misrepresentation of material facts. United States Pipe & Foundry Co. v. City of Waco, 130 Tex. 126, 108 S.W.2d 432 (1937); Seely v. White Motor Company, 63 Cal.2d 9, 18, 45 Cal.Rptr. 17, 23, 403 P.2d 145 (1965); Ford Motor Company v. Lonon, 217 Tenn. 400, 398 S.W.2d 240 (1966); Suvada v. White Motor Company, 32 Ill.2d 612, 210 N.E.2d 182 (Ill.1965); Anno. 16 A.L.R.3d, pp. 683--707. Contra, Santor v. A. & M. Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305, 16 A.L.R.3d 670 (1965).

In Seely v. White Motor Company,...

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