Nugent v. Utica Cutlery Co.

• Decision Date: 30 June 1982
• Docket Number: No. 16640,16640
• Citation: 636 S.W.2d 805
• Parties: Jack C. NUGENT and CNA Insurance Company, Appellants, v. UTICA CUTLERY COMPANY and Mathias Klein & Sons, Inc., Appellees.
• Court: Texas Court of Appeals

Page 805

636 S.W.2d 805

Jack C. NUGENT and CNA Insurance Company, Appellants, v. UTICA CUTLERY COMPANY and Mathias Klein & Sons, Inc., Appellees.

No. 16640.

Court of Appeals of Texas, San Antonio.

June 30, 1982.

Rehearing Denied July 27, 1982.

Gary W. Javore, Henry W. Christopher and Wm. H. Quirk, III, Johnson & Christopher, San Antonio, for appellants.

James D. Guess, Groce, Locke & Hebdon, San Antonio, for appellees.

Before KLINGEMAN, ESQUIVEL, CLARK and CANTU, JJ.

OPINION

KLINGEMAN, Justice.

This is an appeal from a take-nothing judgment entered against appellant, Jack C. Nugent, in a products liability case involving an allegedly defective knife. ¹ Appellant sought to establish that the manufacturer, Utica Cutlery Company, and the seller, Mathias Klein & Sons, Inc. (appellees herein), were liable for either a manufacturing defect or a failure to warn. In answer to appellant's liability issues, the jury failed to find that the knife was defective or that appellees breached a duty to warn.

Appellant had been performing electrician-type work for approximately one year, when in the course of his employment, he purchased from his employer, Calhoun Electric (a non-party to the suit) a knife wrapped in cellophane. When the knife was three-to-four weeks old, appellant suffered an injury to his eye while using the knife to backstrip wires on a hall fixture. Appellant's description of the incident revealed that he was in the hallway of a house standing at an angle, when he placed the knife into the wire, just through the sheathing. As appellant stripped the wire down, the knife got caught. At this point appellant gave the knife a jerk. The knife snapped and went into his eye. Appellant blinked and fluid squirted out. He grabbed his eye and sought help. He was taken to a hospital where surgery was performed. Appellant suffered permanent injury to his eye, including loss of vision.

At the time of the injury appellant did not realize that the knife had broken. Worried about the injury to his eye, appellant really did not know what had happened to the knife. He thought it had slipped.

Appellant did not realize that the knife had broken until a few weeks after the incident; when he was out of the hospital, recuperating from the surgery performed on his eye. While going through his uniforms in order to send them to the company to be cleaned, appellant's wife found the knife in his shirt pocket. Until this time appellant did not know the location of the knife. Discovering that the knife was broken, appellant reasoned that this was why the injury occurred. Appellant testified:

... when it sort of struck me, the reason it happened the way it did, because I had never had the blade come right for me, you know when it slipped off. Usually slid off to the side.

Appellant basically contends that the knife involved had a manufacturing defect which caused it to break resulting in the injury to his eye. He asserts that he was not given adequate warning of any defect and that the manufacturer represented to the public that the knife was sturdily constructed of high grade steel, carefully tempered. Appellant's expert witness testified that it was his opinion that the top of the knife had a residue in it, which indicated that the residue resulted from a relatively high heat condition and that in metallurgical terms this condition is known as a stress riser. He testified that the stress riser was a manufacturing defect which caused the knife to break. On cross-examination appellant's expert witness admitted that he made a 41/2 or 5 page typewritten report of the investigation he made of the knife blade to determine the cause of the fracture of the blade of the knife and that nowhere in such report was the word stress riser ever found. On further cross-examination he also testified he had used heat to cut the knife blade into four pieces.

Appellee's expert witness testified that he obtained some pieces of the knife blade for examination and made extensive examinations of the pieces of metal. He testified that it was his opinion that the break was caused by an overload on the material which in layman's terms meant an excessive amount of force being applied to the blade. He testified that in the course of such examination and analysis he made of the knife, he did not find any evidence of any defect or problem with the metal.

When asked what his opinion was as to the reason for or cause for the breaking where the breaking occurred, he stated:

It is apparent that the only cause of the fracture was an application of a load or stress in excess of what the material was capable of standing in the blade fracture. It was overloaded in a bending fashion. By pressing on the side of the blade to the point where the blade could no longer withstand the load and it fractured from one surface of the blade to the other.

Appellant complains in his first point of error that the trial court erred in refusing to submit to the jury the following requested special issues:

(1) Do you find from a preponderance of the evidence that defendant Mathias Klein & Sons, Inc. represented to the public that its electrician's skinning knife, such as the knife used by Jack Nugent, was "sturdily constructed of high grade steel carefully tempered" and "guaranteed against defects in materials and workmanship."

(2) Do you find from a preponderance of the evidence that representations of Mathias Klein & Sons, Inc. that the electrician's skinning knife used by Jack Nugent on the occasion in question was "sturdily constructed of highgrade steel carefully tempered" and "guaranteed against defects in materials and workmanship" were false?

(3) Do you find from a preponderance of the evidence that such representations were relied upon by Calhoun Electric Company, in purchasing the knives sold and distributed by Defendant Mathias Klein & Sons, Inc.?

(4) Do you find from a preponderance of the evidence that such representations were a producing cause of the injury and damages, if any, suffered by Jack Nugent on June 15, 1977?

To support the submission of these requested special issues appellant contends that he pled and offered evidence to prove a cause of action based upon Restatement (Second) of Torts § 402B (1965). Section 402B is a distinct cause of action which imposes strict liability for physical harm to the consumer resulting from a misrepresentation of material fact concerning the character or quality of the product sold and, upon which the consumer justifiably relied, even though the misrepresentation is an innocent one, and not made fraudulently or negligently. Appellant asserts that the submitted special issues inquiring whether the knife was manufactured in a defective manner and, if so, was the producing cause of the injury, were based upon a section 402A cause of action and not upon a section 402B cause of action. Therefore, the trial court's failure to submit these requested issues denied appellant a fair submission of the controlling and ultimate issues in the case.

The essential elements of a section 402B cause of action are:

(1) One engaged in the business of selling chattels

(2) who, by advertising, labels or otherwise, makes to the public a misrepresentation

(3) of a material fact concerning the character or quality of a chattel sold by him

(4) is subject to liability for physical harm to a consumer of the chattel caused by

(5) justifiable reliance upon the misrepresentation,

(6) even though it is not made fraudulently or negligently, and in the absence of any contractual relation with the seller.

The requested issues in question here do not ask the jury (1) whether the representations made were one of material facts or (2) whether appellant's employer justifiably relied upon these representations when purchasing Klein tools. Appellant argues at great length that the requested issues were in substantially correct form and that the omission of these two elements was not fatal to the submission of these requested issues. Specifically, appellant contends that the representations "by their nature (were) representations of material facts concerning the character and quality of the knife" and that the requested issue addressing reliance was only at slight variance with the wording of the general rule with respect to justifiable reliance. Moreover, appellant asserts "justifiable reliance" is an inherent element of the issue of producing cause.

Appellant's argument is without merit and does not support his contention that the failure of the trial court to submit requested issues constitutes reversible error. 3 R. McDonald, Texas Civil Practice § 12.33.2 (rev. 1970), states "When the requested special issue is one of a series of interdependent issues all of which are essential properly to submit a theory of recovery or defense (e.g., act, negligence, and proximate cause) and none of which is already included in the charge, a request is in 'substantially correct' form only when it incorporates all of the required special issues." In addition, there is a line of court of civil appeals cases which states:

When a requested special issue is one of a series of interdependent issues all of which are essential to submit a theory of recovery or defense, such as discovered peril, and none of such issues are already included in the charge, a request is in substantially correct form as required by Rule 279, Texas Rules of Civil Procedure, only when it incorporates all of the required special issues.

Lee v. Howard, 483 S.W.2d 922 (Tex.Civ.App.-Eastland 1972, writ ref'd n.r.e.). See Mata v. Albert, 548 S.W.2d 496 (Tex.Civ.App.-Eastland 1972, writ ref'd n.r.e.); Yellow Cab Co. v. Smith, 381 S.W.2d 197 (Tex.Civ.App.-Waco 1964, writ ref'd n.r.e.); Holland v. Lesesne, 350 S.W.2d 859 (Tex.Civ.App.-San Antonio 1961, writ ref'd n.r.e.); Crain v. West Texas Utilities Co., 218 S.W.2d 512 (Tex.Civ.App.-Eastland 1949, writ ref'd n.r.e.); Federal Underwriters Exchange...