Rego Co. v. Brannon

• Decision Date: 06 December 1984
• Docket Number: No. 01-83-0864-CV,01-83-0864-CV
• Citation: 682 S.W.2d 677
• Parties: REGO COMPANY, Appellant, v. Edsel W. BRANNON, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 677

682 S.W.2d 677

REGO COMPANY, Appellant, v. Edsel W. BRANNON, Appellee.

No. 01-83-0864-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Dec. 6, 1984.

Rehearing Denied Dec. 31, 1984.

James C. Arnold, Montgomery J. English, H. Lee Lewis, Jr., Ross, Griggs & Harrison, Barclay A. Manley, Thomas P. Sartwelle, Fulbright & Jaworski, Susan M. Townsend, Funderburk & Funderburk, James Barker, Talbert, Giessel, Stone, Barker & Lyman, Houston, for appellant.

Ron G. Franklin, A. Glenn Diddel, III, Hill, Parker, Franklin, Cardwell & Jones, Houston, for appellee.

OPINION

BULLOCK, Justice.

Rego appeals from a trial court judgment rendered on a jury verdict, awarding the appellee $205,000 in damages and post-judgment interest at an annual rate of 10%. We affirm.

The appellee purchased a pressurized propane gas cylinder in February, 1977, to fuel the stoves in his barbeque restaurant. In August, 1978, the appellee took the cylinder to a propane filling station, had it filled with propane gas, placed it in the rear of his hatchback automobile, and drove to his restaurant. He parked the automobile outside the building and left it there all day. When he returned to the automobile that evening and struck a match, propane gas that had accumulated inside the automobile ignited, inflicting second and third degree burns over 30% of the appellee's body. Although propane gas normally contains an odoring agent, the appellee testified at trial that, because his clothes were saturated with barbeque sauce, he was, at the time of the accident, unable to smell anything except the aroma of barbeque.

Lee Cylinders, Inc., a co-defendant in this cause who arrived at a settlement with the appellee, manufactured the cylinder that contained the pressurized gas. Lee Cylinders affixed a warning label to the body of the cylinder that advised users not to expose the cylinder to fire or heat, and that "the valve is equipped with an automatic relief device designed to actuate when internal pressure exceeds 375 P.S.I."

The appellant is the manufacturer of the valve, which contains a hand-operated main control and an automatic safety release. This is a spring-loaded device, required by federal law on such pressure control systems, designed to trip open automatically whenever pressure in the cylinder exceeds a threshold of 375 pounds per square inch, in order to prevent rupture and possible explosion. Evidently the temperature inside the automobile on August 11, 1978, reached or exceeded the required temperature that would cause excessive pressure within the tank, with the result that the automatic release bled quantities of propane into the vehicle throughout the day.

The appellee offered the testimony of an expert witness who testified that in his opinion the valve was defective as marketed from the standpoint that the appellant had failed to affix any warning on the valve apprising users of the existence and operation of the automatic safety release. The appellant countered that the valve was neither defective in its design nor manufacture, and that if anyone had been careless in failing to place adequate warnings about the automatic safety release, it had been the co-defendant Lee Cylinders.

The jury found that the appellant failed to give adequate warnings regarding the automatic safety release and that this failure to warn rendered the valve unreasonably dangerous as marketed. It then apportioned the negligence in this dispute as follows: 18% with Lee Cylinders; 41% with the appellee, and 41% with the appellant. The jury awarded $500,000 in damages, and the trial court assessed the appellant's percentage of liability for the total award.

The appellant presents four points of error on this appeal, comprising three arguments:

That the trial court improperly denied the appellant's motion for judgment notwithstanding the verdict (Points of Error 1, 2);

That insufficient evidence supports the jury's attribution of negligence among the parties (Point of Error 3); and

That the trial court improperly admitted evidence of other claims against the appellant (Point of Error 4).

The appellant argues that the evidence introduced at trial did not support any theory of recovery against it, specifically, contending that the evidence established only the following:

1) That the design of the valve was not defective;

2) That the appellee's only evidence regarding the inadequacy of a warning thus goes to the question of a warning about a non-existent design defect; and therefore

3) That since the appellant's valve, standing by itself, had no defect, any danger or harm arising in this case arose as a result of Lee Cylinders' failure to impart an adequate warning to the appellee.

The appellant contends that, contrary to the jury's finding, it did not fail to provide an adequate warning to the appellee, and this failure to warn did not render the valve unreasonably dangerous as marketed. The appellant argues that the trial court should have sustained its motion for a judgment notwithstanding the verdict.

"Errors of the trial court in refusing to render judgment non obstante veredicto raise only no evidence questions for appellate review." Wise v. Pena, 552 S.W.2d 196, 199 (Tex.Civ.App.--Corpus Christi 1977, writ dism'd). Moreover:

The law is clear in this State that before a trial court can render a judgment non obstante veredicto, based on the absence of evidence, it must determine that there is no evidence having probative force upon which the jury could have made the findings relied upon. In making this determination, all evidence must be considered in a light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in such party's favor [citations omitted].

Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970); see Missouri Pacific Railroad Co. v. Shaw, 620 S.W.2d 161, 163 (Tex.Civ.App.--Corpus Christi 1981, writ ref'd n.r.e.); Siderius, Inc. v. Wallace Inc., 583 S.W.2d 852, 860-61 (Tex.Civ.App.--Tyler 1979, no writ); City of San Augustine v. Roy W. Green Co., 548 S.W.2d 467, 472 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.); Hartford Accident & Indemnity Co. v. Spain, 520 S.W.2d 853, 855 (Tex.Civ.App.--Tyler 1975, no writ); cf. Tex.R.Civ.P. 301.

In reviewing a challenge that insufficient evidence supports the jury's finding, we must look to the record as a whole. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); In re King's Estate, 150 Tex. 662, 663, 244 S.W.2d 660, 661 (1951). The jury is the sole judge of the credibility of a witness and the weight to be given his testimony. See, e.g., Dotson v. Royal Indemnity Co., 427 S.W.2d 150 (Tex.Civ.App.--Fort Worth 1968, writ ref'd n.r.e.).

We agree with the appellee that the trial court acted properly in denying the appellant's motion for judgment notwithstanding the verdict. The appellee offered the testimony of a competent and qualified expert witness who testified clearly about the need for an adequate warning on the valve itself as to the existence and function of the automatic safety release, and therefore as to the dangers presented by the normal or abnormal operation of that automatic release. We do not agree with the appellant's contention that this evidence established only a question regarding the design of the valve itself. The evidence introduced at trial established the necessity for an adequate warning affixed to the valve assembly independent of the warning attached to the cylinder, and it also established the responsibility of the component manufacturer, the appellant herein, to ensure the effective transmission of...