Shamrock Fuel & Oil Sales Co. v. Tunks, 14887

• Decision Date: 06 October 1966
• Docket Number: No. 14887,14887
• Citation: 406 S.W.2d 483
• Parties: SHAMROCK FUEL & OIL SALES CO., Inc., et al., Relators, v. Honorable Bert H. TUNKS, Judge 113th Judicial District Court of Harris County, Texas et al., Respondents. . Houston
• Court: Texas Court of Appeals

Page 483

406 S.W.2d 483

SHAMROCK FUEL & OIL SALES CO., Inc., et al., Relators, v. Honorable Bert H. TUNKS, Judge 113th Judicial District Court of Harris County, Texas et al., Respondents.

No. 14887.

Court of Civil Appeals of Texas Houston.

Oct. 6, 1966.

Fulbright, Crooker, Freeman, Bates & Jaworski, Russell Talbott, Houston, for relators Shamrock Fuel & Oil Sales Co., Inc. and Keith L. Ward.

McGregor, Sewell, Junell & Riggs, Ben Sewell, Houston, for relator Johnny Hale.

Joe Jaworski, Ronald C. Kline, Houston, Bracewell & Patterson, Houston, of counsel, for respondents.

COLEMAN, Justice.

This is an original proceeding for mandamus to require the trial court to enter judgment in a cause wherein he had set aside the verdict of the jury and declared a mistrial. Among the issues to be considered are: (1) the necessity for privity in a suit for personal injuries based on implied warranty, and (2) whether contributory negligence is a defense in such a suit.

This suit was instituted by William Earl Munsinger, for himself and as next friend of his minor son, against the retailer, the distributor, and the manufacturer of kerosene oil purchased by him, which exploded when poured on a glowing coal at the direction of his minor son by another child. As a result of the explosion the minor, Omy Ray Munsinger, received serious burns and his father incurred the considerable expense of his necessary medical treatment. The explosion happened while the children were playing with fire, contrary to the instructions, and without the knowledge of their parents.

Relator Shamrock purchased the kerosene oil from a refiner in bulk and stored it in a large tank. As needed it was withdrawn from the storage tank and placed in the tank trucks owned by the company. Employees of the company then drove the trucks on regular routes to various retail establishments, including the Gulf Filling Station operated by Relator Hale. There is testimony that one of the route men visited Hale's station at two-week intervals. He would check the 55 gallon barrel in which Hale stored kerosene and, if an appreciable amount was required to fill the barrel, would remove the pump and fill the barrel. No name appeared on the barrel which was painted in the Gulf colors.

William Munsinger purchased kerosene from Hale, and there was evidence that at the time of the explosion the kerosene was adulterated by the addition of gasoline to the extent that the flash point of the kerosene was lower than that specified by Article 1104, Vernon's Ann.P.C. There was evidence that kerosene oil, with the flash point specified, when poured on a glowing coal would smoke and probably extinguish the coal, but would not explode.

The trial court granted an instructed verdict in favor of the refiners and no question concerning this action is involved in this proceeding.

The jury was unable to agree on answers to all of the issues and the parties agreed, subject to the right to object that material issues were not answered, that the court might receive a partial verdict. The jury had not been able to agree on answers to all of any series of issues submitting the plaintiff's grounds for recovery against any of the defendants. It found that the minor plaintiff directed his brother to pour the kerosene oil on the glowing coal and that this action constituted negligence and was a proximate cause of the explosion.

Relators contend that the contributory negligence finding would have prevented a judgment for the plaintiff, no matter how the jury answered the issues on primary negligence of on implied warranty, and that in view of the finding of contributory negligence all of the other issues became immaterial. They also contend that there was no evidence of privity of contract between the injured minor and the retailer or between either of the plaintiffs and the distributor, Shamrock, and that privity of contract must exist before liability can be predicated on the breach of an implied warranty.

The trial judge expressly based his action in declaring a mistrial on his finding that material issues of fact were not answered by the jury.

The Relators concisely state the problem presented as follows:

'The two issues before this Court are simple: (1) Is privity of contract between the injured plaintiff and the defendants essential to any liability on implied warranty? (2) If the answer to (1) is no, is contributory negligence a defense to implied warranty liability?'

Neither of these questions has been determined by the Supreme Court of Texas, except in cases involving food for human consumption . In Jacob E. Decker & Sons, Inc. v. Capps, 1942, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479, the ultimate consumer brought an action for injuries to herself, her husband and other members of her family caused by eating contaminated food manufactured by Decker and sold to a retailer in a sealed container, who, in turn, sold it to the plaintiff in the same container. The Court allowed the action against the manufacturer based on an implied warranty of fitness, and held privity of contract unnecessary in such an action. The Court stated:

'While a right of action in such a case is said to spring from 'warranty,' it should be noted that the warranty here referred to is not the more modern contractual warranty, but is an obligation imposed by law to protect public health. * * * The action on a warranty sounded in tort was in the nature of an action on the case for deceit, although it was not necessary to plead or prove scienter . * * * The doctrine of privity of contract and of the necessity therefor in order to sustain an action grew out of the later action of assumpsit. It applies only when one is seeking to enforce a contract.'

The Court held that a nonnegligent manufacturer, who processed and sold contaminated food to a retailer for resale for human consumption, is liable to the consumers of the food for injuries sustained as a result of the eating of such food. 'Liability in such case is not based on negligence, nor on a breach of the usual implied contractual warranty, but on the broad principle of the public policy to protect human health and life.'

While this case spoke only of food for human consumption, and stressed the public policy to protect human health and life, the doctrine has been extended to include drugs for human consumption or intimate bodily use. Cudmore v. Richardson-Merrell, Inc., Tex.Civ.App.1966, 398 S.W.2d 640, writ ref., n.r.e. The principle has also been extended to include cattle feed. Burrus Feed Mills, Inc. v. Reeder, Tex.Civ.App.1965, 391 S.W.2d 121.

These decisions eliminating the requirement of privity in implied warranty cases might have been predicated by reason of the opinion of the Supreme Court of Texas in United States Pipe and Foundry Co. v. City of Waco, 130 Tex. 126, 108 S.W.2d 432. There the Court held the manufacturer of pipe liable in damages to the City of Waco for breach of warranty although the pipe was purchased by a contractor and used in performing a contract with the City. In the opinion the Court cited two cases involving the sale of food, Madouros v. Kansas City Coca-Cola Bottling Company, 230 Mo.App. 275, 90 S.W.2d 445, and Coca-Cola Bottling Company of Fort Worth v. Smith, Tex.Civ.App., 97 S.W.2d 761, and, referring to these cases, stated:

'By citing the above cases, this court does not commit itself either to the correctness of the holding in each case or to the correctness of every expression therein. Their reasoning aptly applies here, and illustrates the tendency of modern courts away from the narrow legalistic view of the necessity of formal immediate privity of contract in order to use for breach of an express or implied warranty.'

Strict liability was enforced in Decker because of the public policy to protect human health and life. The same policy should be, and is, applicable to products other than food which, when defective or contaminated, are highly dangerous to human life and health. Bowerman v. Goodyear Tire & Rubber Co., 105 F.Supp. 119 (N.D.Tex.1952); Siegel v. Braniff Airways, Inc., 204 F.Supp. 861 (S.D.N.Y.1960); Crusan v. Aluminum Company of America, 250 F.Supp. 863 (E.C.Tex.1965).

One selling, or offering for sale, a product, representing either expressly or by implication that it is kerosene, thereby impliedly warrants that the product is suitable for use for domestic cooking, illuminating, heating, or other domestic uses, and that the flash point of the product is 112 Fahrenheit, or higher, according to the United States official closed cup testing method of the United States Bureau of Mines. Such a warranty will be implied as a matter of law since a strong public policy to afford such protection to the citizens of this State can be discerned from the provisions of Article 1104, V.A.P.C.

The right to recover damages in this case, insofar as the recovery is predicated on the breach of one of these implied warranties, cannot be denied by reason of the alleged failure to prove privity of contract.

Putman v. Erie City Manufacturing Company, 338 F.2d 911 (5th Cir. 1964), strongly supports this decision. There the court considered both the applicable Texas cases, many cases from other jurisdictions, and the considered opinions of many legal scholars in reaching the conclusion that when the matter is properly presented the Supreme Court of Texas will hold that '* * * a manufacturer or assembler of a defective product, unreasonably dangerous to the user, is subject to strict liability to the user for an injury caused by the defect, even though the product is not a food for human consumption, there is no proof of negligence, and there is no privity between the user and the manufacturer or assembler.' Comprehensive citations to relevant material are found in Judge Wisdom's opinion which support our decision in this case. To avoid extending this opinion we refrain from again citing the wealth of authority on...