Shoppers World v. Villarreal

• Decision Date: 30 January 1975
• Docket Number: No. 894,894
• Citation: 518 S.W.2d 913
• Parties: SHOPPERS WORLD and Horace Lytle, d/b/a Shoppers World Grocery, Appellants, v. Timoteo VILLARREAL et ux., Appellees.
• Court: Texas Court of Appeals

Page 913

518 S.W.2d 913

SHOPPERS WORLD and Horace Lytle, d/b/a Shoppers World Grocery, Appellants, v. Timoteo VILLARREAL et ux., Appellees.

No. 894.

Court of Civil Appeals of Texas Corpus Christi.

Jan. 30, 1975.

Rehearing Denied Feb. 13, 1975.

Ronald B. Brin, Allison, Maddin, White & Brin, Corpus Christi, for appellants.

J. Robert McKissick, Edwards & De Anda, Corpus Christi, for appellees.

OPINION

YOUNG, Justice.

This is a personal injury case that was tried on the theory of products liability. On July 18, 1970, Sovedia Villarreal was shopping in Shoppers World Grocery Store. She removed a plastic bottle of liquid soap from a display shelf and placed it in her shopping cart. She then proceeded a short distance to another display of goods. As she attempted to push her cart away from the second display, her feet slipped from under her and she fell to the floor. She experienced pain and was removed to the hospital. After undergoing subsequent unsuccessful therapy, she underwent back surgery. Consequently, she and her husband, Timoteo Villarreal, sued Shoppers World, Inc., a corporation, and Horace Lytle, doing business as Shoppers World Grocery. During the trial the corporation was non-suited.

The parties stipulated that there was a slit-type opening in the bottle and that it was in the bottle prior to the time that Mrs. Villarreal removed the bottle from the shelf. It was further stipulated that Mrs. Villarreal slipped on soap which leaked from the bottle. There was no stipulation regarding the length of time that the bottle was on the shelf or how long the slit had been in the bottle.

The case was tried before a jury which answered the special issues favorably to the plaintiffs. Based upon the verdict the trial court entered judgment in favor of the Villarreals for $23,800.00 against the remaining defendant, who appeals.

At the outset, we note that the appellant's attack on the judgment is primarily founded upon the failure of appellees to prove certain elements of their case about liability. The evidence on the issue of liability is meager compared to that on damages.

Restatement of the Law, Torts (2d) § 402A sets out the necessary elements for appellees' cause of action in strict liability. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup.1967); Gravis v. Parke-Davis & Co., 502 S.W.2d 863 (Tex.Civ.App.--Corpus Christi 1973, writ ref'd n.r.e.). The appellees recovered against appellant on two grounds: first, the defect of the slit-type opening in the bottle of liquid soap; second, appellant's failure to warn shoppers of the leaking condition of the soap bottle.

By his first point of error, appellant complains of the trial court's refusal to grant its motion for instructed verdict. Appellant's motion was dictated into the record and states the following grounds for a directed verdict:

1. There is no evidence of any negligence or proximate cause on the part of the defendant (appellant).

2. The case does not sound in products liability and is not a strict liability case.

3. There is no evidence that the bottle of soap in question was received by defendant (appellant) in the condition in which Mrs. Villarreal found it.

4. There is no evidence that the defendant or any of its employees had knowledge of the condition of the bottle as plaintiff found it.

5. There is no evidence that the bottle was unmolested or the condition of it changed by persons other than plaintiff or defendant .

6. There is no evidence that plaintiff did not contribute to the defective condition.

7. There is no evidence that persons other than defendant or his employees caused the defect after the bottles were received by the defendant.

Appellant (contrary to the contention in appellant's first point of error) did not complain in its motion for directed verdict of the absence of evidence showing that the bottle of soap was expected to and did reach Mrs. Villarreal in substantially the same condition in which it was sold. Thus, such issue is not before this Court on the issue of the trial court's refusal to grant appellant's motion for directed verdict. Arnold v. Tarrant Beverage Co., 215 S.W.2d 894 (Tex.Civ.App.--Galveston 1948, writ ref'd n.r.e.); Texas Rules of Civil Procedure, rule 268 (1967); Dickerson, Appeal and Error--Practice and Procedure--Trial Practice, 35 Texas L.Rev. 846, 848 (1957). We must, therefore, consider the propriety of the trial court's action only in light of the grounds above.

The first ground could not have been properly upheld by the trial court because there was no pleading of negligence by appellees; the second ground is too general and should not be considered by this Court. Tex.R.Civ.P. 268.

Grounds 3, 5, 6 and 7 all deal with those who caused the defect or when the defect arose. These contentions of the appellant are not well founded. The crucial time when appellees must establish that a defect existed is that moment when the bottle of soap was removed from the display shelf by Mrs. Villarreal. We feel that this is the meaning of § 402A(1)b which states that a seller is liable if the defective product 'is expected to and does reach the user or consumer without substantial change in the condition in which it was sold'. The solution to this problem turns on the meaning of the term 'sold'. It has now been recognized that neither a change in possession nor an actual sale is required. Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.Sup.1969); Davis v. Gibson Products Company, 505 S.W.2d 682 (Tex.Civ.App.--San Antonio 1973, writ ref'd n .r.e.).

No Texas case has expressly held that the term 'sold' is equivalent to 'the time when the party seeking to hold a seller liable picks up an item for handling or purchase'. We feel, however, that Davis, at page 690, does give rise to such an interpretation of the term 'sold'. Further, this interpretation of 'sold' is compatible with Restatement § 402A, supra, as demonstrated by that portion of Comment (c) which follows:

'. . . the justification for the strict liability has been said to be . . . that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; . . . and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper person to afford it are those who market the products.'

The reason that there is need for such a construction of the term 'sold' is because there is no true sale, as in our case, where a customer is shopping at a self service store. A customer in that instance is free to examine products and then return them to the display shelf. If this interpretation is correct, the key issue then is whether the defect existed at the time appellant removed the bottle from the display. In its motion for directed verdict, appellant did not address any of its complaints to the absence of proof of a defect existing at the time Mrs. Villarreal removed the bottle of soap from the display. Thus, grounds 3, 5, 6 and 7 could not have been properly upheld by the trial court.

Ground 4 of appellant's motion for directed verdict is well founded. An essential element of appellees' cause of action based upon appellant's failure to warn of the defect is the existence of knowledge, actual or constructive, on the part of appellant that the bottle was defective. Ford Motor Company v. Russell & Smith Ford Company, 474 S.W.2d 549 (Tex.Civ.App.--Houston (14th Dist.) 1971, no writ); Restatement § 402A, supra, Comments (h) and (j); Restatement of Law, 2d Ed., Torts § 388. Technical Chemical Company v. Jacobs, 480 S.W.2d 602 (Tex.Sup.1972) cited by appellee, does not hold to the contrary. The evidence shows that appellant was aware that soap on the floor would be very slippery. Further, appellant testified that some soap might leak from a cut in such a bottle. It was not appellant's intention to have soap on the floor. In reviewing the refusal of a trial court to grant a motion for a directed verdict, the appellate court must disregard all evidence adverse to the non-moving party and give credit to all evidence favorable to said non-moving party. The appellate court should indulge every legitimate inference favorable to the non-movant. Hardware Mutual Casualty Company v. Brown, 390 S.W.2d 53 (Tex.Civ.App.--San Antonio 1965, writ ref'd n.r.e.); Leach v. Leach, 208 S.W.2d 618 (Tex.Civ.App.--Galveston 1948, writ ref'd n.r.e .).

The evidence wholly fails to yield any inference that appellant knew or should have known of the leaking condition of the bottle. Thus, the trial court erred in refusing to grant appellant's motion for directed verdict on the issue of liability for failure to warn; provided appellant has not waived his motion. It has been held that where a defendant moves for a directed verdict at the close of plaintiff's evidence and such motion is overruled by the trial court, the defendant, by proceeding with his evidence, waives his motion. Texas Construction Rentals, Inc. v. Harrison, 410 S.W.2d 482 (Tex.Civ.App.--Waco 1966, writ ref'd n.r.e.); Robb v. Gilmore, 302 S.W.2d 739 (Tex.Civ.App.--Fort Worth 1957, writ ref'd n.r.e.). Such was done here. Appellant's first point is overruled.

By its second point, appellant complains of the trial court's refusal to grant its motion for judgment notwithstanding the verdict . Appellant alleges that there was no evidence that the bottle of liquid soap was expected to and did reach Mrs. Villarreal in substantially the same condition in which it was sold. Appellee further alleges that there was no evidence that appellant knew of or had a reasonable opportunity to discover the existence of the slit-type opening in the bottle of soap.

In reviewing the propriety of the trial court's refusal to grant appellant's motion for judgment n.o.v., this Court must consider all testimony in the light most favorable to the party against whom...