Walstrom Optical Co. v. Miller, 11205.

• Decision Date: 08 April 1933
• Docket Number: No. 11205.,11205.
• Citation: 59 S.W.2d 895
• Parties: WALSTROM OPTICAL CO. v. MILLER.
• Court: Texas Court of Appeals

59 S.W.2d 895

WALSTROM OPTICAL CO. v. MILLER.

No. 11205.

Court of Civil Appeals of Texas. Dallas.

April 8, 1933.

Rehearing Denied May 6, 1933.

Appeal from District Court, Dallas County; R. M. Carter, Judge.

Suit by Ruth F. Miller against Walstrom Optical Company. From judgment for plaintiff, defendant appeals.

Reversed and rendered.

Touchstone, Wight, Gormley & Price and Claude R. Miller, all of Dallas, for appellant.

Whitehurst & Whitehurst, of Dallas, for appellee.

BOND, Justice.

Appellee, Ruth F. Miller, instituted this suit against appellant, Walstrom Optical Company, seeking to recover damages for personal injuries alleged to have been sustained by her on account of some dye off of a pair of eyeglass frames, which she alleged she purchased from appellant.

The grounds of negligence asserted by appellee are: (1) That appellant negligently placed, or caused to be placed, a poisonous substance, lacquer dye, on the eyeglass frames in question, and sold the frames to her, knowing that said poisonous substance would be injurious to appellee when she wore said frames; (2) that appellant knew, or by the exercise of reasonable and ordinary care could and should have known, that the poisonous substance was on the frames at the time they were purchased by appellee; (3) that appellant knew, or by the exercise of reasonable and ordinary care could and should have known, the injurious effect said poisonous substance from said eyeglass frames would have on appellee's face and nose by said lacquer dye rubbing off of said frames on to appellee's face and nose; (4) that appellant failed, not only to use or exercise reasonable care, but was guilty of gross negligence in fitting the frames upon appellee with said lacquer dye thereon when they knew that said dye would rub off from said frames on appellee's face and nose, and produce injuries.

The case was tried to a jury, and, in response to the only issue submitted as to the liability of appellant on said alleged negligence, was as indicated by question No. 1: "Did the defendant, its servants or employees, apply an excess amount of dye to the rims of the glasses in question?" which issue was followed by issues as to whether the application of an excess amount of dye was negligence, and, if so, whether it was the proximate cause of appellee's injuries.

The jury found, in response to said special issues, that appellant did apply an excess amount of dye to the rims of the glasses; that such application was negligence, and that such negligence was the proximate cause of the injuries. It also found that appellee's damages were the sum of $500, and, accordingly, judgment was rendered in favor of appellee and against appellant.

Appellant's first assignment, followed by appropriate propositions anent thereto, is that there is no allegation in appellee's petition that the appellant was negligent in applying an excess amount of dye to the rims of the glasses sold by it to appellee, from which appellee received her injuries, and it was error for the trial court to submit the issue in the absence of such pleadings.

The pertinent allegations as to negligence of appellant, in applying poisonous dye to the eyeglass frames, is as stated above, and, in addition thereto, appellee specifically alleged "that on or about the 7th day of January, 1931, she returned to defendant's place of business, in the City of Dallas, Texas, and exhibited her face and nose to said employees at said time, whereupon, one of the employees of defendant, whose name is unknown to plaintiff, for which reason she cannot specifically allege his name, advised and stated to plaintiff that he, the employee of said defendant, would treat said frames with an acid or acid solution, which would remove or take away the surplus dye from said frames." This is the only allegation that the defendant was guilty of negligence in applying an excess or surplus amount of dye to the eyeglass frames.

The majority of this court is of the opinion that the allegation, as to what the employee said to appellee, that "he would treat the frames with acid and remove the surplus dye from the frames," taken in connection with the other allegations, that appellant negligently applied the dye to the frames, and that it rubbed off on appellee's face and nose, and its further allegations in the petition that "by reason of the acts of negligence as herein alleged, which is the direct and proximate result of the negligence of defendant," are sufficient in the absence of exceptions to admit of the issue as to whether appellant applied an excess amount of dye to said frames. The writer does not entertain that view. He interprets the allegations that appellant's act of negligence, as disclosed by appellee's petition, bears only as to the application of poisonous dye to the eyeglass frames, and not in the application of an excess amount of such dye, or the manner in which the dye was applied. One might be guilty of negligence in applying an excess amount of dye to eyeglass frames and not be negligent in applying a reasonable or lesser amount. The allegation as to what an employee said to appellee subsequent to the sale, "that he would treat the frames with acid and remove the surplus of dye," is an allegation of a conclusion formed by the employee, evidentiary in character, and has no probative...