Opinion
No. 01-02-00805-CV
Opinion issued November 26, 2003.
On Appeal from the 122nd District Court Galveston County, Texas, Trial Court Cause No. 00CV0468.
Panel consists of Justices TAFT, JENNINGS, and HANKS.
MEMORANDUM OPINION
Appellants, Four Brothers Boatworks, Inc. (Four Brothers) and Billy B., Inc., (Billy B.), challenge a take-nothing judgment rendered on their breach of implied warranty of merchantability cause of action in favor of appellee, American Industrial Heat Transfer, Inc. (American Industrial). In their sole point of error, appellants contend that the jury's verdict was "contrary to the overwhelming weight and preponderance of the evidence." We affirm.
Facts
Appellants are sister companies that are owned and operated primarily by Richard Ryan and his family in Galveston. Billy B. owned and operated six "crew boats," including the Nautilus, that transported passengers and cargo to ships and oil rigs located in the Gulf of Mexico. Four Brothers repaired and serviced the "crew boats."
In August of 1997, appellants decided to install a new engine oil cooling system on the Nautilus, and, pursuant to this decision, Ryan contracted with Kinetic Engineering Corporation (Kinetic) to design a "four pass tube" heat exchanger system. After the parties agreed on the design and the type of heat exchangers to be used, Kinetic ordered three heat exchangers from American Industrial, and Four Brothers purchased them. These heat exchangers each contained a copper tube and zinc anodes, which protected the copper from corrosion. Appellants had used similar heat exchangers on their "crew boats" in the past and had never experienced any problems with them. After purchasing the heat exchangers, appellants installed them in the Nautilus' three engines.
An anode is a "positively charged electrode by which . . . electrons leave a device. The opposite of cathode." The New Oxford American Dictionary 63 (2001).
In May of 1998, while the Nautilus was "running offshore in the Gulf," the captain discovered that the boat's port engine was leaking oil. The captain brought the Nautilus back to port, and appellants' mechanics were "called in" to repair the problem. The mechanics "pressure tested" the port engine's heat exchanger and determined that oil had leaked from the "oil side" of the heat exchanger through to the "salt water side" and had been "dumped overboard." This meant that there was a lack of lubrication in the port engine and this "damaged [the port engine] to the point [that] it should not be r[u]n anymore." As a result, appellants had to rebuild the port engine and install a new heat exchanger.
In June of 1998, appellants discovered that the Nautilus' starboard engine was also leaking oil and that this had caused severe damage to the engine. Appellants had to rebuild this engine and install a new heat exchanger. Because two out of the three heat exchangers had failed, appellants decided to remove and replace the heat exchanger in the Nautilus' center engine.
Appellants examined all three heat exchangers and found that the tubes in the port and starboard engine heat exchangers had holes in them. Additionally, appellants found that the tube in the center engine heat exchanger had a "crack" in it, but the "crack" had been "plugged up" with "silver solder" to prevent leakage.
Appellants contacted American Industrial and demanded that it supply appellants with three new heat exchangers. After American Industrial refused, appellants brought this lawsuit, claiming that the heat exchangers were not fit for their ordinary purpose.
At trial, the parties introduced contradictory expert testimony concerning the source of the holes in the tubes. Appellants' expert metallurgist, Stephen Anderson, testified that the holes were produced by American Industrial's manufacturing process. Anderson determined that the holes in the tubes were originally single "elongated pits" that became holes over time because of corrosion. Furthermore, Anderson determined that the holes were almost identically located one inch from the edge of the tubes, which suggested that the "pits" were produced by American Industrial's manufacturing process.
In contrast, American Industrial's expert metallurgist, Paul Kovach, testified that the holes were caused by appellants' failure to timely replace the zinc anodes on the tubes. Kovach found that there were zinc anodes on only one side of the tubes, and he testified that "as the[se] anodes deteriorated," there was no "cathodic protection" on the other side of the tubes and so "pitting [began]." These "pits" then became holes over time because of corrosion.
In support of Kovach's testimony, American Industrial's principal shareholder, Gus Sariri, testified that his company "pressure tested" every heat exchanger, "including the three that are at issue," to check for leaks, and that American Industrial had never manufactured a "failed" tube. Furthermore, Sariri testified that he believed that the tubes in this case "failed" because of appellants' improper maintenance.
Factual Sufficiency of the Evidence
In appellants' sole point of error, they argue that the jury's verdict was "contrary to the overwhelming weight and preponderance of the evidence" because (1) "two out of the three heat exchangers failed after only ten months," and Ryan testified that similar heat exchangers "had lasted on appellants' boats for as many as 25 years," (2) appellants' metallurgy expert testified that the heat exchangers failed because of a "manufacturing defect," and (3) "identical type" replacement heat exchangers, made by a different manufacturer, "lasted problem free for several years."
Our review of the factual sufficiency of the evidence requires us to consider all of the evidence, both in support of and contrary to the jury's finding. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). If a jury is presented with evidence sufficient that reasonable minds could differ, we may not substitute our opinion for that of the jury merely because we may have reached a different conclusion. Hebert v. Hebert, 754 S.W.2d 141, 144 (Tex. 1988). Instead, we will set aside a jury's finding for factual insufficiency only if, after considering all the evidence, the jury's finding is so against the great weight and preponderance of the evidence that the verdict was manifestly unjust. Miller v. Kendall, 804 S.W.2d 933, 939 (Tex. App.-Houston [1st Dist.] 1990, no writ). Furthermore, the jury, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id.
A plaintiff in an implied warranty of merchantability case has the burden of proving that goods were defective at the time that they left the manufacturer's possession. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 444 (Tex. 1989). Goods are defective if they are not fit for the ordinary purpose for which they are to be used. See Tex. Bus. Com. Code Ann. § 2.314(b)(3) (Vernon 2002).
Here, it is true that Ryan testified that appellants had used similar heat exchangers on their "crew boats" in the past and had never experienced any problems with them. It is also true that appellants' expert testified that the holes in the tubes were produced by American Industrial's manufacturing process. However, American Industrial's expert testified that the holes in the tubes were caused by appellants' failure to maintain the tubes and to ensure proper "cathodic protection." Also, Sariri testified that American Industrial had never manufactured a "failed" tube, and he believed that the tubes in this case "failed" because of appellants' improper maintenance.
What weight to give contradictory testimonial evidence is within the sole province of the jury. Miller, 804 S.W.2d at 939. Thus, the jury was free to believe or disbelieve all or any part of the testimony of appellants' or American Industrial's witnesses concerning the cause of the leak in the tubes. We may not substitute our opinion for that of the jury. Hebert, 754 S.W.2d at 144.
After reviewing the record, we cannot conclude that the jury's verdict was "contrary to the overwhelming weight and preponderance of the evidence." Accordingly, we hold that the evidence was factually sufficient to support the jury's verdict.
We overrule appellants' sole point of error.
Conclusion
We affirm the judgment of the trial court.