Tenney v. Seven-Up Co.

I dissent.

Evidence little, damages small, issues and law in the court below formless, and the change of position taken on this appeal, proves the inadequacy in the presentation, both in the trial court and on this appeal.

The first count in plaintiffs’ complaint proceeded on the strict liability theory that a bottle of 7-Up was in an unwholesome condition, unreasonably dangerous. The second count proceeded on the theory of negligence. During the trial plaintiffs abandoned their claim of negligence without explanation. Plaintiffs’ attorney apparently overlooked the New Mexico Food Act, §…