dissenting.
After considering Aim’s motion for rehearing, I have become convinced that (1) this court was wrong in holding the evidence is factually insufficient to support the jury findings of negligence and proximate cause against Alcoa and (2) Aim’s judgment against Alcoa should be affirmed.
In this court’s opinion of January 8,1985, we held that Alcoa had a duty to give an adequate warning but that such duty did not extend to Aim. We said Alcoa’s duty to warn ended with J.F.W. and that J.F.W. then had the duty to communicate the warning to consumers such as Aim. Reasons given for that holding were: (1) Alcoa had no control over the labelling of the soft drinks and (2) the bottler is the one pos*384sessing adequate means to pass warnings on to consumers. However, as Aim points out in his motion for rehearing, there is evidence in the record that Alcoa could have effectuated a warning because of its control over the patents involved in the closure system and its licensing arrangements which were required for the system to be used. Alcoa could have required a warning to be placed on the beverage container. Aim also contends in his motion for rehearing that our statement that the bottler is the one possessing adequate means to pass warnings on to consumers is irrelevant in light of Alcoa’s ability to warn and is factually incorrect because the undisputed evidence shows that the parent soft drink corporation, not the bottler, controls the beverage labels. I must agree with Aim concerning these contentions. This leads me to conclude that Alcoa’s duty to warn extended to Aim and that the evidence is factually sufficient to support a jury finding that Alcoa was negligent in failing to warn Aim and such negligence was a proximate cause of the occurrence made the basis of Aim’s suit. The presence of an intermediate party, the bottler, will not by itself relieve the seller of the duty to warn Aim. Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1091 (5th Cir.1973).
I am also now convinced that there was a fact issue for the jury on the question of whether Alcoa negligently failed to give an adequate warning to J.F.W. and that we were wrong in holding there was an implied jury finding that the warning was adequate. The jury finding that J.F.W. was negligent and its negligence was a proximate cause of Aim’s injuries do not necessarily imply a finding that Alcoa gave J.F.W. an adequate warning of the danger. Under the evidence in this ease and the broad form of the special issue on negligence, I believe the jury finding of negligence on the part of Alcoa includes a finding that Alcoa’s negligence was in its failure to give an adequate warning to J.F.W.. On such issue, I think the evidence is sufficient to support such finding. Furthermore, I do not believe that the jury finding of negligence on the part of J.F.W. is necessarily predicated on an implied finding that Alcoa gave an adequate warning to J.F.W.
For the reasons stated, I disagree with the result reached by the majority, with the majority’s opinion of January 3, 1985, and the majority’s opinion on motion for rehearing. Therefore, I respectfully note my dissent.