concurring and dissenting.
I concur with the majority opinion in remanding the gross negligence issue for a new trial; however, I dissent from the af-firmance of the negligence findings based on a failure to warn JFW, and dissent from the majority finding that the evidence was legally sufficient to support the jury’s finding of gross negligence.
I believe our review on remand should include whether Alcoa satisfied its duty to warn Aim by adequately warning Seven-Up. The supreme court's remand directs this court: “... to consider Alcoa’s factual insufficiency points regarding the adequacy of its warning of the hazard of cap blow off to JFW_” Alm v. Aluminum Co. of America, 717 S.W.2d 588, 595 (Tex. 1986). (Emphasis added.)
The supreme court concluded Alcoa had a duty to adequately warn the consumer, but held that duty could be discharged by adequately warning “the intermediary.” Alm v. Aluminum Co. of America, 717 S.W.2d at 595. However, Seven-Up is the only intermediary with the authority and the means to include a warning on the bottle or the bottle cap. I do not believe the Supreme Court intentionally limited our review to the warnings Alcoa gave JFW.
Pursuant to the franchise agreement between Seven-Up and JFW, only Seven-Up had control of package shapes, components, labels, graphics and contents. Aim argued that Seven-Up controlled warning labels, and Aim vigorously argued to this court that Alcoa could not satisfy its duty to warn Aim by warning JFW, because Alcoa had a duty to warn Seven-Up. Yet, when Alcoa presented evidence of its warnings to Seven-Up, Aim objected to the testimony and the evidence on the ground that it was irrelevant and self-serving. That evidence included a graphic 35mm slide presentation showing the danger inherent in cap blow-off. The evidence further indicated that Alcoa showed the slide presentation to Seven-Up personnel in Texas and in many other states. The presentation was made to the Seven-Up Vice-Presi*487dent of Quality Control, Manager of Field Technical Services, Manager of Package Engineering, Manager of Contract Bottling and Canning, Midwestern Technical Manager, Eastern Technical Manager, South Central Technical Manager, Western Technical Manager, Quality Control Manager and others. The slide presentation was also shown to Pepsi-Cola, R.C. Cola, Anhauser-Busch, Contract Beverage Packagers, Inc. and others. The evidence showed that presentations were also arranged for Vess Beverages, Dad’s Root Beer and Coca-Cola. Alcoa presented evidence of many office memos to bottlers warning of the hazards of the improper application of closures, improper adjustment of bottling machines and safety in general. Letters from Seven-Up personnel thanking Alcoa for the presentation and for enlightening Seven-Up, as well as letters from Alcoa requesting permission to show the slide presentation to other Seven-Up bottlers, were admitted into evidence.
Alcoa does not own the bottles, the caps or their contents. Alcoa has no means by which it can adequately warn a consumer of the hazards of a misapplied bottle cap. Therefore, it prepared a slide presentation depicting the danger and showed it to the intermediary, Seven-Up, who alone possessed the means by which this warning could be passed on to a potential consumer.
Because Aim objected to the evidence of Alcoa’s warnings to Seven-Up, and because Aim succeeded in limiting the jury’s application of such evidence to the facts of this case, the jury was denied the opportunity to determine if Alcoa’s warnings to Seven-Up were adequate to discharge its duty to warn Aim. Therefore, I would also remand the issue of ordinary negligence to the trial court for a new trial consistent with the new rule fashioned by the Supreme Court. Alm v. Aluminum Co. of America, 717 S.W.2d 588, 592 (Tex.1986).