TENNEY v. SEVEN-UP CO.

No. 3313.

584 P.2d 205 (1978)

92 N.M. 158

David S. TENNEY, Debra L. Tenney and David Lane Tenney, a minor, by his next friend, David S. Tenney, Plaintiffs-Appellees, v. The SEVEN-UP COMPANY, and Seven-Up Bottling Company, Defendants-Appellants.

Court of Appeals of New Mexico.

Writ of Certiorari Denied September 19, 1978.


Attorney(s) appearing for the Case

Joe L. McClaugherty, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for defendants-appellants.

Ken Cullen, Knott & Associates, Albuquerque, for plaintiffs-appellees.


OPINION

HERNANDEZ, Judge.

Plaintiffs' complaint pled alternatively strict products liability and negligence. However, at trial plaintiffs abandoned the theory of negligence and stipulated that the only theory under which they were proceeding was strict products liability. Plaintiffs prevailed and the defendants appeal alleging two points of error; the first of "which is dispositive of this appeal ... neither the court's findings of fact nor the evidence...

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