*1 ROACH-BISSONNET, INC., JACK Petitioner,
v. PUSKAR, Respondent.
Daniel J.
No. A-1 1083.
Supreme Court Texas.
March 1967. July 5,
Rehearing Denied 1967. Freeman, Crooker, Bates &
Fulbright, Houston, for Gayle, Jr., Jaworski, Gibson petitioner. Kronzer, Abraham, & Watkins
Brown, Houston, Kronzer, Steely, W. James respondent. Coates, Finis Shepherd
Baker, Botts, & Co. Houston, Motor Ford Cowan, E. *2 Road, is about Alief WALKER, across north Justice. wide, across a ditch and 33 feet arising products case This is a seriously in- Plaintiff was embankment. Recovery is out of a accident. one-car accident. jured and sought against the manufacturer warranty, grounds purchased dealer on of breach of When the automobile negligent misrepresentation, negligence Roach and from 2, 1959,plaintiff received May repair. refusing part hold that neither warranty We that each its dealer’s legally responsible the acci- use defendant is for under normal be “free vehicle would dent, and because the evidence is insufficient material defects in and service (1) as a ninety (90) matter of law to show: workmanship period for false, prod- relied delivery days from the date of by (2) Purchaser, product accident caused has until such uct to repair by any existing failure defect distance operated driven, used or for at the time miles, the automobile was delivered. (4,000) whichever of four thousand warranty was event first shall occur.” Puskar, plaintiff, Daniel sustained limita- subject J. certain expressly made personal injuries driving alone in a while are not material tions and conditions which 1959 Thunderbird automobile manufactured also the case. Plaintiff under our view of pur- Company. Ford Motor He had manual received from Roach an owner’s chased the vehicle new from Roach- describing Jack and various issued Ford Bissonnet, Inc., hereinafter referred to as The relevant features of automobile. brought against Roach. Plaintiff this suit portions follows: of this manual are as Ford damages and Roach to for recover injuries. judg- The trial court rendered POWER “MASTER-GUIDE ment on the against verdict in his favor STEERING Roach, jointly severally, Ford and $60,815.33. Appeals The Court of Civil “Up needed to 75% of effort Roach, affirmed as to but reversed your taken over steer Thunderbird is judgment trial court and rendered Yet, Steering. Master-Guide Power judgment plaintiff nothing take operated steering optional hydraulically Puskar, Ford. Ford Motor Co. v. 394 S.W. system you to retain the natural allows 2d 1. wheel, particularly feel along the you’re driving your shortly accident occurred after mid- open highway. night at the T-intersection of Roark and Alief County. Roads Harris On the Steering pro- Power “Master-Guide question, plaintiff driving occasion in only your assist vides northerly Thunderbird in a direction running. How- engine is Thunderbird’s Road, on Roark in- graveled road which ever, stopped, or your engine if tersects but does not cross Alief Road. operat- power system not be if the plaintiff When was some 125 to 200 feet normally, you’ll ing have safe intersection, stop south of the saw the car with con- your full control of sign controlling entering vehicles Alief steering.” ventional thereupon heavy Road. appli- He made a brakes, cation of his but there was little BRAKES SURE POWER “SWIFT response. or no When the automobile optional intersection, attempted pedal for the reached the “The low-level Power right vacuum-operated to turn Sure Swift wheel approxi- operate move a few inches. Brakes vehicle, pressure than mately unable to turn the less continued one-third car, plaintiff relied Roach’s pedal ing for most conventional brake normal was free from stops. that the vehicle
defects, from de- (2) that it was not free “If, reason, Sure Power Swift fects, proximate cause (3) this was a completely their brake- Brakes should lose accident; (4) that Ford and *3 assisting power, your con- Thunderbird’s that the en- represented plaintiff to when hydraulic system re- ventional brake power stopped or gine of the automobile fully main effective and it will take over normally, he operating not was safely permit you stop to car to steering and full control have safe would you push pedal.’’ the brake down steering, (5) of the car with conventional representa- plaintiff upon such that relied Plaintiff read the and dealer’s applied to tion, untrue as (6) which was understood, be- the owner’s manual. He speed at which at the delivery lieved and After relied them. moving just before the acci- the car was automobile, proceeded it of the he to drive repre- dent, making of the (7-8) and normally operated and found that it with a proximate and a negligence sentation was exceptions. few The died once while motor accident; Ford and (9) that of the cause driveway, was backing out of the and plaintiff if the represented that Roach to happened on several occa- thing lost their automobile brakes applied sions when the brakes were or operating power or were assisting brake idling when the motor was while the car re- normally, brakes would conventional standing in was traffic. Plaintiff noticed stop permit him to fully to main effective applying that extra effort in was up- relied plaintiff safely, (10) that the car died, the brakes when the motor but he was the same (11) but representation, on such moving slowly so that this did not make pre- untrue not shown to was much difference. There was no reason to evidence; (14) that ponderance of the turn the these oc- wheel on just before died the automobile engine of casions. occurred, collision, (15) and efficiency was re- braking and telephoned Plaintiff Roach times several plaintiff was an extent duced to such complain performance about the under the car safely control unable to automobile. was assured that was (16) existing, but then circumstances operating normally keep and was told to by preponderance of was not established necessary adjustments a list so the could to or known this was the evidence brought be made when the car was and by Ford known should have May checkup. Saturday, the 1000-mile On delivery of the Roach; after (20) that 30th, plaintiff telephoned again Roach and application full car, engine died complained vigorously nothing had because requested brakes, plaintiff (21) that been done. He asked to be allowed adjustments repairs or to make bring in, but was told that Roach that Roach (22) dying, and prevent such Monday. could not service then or on adjust- repairs or to make refused bring Roach instructed him the car and negligence ments, was (23-24) which Tuesday, agreed which he to do. accident. proximate cause early accident occurred in the hours of Sun- day, May days 1959. This was 29 after (42) that further found jury of an un- plain- Roach delivered not the result the automobile “collision” plaintiff was accident, (25) that tiff, 1,000 avoidable and it had been driven less than (26) acted emergency acting under an time. miles ordinary prudence would person of aas circumstances, (37) that primary liability under the By their answers to the operating issues, risk involved purchas- was some jury (1) found: car, stopped prior (38) firing just of the automobile that it was established It then observed preponderance the evidence the accident. explana- apprecia- only possible plaintiff motor knowledge failure full to find: tion afforded tion the risks. refused also steering, keep loss of (29) that failed prop- entitled proper make concluded (27) lookout or failed to probably brakes, er find that application (31) of his that he the accident if Roach had made driving speed (33) under have occurred excessive necessary pre- liquor, adjustments repairs that his (35) influence of dying. opinion (40) bring vent the our stop stop sign failure at the by the supported latter conclusion is inspection to Roach for and ad- justment negligence. record this case. *4 the testimony There no direct that judgment against The of court the trial engine died before the automobile ran upon warranty Roach rested thus breach of the In parte embankment. an ex statement by as jury’s established the answers to evidence, plaintiff which was introduced in Special 1-3, negligent Issues Nos. mis- that said not know the motor did whether the established answers died but Three felt at the time it had. that Special 4-8, negligent Issues Nos. expert witnesses testified. Plaintiff offered repair failure as established Professor O. Melton of the Universi- James Special answers to 20-24. The Issues Nos. ty of Ford and countered Oklahoma. Roach judgment against upon Ford was based testimony with the of Mr. Richard J.
negligent misrepresentation as established Martin. Chwalek and Professor Robert E. by the answers to Special Issues 4-8. Nos. say, None of these witnesses undertook Plaintiff insists that against judgment question or response/to hypothetical a may Ford upon also rest of breach an im- by plain- otherwise, that the facts as related plied warranty fitness, Court ceased engine tiff that the indicated Appeals Civil concluded that he had not firing. expressed Professor Melton relied that theory in the trial court. difficulty experi- opinion plaintiff that The intermediate court held that there is probably additional enced was due to “an no to show any misrepresentation evidence input have of air that you into the so regarding the steering mechanism of the 1 He a loss in some manner.” vacuum automobile, and that limiting language upon rea- express opinion did not based the dealer’s was effective to probability sonable as to the mechanical exonerate Roach plain- from air or input cause of additional injuries tiff’s based upon breach of such loss of vacuum. warranty. upheld judgment against failed is jury’s findings engine basis of conclusion that drawn itself an be inference which must proximately the accident was caused with plaintiff’s previous experience repair. negligent dealer’s failure to and, importantly, the loss more Once question. the occasion
An accurate and rather full statement of reached, testimony given that conclusion is by the various wit- engine say nesses circle and opinion go found in the us full power assist Appeals. Court of failure the loss of the Civil caused upholding the steering, judgment against Roach, but even for the brakes intermediate recovery against began court a premise enough. To sustain there is failure probative theory negligent circumstantial force Roach on step and jury’s to support finding repair, take one further engine we must throughout I. opinion is Emphasis supplied. on; before,
say whereas, engine engine failure was the cause of and so very inability stop There was little effort or turn the ve- could not. proof engine hicle. It is here fails. to turn the corner when engine stopped, evi- running, but when undisputed evidence shows that a and it dently power steering went out power-equipped 1959 Thunderbird has course, and, just caught guard off me vacuum which allows the driver reservoir happened. control nothing I had power-assisted ap- to make two or three around, no other cars car. There were plications of the brakes after the very definite difference but there was stops turning. Even when this reservoir is pull in the of the car.” pressure, filled with air at outside which, has if he driver conventional brakes appraiser An examined the automo- who applies pedal normally to the brake the force bile the accident noticed dent after equipped for a vehicle assembly. When valve power, stop his him to slow or will enable wit- dent, which the asked to describe quickly effectively automobile as wreck, he by the ness assumed was caused appears from with the assist. It also answered: undisputed evidence that the If damaged “It from blow. equipped gear Thunderbird ratio of correctly, dam- memory me it was *5 serves power steering with is the same that of any- aged a blow of concrete from or— equipped. one so In either vehicle one a way, you like if run into it was marked pound applied at the rim of the of force It is concrete, you it. curb will skin or produces pounds of force steering wheel 30 indentated but it is an smooth skin pitman at the end arm. When skin.” speed 30 miles moving automobile is at a hour, pounds of force approximately an assembly thought the valve witness required to pitman at the end of the arm is replaced. appears It would have to be is turn the front If the vehicle wheels. evidence, however, undisputed that no turning equipped power steering, power brak- repairs made to either the were in causes wheel either direction the ac- power steering system after ing or as- linkage to move and actuates valve operated cident, yet and the automobile pressure sembly. permits under This fluid difficulty in the satisfactorily with no cylinder, appropriate side of a to flow to the only in ei- steering. The defect brakes or supplies part force which of the workmanship fairly raised ther material or turn the front wheels. when having been the evidence an was purchased the automobile Ap- pointed
As out Court Civil idle-speed screw improper adjustment of the peals, is no evidence defect reasona- on the could sys- carburetor. The braking the conventional idling rough bly conclude that this caused tems or assist either that would our speeds, but failure at engine low operate. cause the not to Plaintiff sup- question whether the difficulty had no with the brakes or it caused port the further conclusion steering prior accident. A friend who injuries. plaintiff’s the accident and driving the on one occasion was automobile when the that he had trouble motor died said automobile The motor of explain: steering, then on to went previous died occasions. on or six five backing out This when he was
“It first time I had occurred wasn’t the driven driveway home, up to it, pulling power steering. at and I was used to standing stop sign, out, applying goes All of a it it was sudden when Accord- idling. in traffic the motor quite change, and I could feel the testimony, ing to his “two instances weight of the weight of the car and pounds, and was tall, weighed 155 or 160 dur- was in traffic can of for sure think had both He physical condition. good happen this would idling,” and “when ing both used steering wheel and hands on the motion, it was car was when the Al- turn automobile. attempting too make it didn’t a minute motion wheel with he though “turned plain- the basis much difference.” On had, maximum exerting the everything” he died when then, the experience tiff’s motor capable, physically he effort mov- the vehicle idling it was only two or some would move wheel condi- slowly. these Neither of ing very then locked three inches. said engine tions obtained the time the thus able not turn further. Plaintiff prior the accident. stopped just to have bit,” only very slight the car “a to turn driving that he was Plaintiff testified the em- Alief Road and went across ob- about 30 or 35 miles an when he hour bankment. may served road He intersection. estimate, in this high somewhat experimental The witness Chwalek is engine turning, is clear that Corpora- employed engineer by the Bendix fairly at a moving, automobile was tion, which manufactured steer- rapid rate. the circumstances These ing system Thunderbird. used on the 1959 under which motor failure had occurred power-equipped testified in the past. greater significance Of even moving gear at a 1959 Thunderbird is plaintiff got slight “a fact hour, the speed of to 35 miles an response” applied the when he brakes. first firing turning though is not will be Although plaintiff pushed the brake operat- and the will thus pedal could, as hard as the wheels of the Martin, ing. associate Professor who is skid; speed did not lock and professor Engineering Mechanical reduced. the facts Under Technological College, had Texas made *6 plaintiff, as related by the motor almost 1959 number of tests with a Thunderbird. certainly turning was in- firing moving He found that when the was vehicle stant applied, the brakes were and there per miles gear 20 to 50 speeds from no reasonable concluding basis hour, affect ignition off the not turning did initial malfunction was caused brakes power steer- power either brakes or by engine may failure. motor well while the ing. Professor Melton said that stopped shortly firing after the brakes (cid:127) likely turning the ve- engine was be were applied, first but the record is devoid hour, might moving 35 hide was miles evidence to the belief that warrant per hour. might turning be at 30 miles have.impaired this would or even could light When evidence is viewed operation affected the conventional plaintiff, think the most favorable we clear, moreover, brakes. It is per- that a power entitled to conclude that the son of and physical size condi- steering operating at- making tion would difficulty have no not, does tempted to make turn. This his application a full conventional however, inability make the explain help power without steering. turn with conventional account, dying assist. A engine does therefore, inability stop the auto- for his responsible de- Mr. Chwalek mobile embankment. before ran power velopment steering He testi- used on the 1959 Thunderbird.
When the automobile reached the inter- equipment, developing fied that in con- section, plaintiff attempted to turn to the right. problems given might He was about 5 inches sideration feet 8½
268 engine stopped encountered if the firing, have, this would and the results of these
Tests were made to determine what effect tests were as follows:
Speed mph mph of vehicle mph mph 30 5 required Effort steering
turn wheel power steering
with operative 3-6 lbs. 3-6 lbs. 3-6 lbs. lbs. 6-10 required Effort steering
turn wheel power steering
with
on vehicle but not
operative lbs. 4-8 8-15 lbs. 12-18 lbs. 50 lbs.
approx. required Effort steering
turn wheel
on Thunderbird not
equipped power with 4-8 lbs. 8-15 lbs. lbs. lbs. 12-18 SO
approx. hand, On the Melton tes- other Professor According to the tests conducted to steer a tified that is more difficult witness, perceptible there is no difference power-equipped automobile when required amount of force to turn the have the than one which does not dead of a wheel 1959 Thunderbird is due to assist. He stated that this equipped op- with steering that is not required to move the additional force erating and the amount to turn linkage. through the fluid steering wheel of such a he had tested The witness also said that equipped power steering. This rack grease on a 1959 Thunderbird raised confirmed tests made on a Thunder- off, and that the its motor *7 bird Professor Martin. He found the little wheel not be turned with could power-equipped Thunderbird, when 1959 meas- finger. that he had He “believed” moving gear with the in neutral and the “re- did not required, ured the force but ignition off, fact, turned I believe “operated just a member In like the numbers. anal- statistical these numbers went our car with conventional and conven- ysis.” tional brakes.” To ad- determine whether required ditional force was to move the Melton’s testi- According to Professor
power steering through linkage fluid necessary a con- mony, on “the normal force when the operating, he was not pounds at the 12 car is about ventional placed the grease vehicle on a rack its with wheel, power pounds about with 7 wheels raised off the floor. was able to assisting, power and with the spin the steering wheel from one extreme to the automo- up, depending run on will the other with finger his little when the itself, pounds and as 18 to 36 as much bile engine was running and when was in- steering is beyond power when running. According testimony, to his there averages operative.” figures These are was no measurable difference the amount by of a series of tests made witness required. of force no records He had various automobiles.
269 engine He was unable him, give dead. hour with its the tests with was unable additional any opinion express readings particular under a vehicle turn such required to any particular speed. automobiles force interrogated those circumstances. When a and a 1960 tested included a guess answered “I would Thunderbird, they point, an un- he also included thirty twenty or maybe up it could take made Gen- disclosed number of vehicles pounds, extra but I don’t know.” The appears Motors. the evidence eral as to what only speculate then could equipped that some with automobiles that “consid- steering gear meant when said steering do witness not have a erably steer effort” is make when more ratio as the identical and model engine dead power-equipped its equipped vehicle with steering. Aside equipped than similar vehicle the facts con- Thunderbirds, from the three may, Be that there assist. cerning steering gear of the ve- ratios nothing testimony in his or elsewhere are not hicles tested Professor Melton support engine record to the conclusion testimony And as to the shown. while failure a 1959 Thun- probably render quite speed at tests made is which the were derbird, approaching moving any speed contradictory,2 that at vague and is clear hour, or 35 an difficult to steer miles so perhaps readings least some and all of the physical that a size and driver of standing were taken were while the vehicles guide and turn condition would be unable to still. steering. the same with conventional Under evidence, simply dying will figures Professor Melton’s tests and are plaintiff’s inability to turn account for pow- determining of no thus value in how inch- per- more or three er-equipped might wheel than two Thunderbird form moving when at 30 miles an or 35 es. speeds you running
2. Q. What were these A. In some cases. given sir, you tests at? Well, me set Q. one through figures: twelve, eighteen seven, A. We ran these series of of thirty-six. speeds. probably figures different I make could ob- Were those three you speeds? this much more clear to with some- tained at different explanation. average figures. what A. These are Well, sir, you Average Q. afforded an of what? Q. opportunity to do that. I am ask- What A. a series tests. Of ing you speeds using you you averaging? is: What were Q. What are you figures twelve, got averaging these A. I values. am eighteen thirty-six you seven and different, Now, figures mentioned a little earlier? Q. all these speeds A. depending speed believe that these were automobile on what essentially Well, were, going, they? in some aren’t at — cases, stopped. Yes, vehicles that were A. sir. cases, they asking you very other were somewhere be- Q. I am sim- What thirty forty question: ple tween miles an hour. How auto- fast you figures? going got There were a series of tests. those mobile *8 figures essentially are A. fixed These figures you given figures. words, Q. These have us: In other the twelve, eighteen thirty-six, moving. seven and isn’t stopped, exactly those were done with vehicles I have been is what Q. That they? trying weren’t the auto- to find out. This is when necessarily. standing A. Not still. mobile is they? Well, necessarily Q. were true. A. That is not you just they figures say A. Not all of them. Q. Didn’t are fixed, car is fixed and that when the running? And of Q. is the truth matter that the the not figures twelve, eight- Essentially, yes. those of and seven A. thirty-six, een to the were obtained with sitting automobile dead still? idle-speed SMITH, The of the carburetor screw (dissenting). Justice may properly adjusted respectfully I dissent. plaintiff, the was delivered to automobile existing at that only but that is the defect Puskar recognizes that Court the While jury reasonably time which the could find Roach, recovery against seeks suit opinion under the record. our manufacturer, on Ford, dealer, the and the belief there no to warrant the evidence negli- warranty and of breach of grounds by that the accident caused this defect prop- it has failed gent misrepresentation, by repair or Roach’s failure to the same. containing the instruments erly interpret proof cause the Without as to what did the evi- to evaluate representations and function, and of findings supports the dence which jury way knowing had no of whether Roach of responsibility fix the jury which failure of either due to a defect representations insofar as and Ford Liability car at delivery. the time of its representa- Manual” the “Owner’s may theory predicated upon any not be then are concerned. Roach tions made negligent of either breach of mis- only makes the same repair. refusal The Court Ap- Civil the Court of take that made response Spe- also found in accepts argument apparently peals, but cial Issue No. way only Puskar Ford that concerning manual owner’s finding secure a recover is to establish In discussing representa- false. was defective Thunderbird tion, Appeals the Court of Civil stated that manufac- time it left control plain manual made it more 75% turer. effort would be operate note of the This takes dissent was not based relating Puskar’s cause action working. A fair more accurate con- negligence of struction on the ground of the manual is that the driver refusing repair Thunderbird will find it necessary up to exert to four to his times related much far evidence is effort so as such to steer when the recovery, war- major grounds breach of Subject relatively is lost.3 to this If misrepresentation. correction, ranty negligent minor agree we with the Court any principal Puskar’s Appeals of Civil there is doubt as to for the set out in reasons disappear opinion contentions, its such doubt will sup- there is no evidence to testi- port reading pleadings Puskar’s jury’s Special answer Issue No. mony beginning pages the first 6. This leads to the conclusion judg- ment of facts.' statement have been rendered in favor of both Roach and Ford. proof recognizes no Puskar Ap- judgment of the Court of Civil in the Thunder- in this defect record peals accordingly to re- modified so as Pus- time it left Ford’s control. bird trial court and judgment verse contends, however, kar that defectiveness nothing. render judgment take its design Thunderbird modified, As the Court judgment so question is not the before manufacture Appeals of Civil is affirmed. contention agree Court. with Puskar’s Ford do
that the cases relied POPE, mis- JJ., dissenting. theory negligent SMITH and limit false “up steering, supplies 3. The manual driver the remain- *9 states of the 75% your ing power the assist effort needed to steer Thunder- When the 25%. lost, the bird furnish of is taken over the Master-Guide the driver must 100% Steering.” required effort, as Power of re- or four times as much If the 75% quired power operative. supplied by power effort with the assist running; How- engine is or Thunderbird’s design defects representation to ever, stopped or your engine the Thunderbird. of manufacture if operat- not he power system should if ing trial of the very beginning In the normally, will have you safe to show introduced testimony of Puskar was car con- with your control sure of background, origin, history of Puskar’s a [Emphasis steering. ventional added.] The a musician. experience as training low brakes. The power sure “Swift the Thunderbird testimony regard oper- optional of vacuum level bevel April, immediately thereafter. begins system will ated swift sure brake responsible his meet- 1959, for friend operate approximately one-third with evi- representative. ing a Roach with brake pressure less than conventional purchased the 1959 shows that Puskar dence stops. pedal most normal If for 1959; May 2, that Don on Thunderbird should reason sure swift who for Roach Ferguson was the salesman assisting completely lose their brake testimony, Puskar, in his handled the sale. power, your Thunderbird’s conventional cause basis for his presented primary will remain hydraulic fully brake Early in connection damages. action for effective, permit and it over will take appears in testimony with push when you stop safely car you No. of facts exhibit statement [Emphasis pedal.” down on brake 2, warranty. This designated as a dealer added.] to Puskar at delivered delivery time the Thunderbird. Pus- testimony gave Puskar attorney jury immediately kar’s read to warranty. dealer’s part warranty, of the dealer’s bearing To all recite reads: question jury allowed which the purchaser, “The dealer warrants unduly lengthen hear dissent. this except provided, each hereinafter However, some set of the evidence will be part prod- each Company Ford Motor misrepresentations in out to demonstrate purchaser, uct sold dealer to emphasized by the “Owner’s Manual” were free, service, under normal use and from representatives of Roach both before and workmanship, defect materials and after the sale of the As a Thunderbird. period days de- date of consequence it negligently represented livery product purchaser of such to Puskar auto- that when the product used, driven, until such has question stopped if the mobile operated miles, 4,000 for a distance of power system operating not be nor- whichever event first shall occur.” mally that he would still have safe and full control Thunderbird Immediately thereafter, Puskar intro- representa- steering. conventional its Manual”, duced exhibit No. the “Owner’s harmony tions made were in salesman part read to begin- thereof language interpretation Puskar’s of the ning page 26 (of the manual) as follows: relied “Owner’s Manual”. Puskar guide “Master power steering. Up upon representations only all such your 75% the effort needed steer rely purchase time of but continued to Thunderbird taken by master over is. thereon until time of the accident. guide power steering, yet optional testimony Puskar’s follows: hydraulically operated steering allows you to retain natural feel of “When the automobile was delivered wheel, you particularly he read Manual under- Owner’s driving your along high- open He them. stood the instructions. believed way. guide power pro- Master He no He relied the statements. vides your assist read reason to disbelieve them. also *10 it, assurances, warranty, over the believed purpose understood but not for the it, up it had no proving warranty. relied reason an ‘oral’ disbelieve it. “Ferguson him that the auto- reassured ‘breaking-in’ stage, was in the mobile “When he first obtained the car it the automobile would be handled operate ‘fairly seemed to normal’ with Department Roach Service Jack exceptions. thing few One noticed he ‘upon proper Ferguson time’. told him shortly began after he drive was problem ‘just was course he ‘would that the automobile was realize breaking in a that these new automobile idling unusually’. He described this fur- things happen; I have that would ther ‘idling roughly.’ kind He nothing worry point about.’ At this likened it to a motor boat objection upon Court overruled an idling was ‘rocking’. sort of It grounds that evidence indicated an would cause It vibrations inside the car. warranty’. ‘oral acted like was ‘idle tuned’. On several occasions backing he Ferguson “The first conversation with carport driveway the ‘automobile approximately occurred he week after happened stalled on me.’ This several purchased automobile, possibly had times thereafter in the course of slow days. stalling ten on continued sev- congested traffic. occasions,, frustrating eral and ‘it awas situation.’ He called back and talked to it, did not “He know what caused Ferguson days a few to a week before the being in schooled mechanics. The first accident, 20, May May May 21 or 22. time happened this he started He did not a thousand miles on the up the pull up car. When he would to a again auto. He was reassured and told to stop brakes, sign, apply idling, or in anything thought ‘write down that I standing traffic, stop. idling, in it would car, the matter I with the and when would It happened several times. On these my check-up, take in for then I would occasions, die, when the motor would he people this notebook to the would have no opportunity real to use Department, time, Service he power steering brakes or be- told I me should talk to someone happened very cause it the course Department’. Service He did talk to driving. slow He had no ‘test chance to Department, someone in Service it out’. The would take an extra he could not his name. It was remember special stop effort the automobile on something Manager like Sales these occasions. On none of these other handling someone connected with cus- occasions had he opportunity had tomers. necessity to turn the wheel. None of Department people “The in the Service these failures occurred in an emer- very nice T were and stated that gency. my check-up until 1000-mile wait care of things would have all these taken “He called Roach and talked to Jack at one time’. to drive continued Ferguson, and him the he .told troubles car car after conversation. The this Ferguson had. reassured him that approximately continued to act ‘operating normally’, get- ‘it was way improve. It con- and did ting kinks speak, out of it so to tinued to die on him. again, once he the Ford mentioned product perfect day May, letter automobile.’ made “On the 30th telephone The court admitted testimony for the another call to Jack limited showing why purpose he con- car taken care getting purpose Saturday, tinued to drive the view of these of. was before lunch on a *11 by the Melton, called a witness in Sales L. and talked to someone the James as Puskar, in substance Department. displeased plaintiff, testified ‘very He was way had been follows: with the the automobile ** * hoping to handling, University the professor “He at awas fixed, up, or repaired, tuned have the engineer. consulting and a of Oklahoma operating in get it took to whatever engi- the familiar with He stated he again He condition.’ was once reassured power concerning neering principles way acting new the car was the steering of the power brakes and that, being ‘I was automobile would and system power The Thunderbird. possibly presumptuous a little or a little separate, system using a is a ‘closed’ driving car and I nervous about a new the pumping reservoir in distinguishable ” worry shouldn’t it.’ about The brak- system into a second reservoir. leading Puskar described events operated essentially vacuum ing system is accident as follows: power. For either assisting it applies necessary is operate properly it or both to “I I front of drove until me saw operating. car be intersection, an I come to find which have out that this is the intersection of Ruark attorney] “Ralph [Miller — Realizing Aleif Road. that this was con- question him posed to hypothetical intersection, an right front of me the accident cerning the manner which stop, end, was a dead a dead I to started opinion an as to some occurred and he had brakes, apply my got time I which no possible causes for the malfunction- response, and realizing that I could not brakes steering wheel and the ing of the stop the automobile or handle it question. He had on the occasion way I felt time the I should be able probability opinion as to the reasonable it, stepped handle I on the brake and I felt difficulty the as to the cause of the might as I though against be pushing prob- plaintiff experienced. There was floorboard, with response no ably input air into an additional brake; ahead, and still I moving started system you had of vacuum so that a loss to turn the wheel. was able to turn I you give lean mixture which tends only slightly, slight wheel and this turn He power result. so that a loss of can being and me stop able to the automo- power further then said ‘this loss of bile, I headed into ditch and em- small as far as tend the condition aggravate my bankment left front side of concerned, power since automobile. directly the manifold connected to through is adminis- mixture applied first “When he the brakes there Additionally, ‘in cylinders.’ tered practically response. no The brakes gear power, depending on the loss seemed a little ‘spongey, and then it was drain, power itself, applied ration as I though pushing against may Its engine may not function. happened.' floorboard. Nothing It did speed might drop below rotational speed. reduce It did not cause the necessary produce the neces- minimum brakes or wheels to He lock. react, pressure sary able to turn the slightly wheel power concerned.’ far get ‘after I seemed out in the middle of the road.’ then He described when he was directly system tied “The brake turning able to make a movement in the manifold, is some such that if there following manner: have a any type, such that we failure of “ produced got that is ‘When I loss of vacuum front end of the car road, air force, guess,
out
by just
drawing
fuel,
I
”
mixing
through
was able to
little
carburetor and
just
turn it
bit.’
fuel,
mixing,
The
trial court
we do have
evidence introduced
some
that,
against
get
presents
joint
in addition
then we
excess
a case of
system.
positively
air in
Pus-
our
testified Roach and Ford.
absolved
fact
contributory negligence.
that a car with
kar of
*12
operate
as
Thun-
operate
which fails will not
that Puskar continued
easily
as a car
the Thunder-
with
conventional derbird after he realized that
Then,
equipment.
significantly,
not
gave
“idling unusually”,
he
bird was
etc. does
preclude
following testimony:
recovery.
Puskar
not re-
was
quired
operate the
to refuse
continue to
‘Q.
you
I will ask
not it
whether or
precedent
Thunderbird as a condition
considerably
takes
effort
more
his
action on the
maintaining
cause of
put
steering the brakes and
grounds
warranty
negli-
of breach of
effect whenever the motor dies
gent misrepresentation.
on
Puskar relied
equipped
a
on a car that is
with
war-
“Owner’s Manual” and dealer’s
power system, than it
a car
does
ranty
advertising
as well
as
sales
with conventional
public
is suffi-
generally. Such reliance
conventional brakes ?
support
cient to
a cause of action based on
misrepre-
negligent
breach of
Brakes,
steering, yes.
‘A. On
no.
Motor
Inglis
sentations. See
American
v.
explained
follows:
as
Company,
132,
583
3
N.E.2d
Ohio St.2d
209
Products,
(1965),
Yuba
Greenman v.
Power
link-
‘Since we have added additional
Inc.,
697,
57, Cal.Rptr.
P.2d
59 Cal.2d
377
27
ages
valving
cylinder
and a boost
897,
(1962); Lang
901
General Motors
v.
(which
replaced),
cylinder that
was
;
Corporation, N.D.,
(1965)
276 may far argued jured persons turer. that so as the powerless pro- who concerned, position taken dealer is tect themselves. Sales warranties serve holding in contrary purpose this dissent runs to our fitfully (See at best. Pros- Hines, ser, Consumer, Bowman Biscuit Co. of Texas v. Liability Strict 69 370, Such (1952). 1099, 151 251 153 Tex. S.W.2d Yale 1124-1134.) pres- In the L.J. background case, is not the case. The factual ent example, plaintiff was able facts entirely different from the plead prove express warranty an Bowman, regard said in here. we only because he read and relied on the imperfections, hidden as a small wire representations Shopsmith’s rug- must be package, gedness in a the consumer sealed contained the manufacturer’s n the care of the Implicit deemed to have relied on pres- brochure. in the machine’s Thus, manufacturer and market, however, rep- not the wholesaler. ence on the was a doctrine which we refused to extend safely resentation that it would do the by this previously jobs announced for which Under these it was built. Sons, Capps, circumstances, Court in Decker Inc. v. & it should not be control- 828, Tex. 142 A.L.R. ling S.W.2d whether selected the ma- in that (1942). There was contention no chine because of the statements misrepresentations brochure, made case were or because the machine’s pur- appearance *14 “Owner’s Manual” own that belied of excellence read, surface, the understood and relied lurking chaser defect beneath the representations. jurisdic- Cases in other merely because he assumed that it would support my position in addition safely tions which jobs do the was built to do. Co., supra, are: to Baxter Motor controlling v. Ford de- be whether the Co., Worley Mfg. 241 v. Procter & Gamble tails of sale from manufacturer to (1952); 1114, 532 Mo.App. 253 S.W.2d retailer and from to retailer Co., 167 Rogers Toni Home Permanent v. wife were of such one more 244, 612, A.L.R.2d implied St. 147 N.E.2d 75 Ohio act sales warranties Yuba Power (1958); (Civ.Code, Greenman arose. ‘The reme- 1735). v. § oth- Products, Inc., number of supra, injured ought and a dies of not to be consumers depend upon ers. made to the intricacies of (Ketterer law of Armour sales.’ v. quote appropriate from the think it to Co., D.C., 323; 322, v. & 200 P. Klein opinion Power Prod- in Greenman v. Yuba 272, Co., Duchess 14 Cal.2d Sandwich ucts, Inc., by the supra, a decided case 799.) manu- 93 P.2d establish the To California, Supreme in order Court liability facturer’s it was sufficient disposition to point up my views as to plaintiff proved injured he was th^t he made of the case: way in a using while the Shopsmith of a was intended be as a result used “We need not recanvass reasons design defect in manufacture and for imposing strict on the manu- plaintiff made which aware that They fully facturer. have articu- Shopsmith intended its lated (See unsafe cases cited also above. [Emphasis use.” added.] 2 Harper Torts, James, 28.15— §§ 28.16, pp. 1569-1574; Prosser, Lia- Strict Supreme It is clear that the California 1099; bility Consumer, 69 Yale L.J. opinion proposition stands for Court’s Co., Escola v. Bottling Coca Cola 24 Cal. that the was able in Greenman 453, 461, 436, concurring 2d 150 P.2d “only prove express warranty an plead and purpose opinion.) liabiltiy of such repre- on the insure that he read and relied injuries costs of re- because ** proved, just sulting products Puskar defective are borne sentations Greenman, injured while put that he was prod- manufacturers that such in- way was using ucts the Thunderbird in the on market rather than in- portions of of a taken that “as a result Ford and Roach have to be used and tended presented design out and manufacture” evidence of context defect and Thus, arguments they in have suc While Green- thereon. he was aware. which Appeals to that in- cessfully introduced led Court of Civil man in parts interpret adequate representations used hold contained set screws were etc., contrary the inter did the Manual together, the Court Owner’s of machine testimony pretation by language in im- holding Puskar of rest its conclude, Recovery not unreasonable to posing liability. was al- manual. It is strict repre- representation argues, of reliance Puskar lowed because buyer to assure the in the manufacturer’s was intended sentations contained great aid brochure. it failed he would working but that when solely in we look to the evidence When type as he would have the same light jury findings, favorable most buy “if he not been induced had evidence, do, as we are power package.” of Civil Court my opinion, supports findings. There- Appeals test2 has evolved erroneous fore, judgment of the trial court fa- arriving at its “conventional definition of Roach against vor of Ford and Puskar steering”, its erroneous conclusion: hence $60,815.33 theories sum of on the “The result is that no witness testified negligent misrep- breach of facts from which could rea the inference be sustained. The ex- resentation should sonably drawn damages tent of sustained Puskar Appeals in was false.” The Court Civil dispute. not in seem to Ford support disregarding all the evidence theory admit of law allows theory of Puskar’s has done so because of misrepre- interpretation its of “the clear recovery upon proof negligent unwarranted *15 misrepresentation engine that when the recognized in and oth- sentation is well this stops the will ‘have fails advertised victim jurisdictions, argue er that was no steering your safe and full control of falsity representa- evidence as to the of the ” steering.’ with conventional tions, hence, complete there is a absence of negligence. agree argu- I do not with this regard- It clear from the that is ment. ability less of the extent to which Puskar’s sup- appellee your 2. “Here bases his [Puskar] of Thun- the effort needed steer port jury’s by on the conten- Master-Guide answers derbird is taken over ’* * * representation Steering. that tion that Then in the Power power steering operating paragraph without ‘Master- next this is stated: operator steering power Steering provides still would have assist safe Guide your engine and full of car with conven- run- control is when ning.’ Thunderbird’s steering, Conventional steering. tional Then follows statement asserts, he means the same [Puskar] system operating power if is not steering with have. equipped, as an automobilenot steering operator will ‘safe have system power steering car ‘with conventional full control’ steering.’ language urges ex- is He then When all of takes more representation is steering if turn where ertion to wheel considered you system working power not is power equipped the steering system is automobile and control will still safe where you still have the ear because will operating, not does than it to steer require but it more equipped if 75% automobile so because operate than when the power system operate addi- effort system does representation working. The force tional manual force is needed to what is meant conven- thus tional through linkage. defines the fluid steering. opinion all And “First, we must at the whole look you experts should with such is that the be language used Ford to determine control the car." really [Emphasis able representation was. The what its very representation sentence of the added.] first power steering ‘Up about states: to 75% by performance to control the represented Thunderbird was affected is sufficient to engine failure, sudden and loss of establish his case. The rule steering, jury was warranted in believ- subjects relies the seller of a chat- ing failed on the Thunder- tel physical to strict liability when harm bird while operating Puskar was it under results misrepresentation from a circumstances, normal and reasonable quality character or of the chattel. See inability that such to Restatement, Second, failure resulted his Torts 402B. The § control the vehicle manner owner’s manual did not state that the vehi- equipped would have been had it been true cle perfectly was so constructed that the only with steering. conventional mechanism would never fail properly. function simply assured judgment of the trial court plaintiff that automobile so de- his affirmed. signed and built that safe he would have steering and full control in the event of power. previous experience POPE, loss J., joins in this dissent. another particular driver with the true, indicates that ON MOTION FOR REHEARING and what the malfunction on the caused question occasion in is not disclosed and WALKER, Justice. fairly cannot the evidence. be inferred from opinion It is our that under the facts of plain motion for rehearing, case, single unexplained failure says pass tiff we failed on his con does itself establish tention that judgment the verdict and mechanism the character against sustainable Ford the breach quality indicated the manual. implied warranty of an of fitness. After adopted decided, case was we rehearing The motion for is overruled. applicable rule of strict in tort as products physical which cause harm persons. Affiliates, Inc., v. McKisson Sales
Tex.Sup.,
element under case proof injured
rule because *16 product in a condition defective WASHINGTON, Appellant, Jackie particular left the hands of the Restatement, seller. v. Second, See Torts § 402A; Prosser, Citadel, The Fall of the Texas, Appellee. The STATE of pointed Minn.Law Rev. 791. was out No. 38873. original opinion our case is no Appeals support finding evidence to Texas. Court of Criminal that the accident was caused a defect July 26, 1967. existing at the time the automobile was plaintiff, disposes delivered to and this right asserted the to recover
ory of breach of implied warranty Em- appeal only) (on Tessmer Charles fitness. Dallas, Colvin, appeal only) (on mett Jr. appellant. says Plaintiff also that in view of Zimmer- Atty., Hnery Wade, Dist. manual as owner’s Jim Allison, man, Everett, Asst. Mike W. to what do mechanism would John Douglas, Dallas, B. Attys., Leon failure, necessary it was not Dist. Austin, Atty., for the State. to show a of State’s defect. insists that failure