*1 come to the conclusion the future —we Courts of Appeals Civil and is not $500,000 is a reasonable sum and do that reviewable by Supreme Court. Beau point mont, it to be excessive. That not find Ry. S. L. & W. Co. Schmidt, 580, error is overruled. 899, Tex. (1934); S.W.2d Ochoa Co., Winerich Motor Sales 542, Tex. of er remaining points Defendants’ S.W.2d See also my complain presiding judge ror that concurring opinion in Gladden, Collins v. assigning this case a abused his discretion (Tex.Civ.App . —Beau local rules special setting in violation of the mont e.). writ ref’d n. r. County. the District Courts of Harris complaint is also made that it was error Consequently, it would be an exercise in preferential setting not to strike futility cause; to file a dissent in and, grant motions for continuance. defendants’ an articulation of the reasons prompting such dissent would nothing lend ju- us shows counsel for The record before risprudence Thus, of this state. while I do preferential set- plaintiff filed a motion for file a dissent to the affirmation of the April asking ting on 10th judgment, neither do I concur in the affir- 23, 1975. motion setting for June Such mation of the monetary award in this cause. 14, 1975, No April granted. was heard Although I have participated in disposi- hearing. made at that Then record was cause, tion of this myself dissociate 14, 1975, May counsel for defendant Cez- the result reached the majority. asking eaux filed a “vacation letter” that 23,1975, designated the week of June week for him. Then on June
a vacation filed the strike such counsel motion to setting preferential grant and to a mo- for continuance. motion was
tion Such
heard June and overruled. No hearing brought
record of that before
this court for review. TEXAS,
This case NOBILITY HOMES OF proceeded to trial on June INC., Appellant, 1975. Defendants have made no effort demonstrate any harm resulted to them because this case went to trial. There al., Appellees. John W. et SHIVERS suggestion they deprived is no were witness, any testimony they or that No. 7808. put any on their were unable to defense Appeals Court of Civil respect. Beaumont. study
From our of the record before us showing of abuse of discretion there is no July 1976. presiding judge. any part on the Rehearing Aug. Denied event, any evidence of error there is no cause or reasonably which was calculated to of an im- did cause the rendition
probably judgment. Tex.R.Civ.P. 434. Such
proper of error are overruled.
points
AFFIRMED.
Non-Concurring Opinion
KEITH, Justice. judgment is excessive or not
Whether jurisdiction within the peculiarly matter
DIES, Chief Justice. appeals below
Defendant from an ad- judgment verse rendered after a trial to the court, designate will parties and we in they appeared the trial court. Plaintiffs purchased home a mobile from one Marvin Hurley Lakeview Homes, d/b/a Mobile independent Baytown, in dealer who has gone since out business and cannot be Hurley had located. previously purchased defendant, this unit from the manufac- Hurley turer thereof. was not an agent for the defendant. alleged,
Plaintiffs and the trial court found, that the mobile home was defective- constructed; ly that at the Hurley time plaintiffs, delivered it it was not free material; workmanship defects in that it fit for the purposes was not for e., (i. sold place which it was of habita- tion); the difference and that in the reason- thereof at the able market value time of purchase original price contract $8,750. Judgment was rendered for amount from plaintiffs for such which this perfected. appeal has We affirm. been point error, first By defendant’s any asserts it could not be liable for damages plaintiffs because there was no them, privity of between contract only seeking plaintiffs are economic loss. The question of whether there must parties between before purely one for may recover economic dam ages resulting to a and its diminu tion firmly in value has not been answered “Implied this State. Comment Warran ” ties Baylor and ‘Economic Loss’ 24 L.Rev. weight current of authori The ty jurisdiction, as stated the dis sent, re seems to be quired. See, g., Foremost Mobile Homes e. Steele, (Tex. Mfg. Corp. v. 1974, writ); Civ.App. Worth Ther — Fort Asel, Supply mal 1971, no — Austin writ); Corpo General Motors and Cloer ration, (E.D.Tex.1975). F.Supp. 1070 Conroe, appellant. Boyd, W. for Charles The Court of Supreme yet Texas has not Liles, Conroe, appellees. directly ruled on this issue. J. Robert sis, application rather than to test its courts of the intermediate represent personal simply the trend of whether loss of Texas does bargain it re nor does resulted from the breach of the jurisdictions, in other cases True, progressive ap more rule warranty. wiser and war flect gestative stirrings to this writer. had its appears ranty as it proach sup appeal personal landmark case for in recognized greater generally *3 But, existence, is not principle privity in jury of the claim. once port pure in economic loss cases San required operation remedy of the should field of Inc., 44 N.J. Karagheusian, v. A & M tor in a factor.” by not be fenced San There, (1965), brought A.2d 305 Santor Inc., 207 Karagheusian, supra tor v. A and M carpet the manufacturer of against suit at 309. from one of its purchased which he had accepted logical princi court these was be only distributors. equity incorporated with them ples of distributor, which tween and the Santor liability in the substantive law of strict tort. of business. subsequently gone out
had
again
accept
personal inju
refused
for the loss
sought recovery only
Santor
dichotomy and held that
ry/economic loss
carpeting.
value of the
through
tort
would the burden
only
posi-
of the
thorough
After a
discussion
where it
placed
should
concomi-
and the
of the various states
tions
product.
the maker of the
This is
be—on
views, the
divergent
tant rationale of
because, though
initially
the breach arose
“
privi-
held that
Jersey Supreme Court
New
contract, it was a
from the sales
‘tortious
an action
necessary to maintain
ty was
noncontracting
wrong
by
party’
suable
”.
the manufacturer
against
a consumer
Santor, supra
[quoting
at 312
from Gold
loss. The Court
an economic
redress of
for
berg
Corporation,
v. Kollsman Instrument
require
which do not
holdings
restated
592, 191
12 N.Y.2d
240
N.E.2d
N.Y.S.2d
personal
recovery in instances
for
(1863)].
82
injury and
loss of value of the article sold is the
[as
damage resulting from the breach.
ery for breach
“But we see no
recovery
merchantability
the existence of
sjs
personal injury]
said:
n
in the other
the claimant
thereof
just cause for
[*]
and a
regardless of
and the exclusion
[*]
implied
simply
in the one case
right
#
recognition
warranty
to recov-
[*]
only
lack
jurisdictions: Randy
449
son-Weber,
226 N.Y.S.2d
American
(1970); Lynne Carol
ston Print Works
State
1972);
Company, 26
(1961);
Farm Mut.
Kassab v. Central
Cyanamid Company,
Inc.,
Cova
Mich.App.
has been
252 Iowa
Co.,
Auto. Ins. Co. v. Ander
2. This 310). A.2d at 8-12, purchase price. nal By Points of Error Nos. defendant Points Error Nos. complains that there is insufficient evidence 8-12 are without merit and are overruled. that support finding the mobile home We find no merit to defendant’s remain- defective workman- was constructed with ing points, they and are likewise overruled. ship; that there is insufficient evidence and judgment of The the trial court is affirmed. support finding that the difference in AFFIRMED. value time of the reasonable market at the original purchase price and the $8,750. KEITH, (dissenting).
was Justice majority, employing variety The evidence shows that the roof had of the deep pocket theory, spliced been had fixes resulting upon and the leaks damages manufacturer of a mobile home caused to the bathroom and one of when there bedrooms; is no privity of contract between parties that floor seams had begun separate gaps person property. and there were be- floors; jurists speak French deep tween some of the there of this pocket that joists theory risgue floor as “le support; were no for créé.”1 wet, any got when floors there I extremely find it difficult to generate support plaintiffs’ expert at all. The sympathy manufacturer of a defec- further stated that various doors and win- tive mobile home relying wholly upon the properly dows were not installed and Yet, doctrine of as its defense. leaked; and that some of the cabi- kitchen join decline to in this departure solidly pulling away from nets were the walls and precedent established Texas simply because countertops that some of the were bowed. plaintiff our has made a bad deal opinion was his value purchase of a mobile home. This is another present mobile in its home condition was example of apt “hard cases ‘are to introduce $1,000. approximately worth ”2 bad law.’ attempted The defendant to show that In my approach dissent, to this I invoke repairs the cost of would not amount to the language used Justice Oran M. Rob- *6 $1,000 but has not contested the fact that erts in v. Magette, 245, Duncan 25 Tex. 253 the above defects existed. defend- was (1860): ant’s that the various leaks from justice “The act of moulding into a pipes and faucets could have been by caused system of capacity rules detracts from its the transportation of the home that the of adaptation particular abstract in each defendant used the same basic materials as case; law, applied and the rules of when other manufacturers of mobile homes and case, usually to each are most but adequately tested the same. The home was Still, justice. mankind approximation to originally purchased $22,168.75, includ- have better to generally thought it have taxes, ing charges, license, finance and in- by rights system their determine such a surance. rules, by of the sense of abstract than man, or justice, by any one as determined There was sufficient evidence that men, may duty set of whose it have been the home was constructed in an unwork- adjudge to them. manship-like manner and that value the of the home was considerably below the origi- [*] [*] [*] [*] [*] [*] Donnelly, Wright, supra, Cf. S. “After the Fall the Cita- v. was case the Winterbottom del,” Syracuse 1, (1967). 19 rule; and, Law Rev. 31 privity at least which established suggested was one court has rule Mitchell, 2. See United States v. U.S. 403 Linton, v. F.2d based on Anderson 178 dictum. 406, 417, 91 S.Ct. 29 L.Ed.2d fn. 6 1949). (7th 307 Cir. (1971), attributing to Baron observation Wright, Rolfe in Winterbottom v. M W 10 & Eng.Rep. 152 406 196 justice, of bargain, profits. dictates of when or loss of These
“To follow the courts law, must be harmony with have held that where there is to law, the rules of but to follow pleasure; person or property the case at bar— —as conse- spirit, to whatever in their true recovery an action for of economic loss is lead, duty. is a quences they may requires contractual in nature and thus establishing well rules reme- to applies Hous.L.Rev., of contract. 11 supra, establishing rights.” dios, as those at 1061. is majority opinion weakness of the decisions the Texas Courts are it cannot the confession that exemplified by contrary holding the majority. tor from New Jer- decision follow San Judge Steger in Cloer v. General Motors Restate- 402A the cannot follow sey; § it Corporation, F.Supp. 1071-1072 is (Second) the latter ment of Torts (E.D.Tex.1975), synthesized holdings upon ‘physical harm predicated “specifically the Texas courts in this manner: ” Then is reference or consumer.’ to user “The Plaintiff’s suit is for economic warranty of reasonable made to only, loss and does not involve harm to public as a matter of a fitness person property of another. Sons, E. Decker & Inc. citing Jacob policy, Therefore, governed this suit is to be 828, 142 Tex. 164 S.W.2d Capps, v. pure contract law. Pioneer Hi-Bred In A.L.R. 1479 ternational, Inc. Talley, v. “An the article entitled Overview 1973); (Tex.Civ.App. Amarillo, Thermal — Texas,” Sales, 11 Liability in J. Tort Strict Texas, Asel, Supply of Inc. v. 468 S.W.2d (1974), says: the author Hous.L.Rev. 1971). — Austin court’s conclusion “The Decker] [in “Under the contract law the ‘broad principle premised squarely express recover for breach of and im human health policy protect public ” warranties, plied it is essential that there be quotation The inside and life.’ between the Plain reported opinion, 164 S.W.2d found deep tiff and support the Defendant. Foremost Mobile 829. Decker lends Steele, majori- Mfg. now embraced Homes v. pocket theory Corp. 506 S.W.2d thus, follow Decker majority Worth, cannot ty; 1974); 649 (Tex.Civ.App. — Ft. either. Lilly Company, Veretto Eli (N.D.Tex.1974); Pioneer F.Supp. 1254 Hi- decision wherein The landmark International, Talley, supra Bred the Restatement adopted provisions of 608; Lilly Company Casey, at Eli 402A, (Second), McKisson Torts § (Tex.Civ.App. Eastland, S.W.2d Affiliates, Inc., (Tex. Sales — Dism’d); Melody App. Home Manu 1967).3 doing, In so the Court made clear *7 Morrison, facturing Company v. 455 applied personal inju to only that the rule ries, (Tex.Civ.App. (1st opinion S.W.2d 825 saying: “We are further of the — Houston Contra, Dist.), 1970); Motor logical proposition, Compa that as a the rule stated Ford de applicable in Decker should be held to ny Company, v. Lemieux Lumber 418 products cause harm physical fective (Tex.Civ.App. Beaumont, 909 S.W.2d — persons.” (emphasis supplied) 1967). that the The Court observes Lem- ieux case was a tort case and Lumber did courts, obvious despite purely not involve contract law. There as expansion liability of strict trend toward fore, by the the broad statements made excep- recovery, almost without ground concerning privity of Court therein con expand the doctrine tion have declined inapplicable tract are Mr. Cloer’s cause recovery consequential losses permit action, solely loss which is based con product, of the use of the loss 402A, Ray, Liability development see R. § 3. “Products For a detailed chronicle of the —A (1965). Symposium,” 1 19 Sw.L.J.
197 tract (with law. See Foremost Mobile Homes Texas decisions the possible exception Corp. Steele, Mfg. supra Lemieux, v. at 648-649.”4 and, supra); it also in accord with leading some of the scholars in the Chief Lilly Justice McCloud Eli See, field. g., e. W. “Fall of the Casey, 598, v. Company 472 S.W.2d 599 (Strict Citadel Liability Consumer),” 1971, dism’d), writ — Eastland 791, 50 Minn.L.Rev. 821-822 It also quoted extensively Supply from Thermal “comports prevailing with the view in other Asel, (Tex.Civ. v. Inc. jurisdictions.” Hous.L.Rev., 11 supra, at 1971, writ). App. adopt no I this — Austin 1062. part opin as a dissenting rationale of this ion. Justice Bateman in v. Emmons Dura Under the it law as in Texas existed Homes, Inc., ble Mobile 521 S.W.2d decision, before today’s appellant (T ex.Civ.App.—Dallas writ),5 de entitled to a reversal of the trial court’s purchaser nied the a recovery from the judgment and judgment a rendition of manufacturer of the mobile home because plaintiff nothing. Here, take as in privity. lack of Foremost Mobile Mfg. Corp. Homes Steele, 647 (Tex.Civ.App.— S.W.2d discussion, For further R. see: Wein Fort writ): Worth “The mobile traub, UCC,” “Warranties Under home was never considered to be useless for (1974), Tex.L.Rev. 60 and Salmon Rivers the purpose for which purchased, it was but Sportsman Camps, Co., Inc. Cessna Air. rather was considered to be less useful 97 Idaho 544 P.2d Indeed, reason plain of the defects.” my If position needs strengthen further tiffs in living our case are still in the mobile ing, need but quote the basic rationale of (or they home at least were at the time of Chief Justice Traynor speaking for the Cali case). Thus, case, the trial of the like fornia Supreme Seely Court in case of Steele, supra, pure is a “case of Co., v. White Motor 63 Cal.2d 45 Cal. involving law mere economic loss” Rptr. (1965): P.2d plaintiffs may prevail. I would Since “The law of sales has been ar- carefully reverse judgment appel and render for the govern ticulated to the economic relations lant, I dissent from an affirmation. suppliers between consumers goods. The history of the doctrine
strict in tort that was indicates
designed, not to warranty undermine the
provisions act the sales or of the Uni- but, rather,
form Commercial Code
govern problem the distinct of physical injuries.” which I have taken in this harmony
dissent is
strict
all
with
I, too, disagree
Reporter
with
“broad
statements”
advance sheets indicates that a writ
Company
found in Ford Motor
v. Lemieux
sought
of error was not
in the case.
my
Company,
Lumber