GULF COAST INVESTMENT CORPORATION, Petitioner, v. LAWYERS SURETY CORPORATION, Respondent.
No. B-138.
Supreme Court of Texas.
May 24, 1967.
416 S.W.2d 779
L. Alexander Lovett, Houston, Lawrence W. Vance, Dallas, for respondent.
ON APPLICATION FOR WRIT OF ERROR
PER CURIAM
On the authority of Hatcher v. State, 125 Tex. 84, 81 S.W.2d 499, 98 A.L.R. 1213 (1935), the Court of Civil Appeals has held that a suit against a notary public and his bonding company for falsifying an acknowledgment is governed by the two-year statute of limitations. 410 S.W.2d 654. We are in agreement with this holding, and accordingly disapprove Standard Accident Insurance Company v. State, Tex.Civ.App., 57 S.W.2d 191 (wr. dis.), in so far as it is in conflict therewith. The plaintiff here did not attempt to prove when it discovered that the notary‘s certificate is false or when the same should have been discovered. No question is presented, therefore, as to when the statute of limitations began to run. The application for writ of error is refused; no reversible error.
SHAMROCK FUEL & OIL SALES CO., Inc., Keith L. Ward and Johnny Hale, Relators, v. Honorable Bert H. TUNKS, District Judge, William Earl Munsinger and Omy Ray Munsinger, Respondents.
No. A-11753.
Supreme Court of Texas.
June 7, 1967.
Rehearing Denied July 5, 1967.
416 S.W.2d 779
Dissenting Opinion June 21, 1967.
Bracewell & Patterson, Joseph Jaworski and John R. Cope, Houston, for respondents.
NORVELL, Justice.
Shamrock Fuel & Oil Sales Co., Inc., Keith L. Ward and Johnny Hale, relators,1 seek an original writ of mandamus ordering Hon. Bert H. Tunks, Judge of the District Court of Harris County, 113th Judicial District of Texas, to render judgment upon an admittedly incomplete special issue jury verdict. Our authority to order a judge of a district court to render judgment upon a verdict is derived from
William Earl Munsinger and his son, Omy Ray Munsinger, a minor, sued relators for injuries sustained by the minor plaintiff when he attempted to make use of kerosene allegedly adulterated with gasoline. Trial to a jury resulted in an incomplete verdict which was not accepted by Judge Tunks and a mistrial was declared.
A total of 43 issues was submitted and 24 of them were not answered by the jury. Six of these issues were not answered because under the instructions of the court, the jury was not required to answer them because of its answers to preceding questions. One issue inquired if the minor plaintiff knew and appreciated the extent of the dangers in the use he made of the liquid (kerosene). This inquiry was not answered nor was the conditionally submitted question which immediately followed inquiring if said minor voluntarily exposed himself to such danger. However, the jury found that the minor plaintiff was contributorily negligent in directing his brother to pour the liquid (kerosene adulterated with gasoline) upon a smoldering stick which he had taken from an incinerator and placed in a toy truck, and that such negligence was the proximate cause of his injuries sustained as a result of an explosion which took place.
Plaintiffs’ action was predicated upon negligence and upon a warranty implied by law (strict liability in tort) based upon the proposition that the defendants, Shamrock Fuel & Oil Sales Co., Inc. and others, had sold a product in a defective condition which was unreasonably dangerous to the user. Relators present two contentions, namely, (1) that as there was neither pleading nor proof of privity of contract between any of the relators and the injured minor plaintiff, this Court should order the trial court to render judgment that plaintiffs take nothing against them, and (2) that because the jury found that the minor plaintiff was guilty of contributory negligence, this Court should direct the trial court to render a take nothing judgment.
Because of limitations upon the mandamus remedy, the first question stated is not properly before us.2 This is not a case in which it is contended that some of the jury‘s answers taken in connection with certain undisputed facts would call for a judgment in favor of the defendants, O‘Meara v. Moore, 142 Tex. 350, 178 S.W.2d 510 (1944), but the argument is that no cause of action was stated or proved in the absence of a pleading and
In considering the second question, whether contributory negligence is a defense to an action based upon strict liability, we must necessarily accept the hypothesis that the pleadings and proof support a recovery based upon strict liability unless defeated by the issues answered by the jury relating to contributory negligence, because we may not by mandamus invade the realm of judicial discretion, but are limited to directing the performance of a ministerial act. Lowe & Archer, Injunction and Other Extraordinary Proceedings, §§ 471, 478 and 480.
Both the District Court and the Court of Civil Appeals, 406 S.W.2d 483 (on application for original mandamus), have held that the jury‘s answers to Special Issues Nos. 36 and 37 do not constitute a bar to recovery in a strict liability case. By its answers to these issues, the jury found that the minor plaintiff was negligent in directing his brother to pour the liquid in a black can (allegedly adulterated kerosene) on a stick and toy truck and that such negligence was a proximate cause of the burns sustained by such plaintiff.3
Negligence and ordinary care as applicable to the minor plaintiff were defined as follows:
“By the term ‘negligence’ as used in this Charge is meant the failure to use ordinary care.
“By the term ‘ordinary care’ as used in this Charge and as applied to the minor plaintiff, Ray Munsinger, means such care as an ordinarily prudent child of the age, intelligence, experience and capacity of the said Ray Munsinger would have exercised under the same or similar circumstances.”
There is conflict in the rules laid down in the decided cases as to the nature and scope of the contributory negligence defense in strict liability cases. Compare, Nelson v. Anderson, 245 Minn. 445, 72 N.W.2d 861, 865 (1955), and Vassallo v. Sabatte Land Co., 212 Cal.App.2d 11, 27 Cal.Rptr. 814 (1963). See, generally, Annot., 4 A.L.R.3d 501 (1965). The Supreme Court of New Jersey, which was one of the first courts to recognize this class
Dean Prosser points out that much of the divergence of opinion among the decided cases is more apparent than real. He says:
“There has been ostensible, and quite superficial, disagreement over whether contributory negligence is available as a defense where the action is one for breach of warranty. A few decisions have said flatly that it is not. The greater number have said quite as flatly that it is. The conflict is, however, more apparent than real. If the cases are examined, it readily appears that those which refuse to allow the defense have been cases in which the plaintiff negligently failed to discover the defect in the product, or to guard against the possibility of its existence. They are entirely consistent with the general rule that such negligence is not a defense to an action founded upon strict liability. Those which have permitted the defense all have been cases in which the plaintiff has discovered the defect and the danger, and has proceeded nevertheless to make use of the product. They represent the form of contributory negligence which consists of deliberately and unreasonably proceeding to encounter a known danger, and overlaps assumption of risk. They are quite consistent with the general rule that this is a defense to strict liability. There are only a few cases which have recognized the distinction; but it seems quite clear that it is made in fact.” (Prosser, Law of Torts [3d Ed.] 656.)4
A shorter but similar statement is contained in Dean John W. Wade‘s article on Strict Tort Liability, 19 Sw.L.J. 5, l. c. 21:
“The cases appear to be in disagreement as to whether contributory negligence of the plaintiff bars his recovery in an action for strict products liability. In general, however, they can be reconciled by adverting to the customary distinction between contributory negligence and assumption of risk. If the plaintiff‘s negligence was in failing to discover the unsafe condition of the product he can usually recover; if his negligence was in continuing to use the product after learning of the dangerous condition, his recovery is usually barred.”
In
“Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk,5 is a defense
under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless unreasonably proceeds to make use of the product and is injured by it, he is barred from recovery.”
We agree with the rationale stated by the Court of Civil Appeals that “in a case such as this a plaintiff would not be barred from recovery even though his injury was caused in part by his failure to test the kerosene, or by his failure to foresee that the kerosene might have a dangerously low flash point and to guard against such a possibility.”
In a separate argument, the relator, Johnny Hale, the operator of an automobile service station, argues that the contributory negligence findings of the jury in answer to Special Issues Nos. 36 and 37
It may be argued that improper use or voluntary persistence in use after discovery of danger is encompassed within the prudent man inquiry as stated in the contributory negligence issues given by the court, but the point is that such issues Nos. 36 and 37 do not submit the legitimate defenses available to one from whom damages are sought under the doctrine of strict liability. Compare, Scott v. Liebman, 404 S.W.2d 288 (Tex.Sup. 1966). A manufacturer or distributor of products is not an insurer. As pointed out by Dean Prosser, a plaintiff may be barred from recovery when, after actual discovery of the dangerous propensities of an article or product, he persists in its use and thus assumes the risk of injury by its continued use. This voluntary exposure to risk may not be the only type of action or failure to act that may bar a plaintiff‘s recovery and we do not mean to infer that it is, but these defenses, voluntary exposure and such others as may be recognized should be submitted specifically and not under the formula embraced by the contributory negligence issues (Nos. 36 and 37) employed in this case. Such form of submission embraces a failure to discover a defect or to guard against the possibility of its existence which under the greater weight of authority is not a defense to the action. Under modern conditions of advertising
The petition for mandamus is denied.
GRIFFIN, J., dissenting.
DISSENTING OPINION
GRIFFIN, Justice.
I can agree on the doctrine of strict liability with my brethren in this case, but I cannot agree that contributory negligence should not be a defense to a suit by a party upon the “warranty” or tort doctrine.
In this case the jury has found that Ray Munsinger was guilty of negligence in directing his brother to pour the liquid purchased by Ray Munsinger‘s father as kerosene upon a smoldering stick which he had taken from an incinerator and placed in a toy truck. The jury also found that such negligence was a proximate cause of his injuries sustained as a result of the explosion.
The effect of the jury findings on the issues of negligence and proximate cause is that Ray Munsinger did not exercise the care of a child of his age in his actions and conduct in handling and dealing with the liquid in the can. This being true, I just cannot agree that Ray should be excused from his own negligence and permitted to recover. I do not understand that a manufacturer, distributor, or retailer of any product can be charged with foreseeing any one in his right mind would fail to use ordinary care in his actions and conduct toward, or with, such product. Surely, a manufacturer, distributor, or retailer is not to be mulcted in damages for the one and only reason that he put the product in circulation.
The ordinarily prudent child [person] is a well recognized test for measuring conduct of others in practically all cases, therefore, I cannot agree it should not be the test in a strict liability case.
The rule announced by the majority opinion is the minority rule in the United States. The quotation from Dean Prosser set out in the majority shows this to be true. Read the following language from such quotation:
“There has been ostensible, and quite superficial, disagreement over whether contributory negligence is available as a defense where the action is one for breach of warranty. A few decisions have said flatly that it is not. The greater number have said quite as flatly that it is.” (Emphasis mine.)
Then Dean Prosser sets out what he considers good reason for reconciling the conflict in favor of the “few decisions.” I do not agree and prefer the rule followed by the “greater number.”
L. A. McKISSON, Petitioner, v. SALES AFFILIATES, INC., Respondent.
No. A-11814.
Supreme Court of Texas.
June 7, 1967.
Rehearing Denied July 5, 1967.
416 S.W.2d 787
Dissenting Opinion June 21, 1967.
Notes
“Do you find from a preponderance of the evidence that Ray Munsinger knew and appreciated the extent of the dangers involved in the use being made of the liquid in the black can at the time of the occurrence in question?
“If you have answered, Special Issue No. 31 ‘We do’ and only in that event, then answer:
“Do you find from a preponderance of the evidence that Ray Munsinger voluntarily exposed himself to such dangers?”
As to assumption of risk and volenti non fit injuria, Professor Robert E. Keeton observes that:“As you know, we have two different concepts of assumed risk: (1) the no-duty cases applicable to occupier-invitee situations, and (2) the volenti cases (volenti non fit injuria) applicable on the occupier‘s premises and also to other assumed risk situations. I will attempt to refresh your memories on the differences. But in general, both will be referred to as ‘assumed risk’ cases. To illustrate the confusion, you know that the Texas Supreme Court in Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172 (1951) held that ‘assumed risk’ applied only to master and servant cases; but volenti (the same thing) applied in non-master and servant cases.”
It is quite obvious that the terms “assumption of risk” and “voluntary exposure to risk” are used in many areas of the law, such as “on premises cases“, “off premises cases“, “products liability cases” and “master and servant cases“, and that these phrases take their meaning from the context in which they are used and the type of case involved. Depending upon these considerations, for example, these phrases may connote a definite specific risk or refer more generally to all risks incident to a particular operation or occupation. As a matter of valuing precedents, the type of case is of importance.“It has often been said that there is no substantive difference between assumption of risk and volenti non fit injuria, although as a matter of customary terminology in some courts assumption of risk applies only in employer-employee cases or only in cases of contractual relationships, whereas the volenti doctrine applies to other situations. E.g., Terry v. Boss Hotels, Inc., 376 S.W.2d 239 (Mo. 1964) (plaintiff slipped and fell on dance floor, which he admitted he realized was too heavily waxed; proper to submit the defense to the jury); Wood v. Kane Boiler Works, Inc., 150 Tex. 191, 238 S.W.2d 172 (1951) (inspector killed when pipe burst during tests; defense failed for want of showing full appreciation of risk). Long preservation of a distinction in terminology, however, is bound to invite explanations that there really is a difference. No distinction is made between the two in this Article. It will be well if courts continue to resist the temptation to give different substantive or procedural effects to these two theories of what is in essence one and the same defense.” See footnote, Robert E. Keeton, Assumption of Products Risks, 19 Sw. L.J. 61.
“He would, however, be barred if he misused the product, that is, if, by reason of the manner in which he used the product, he would have been injured had the kerosene conformed to the statutory standard, or if, knowing that the kerosene was defective and of the danger of an explosion, he fails to exercise reasonable care to avoid the threatened harm.” 406 S.W.2d 483, l.c. 490.
“Logically, a plaintiff cannot make an intelligent choice to confront a risk if he does not actually know of the danger, or know such facts as would in law charge him with knowledge of the danger and appreciation thereof. Thus, while the cases speak of the requirement of actual knowledge and appreciation, the plaintiff may not close his eyes to obvious dangers; and he may not recover where it is shown that he is in possession of facts from which he would be legally charged with appreciation of the danger. Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952).”