Signal Oil & Gas Co. v. Universal Oil Products
545 S.W.2d 907
Tex. App.
1977
Check Treatment

*1 instrument was before the court there proof respect.

was failure of this See 1 and 434. The

Tex.R.Civ.P. omission support the instructed ver-

shown will not

dict. litigant may

It is settled that repudiate instrument and at an

same time retain benefits received thereun instance, Douglas sought can

der. this he

cellation of a deed that claims was by

obtained him abuse of confi from his

dence, artifice and concealment. He his land

seeks restitution of cancellation well as other relief. deed as Under facts he

his version of the received no con deed; the deed

sideration for practiced fraud him. adjusting equities

When in fraud cases may employed in

cancellation the fur justice. posture ap In its

therance not a case in which

peal, restoration prerequisite offer of restoration is a

or an Tex.Jur.2d,

to cancellation. Cancellation Instruments, (1959). 49 and Sec. Sec. 51 does not support

Failure make a tender

the instructed verdict rendered.

For the the judgment reasons discussed

of the trial court is reversed and the case is a new trial.

remanded for et & GAS COMPANY

SIGNAL OIL

al., Appellants, et OIL PRODUCTS

UNIVERSAL

al., Appellees. 7818.

No. Texas, Appeals

Court of Civil

Beaumont. 13, 1977.

Jan. Feb. 1977.

Rehearing Denied *2 (Alcorn) Company

tion as Tri- defendants. by jury al was was rendered plaintiff nothing the that take as on verdict to all three defendants.

Signal and UOP entered into a contract the refinery for of a unit construction known as an isomax unit at the refinery. employed UOP Procon to assem- the unit. ble isomax Procon ordered a the called a charge unit reactor heater provided Alcorn from Alcorn. the heater as component part refinery of the total unit. refinery Procon assembled the heater at the up This isomax unit started about site. February, the middle 1968. Then one the tubes in the heater April ruptured causing resulting fire the brought. damages for which this suit was gas heater the center of this were were steel burners which surrounded through the oil The tubes which flowed. guides for or the heater called the at about their mid braces for tubes point. specifications for the The called guides stainless steel anchored About first of bolts called bolts. March it was discovered that some guides the middle had fallen the floor heater, began and the tubes to bow out, inward. bolts was One fished and it that had was discovered B-7 bolts they designed used and were not been high temperatures. withstand two made basic claims as First, rupture. the in- that tubes, bowing of the ward because off, placed close to guides fell the tubes too Holcombe,Houston, D. J. appellant. for burner, causing The rupture. them Cheavens, Houston, appel- for Joseph scaling D. accu- second claim was that or coke lee, Oil Products. tubes. Universal had collected inside of the mulation The with the first claim jury along went Vickery, J. Beck and Arnold A. David rupture. Jaworski, Houston, appel- Fullbright & for Procon, lee, Inc. of ac- Signal’s pleadings alleged causes liability Cochran, upon negligence, strict Houston, Les tion based for appellee, Al- corn, warranty. was heard and Evidence jury on all three case was submitted to the STEPHENSON, Justice. theories. plaintiff, (Signal) as Signal & Gas Co. Oil Negligence against damages action for brought (UOP), negligent Company The found Alcorn was Products Oil Universal bolts failing supply Combus- with 25-12 (Procon) and Alcorn Procon Procon, Inc. jury findings as to such was a relies and that also found Procon was make cause of “proximate cause. cause” to out its using above, negligent erecting B-7 bolts in action. As stated and that failing sup- heater negligent Alcorn was Signal has conceded in its brief that such Procon with 25-12 bolts and that ply *3 to cause; as should be judgment also, UOP affirmed the proximate a negligence was pertaining issues to will so the UOP not be using B-7 negligent that Procon was findings by Other the jury discussed. are proximate a cause. was and that bolts was Signal negligent shutting in not that taking these two Signal’s is that claim Then the heater before the fire down which was the with along issues “proximate cause” Also, Signal cause. that proximate a was condition finding a defective issues two the warned of hazard before the fire and con- liability. this of strict In make case that warning neg- to heed which was failed “proxi- is made argument the that nection proximate and a It is ligence agreed all the elements mate cause” includes concerned that cannot recover by all “cause more. That cause” and “producing negligence theory its because of the both, “proximate part in fact” is a and contributory negligence. as to jury Also, “forseeability.” cause” also includes brief, Signal its In makes the statement sequence that the argument the is made question it does not the sufficiency that important. the issues is not contributory negli- the evidence to raise the Tiffany, Inc. v. 454 Pizza cites gence findings. 1970, 420, (Tex.Civ.App.—Waco 421 S.W.2d writ), argument. of this The support Liability Strict first three as fol- jury answered the issues adopted principles the embod Texas lows: ied in section 402A of the American Law design to “1. The failure of defendant (Second) Institute Restatement of Torts chute an extended the machine with (1965) companion cases, in the McKisson v. negligence. was Affiliates, Inc., (Tex. Sales 416 S.W.2d 787 was a cause “2. Such failure 1967) and Shamrock Fuel & Oil Sales v.Co. plaintiff’s injury. Turks, (Tex.1967). 416 779 S.W.2d This sec to “3. The failure defendant provides that the seller tion of a chute, with an extended the machine product in a defective condition unreasona said machine not reason- rendered dangerous to bly the user or his property is ably purpose for which it for the fit liability subject specified under certain was intended.” general The adopting conditions. effect of “producing issue submitted. No cause” was section is to relieve a claimant cited, we We not been nor have have proving negligence privity. burden of and found, the issues holding special cases that jury charge that the reactor sequence. We have must be in a certain shipped by as Alcorn was heater defective arrange that come the conclusion the to find failed that such defective condi- but long important as ment of the issues producing was a tion are meaning of results as the sense and the the jury The also found reactor rupture. clear. as charge by heater erected Procon was but failed to find defective defective Alcorn, First, negligence as to the producing cause of the tube condition issues proximate cause refer and rupture. However, bolts. the supply failure shipped why the heater jury was not asked argues judg- is entitled to it Then, to Pro- by Alcorn was defective. as Procon the against Alcorn and on ment con, and jury findings liability. as to strict basis bolts, use of B-7 though failed to find issues refer to the jury “pro- Even issues, heat- why as not asked ducing again cause” to the “defective” e.). by ‘par Procon was defective. kana writ ref’d n. r. er as erected fact, submitted to only purpose’ specific issue ticular envisions a use defective, inquired peculiar buyer the heater was which is why deposits formation of the in the of his business. about nature in the heater which the answered af- Signal maintained the heater

firmative. “Secondly, Fowco must show that it re- two reasons: the use of was defective for skill and/or lied Servtex’s bolts, the accumulation of de- the B—7 goods. or furnish suitable Brown select posits in the tubes. Texas, Asgrow Company of Seed we do not believe it is For these reasons (Tex.Civ.App. Antonio —San definitely ascertain that the de- possible e.); writ ref’d n. r. Craftsman jury was the same fect as found Glass, Cathey, 351 S.W.2d 950 as found to be condition 1961, writ).” *4 (Tex.Civ.App. —Amarillo cause issues submitted as to ei- proximate conclusively The record shows that both or Procon. The case us ther Alcorn before particular pur- Alcorn and Procon knew the Tiffany, supra, is not like Pizza. for which pose products their were re- negligence in which both the issue and the Alcorn quired. and Procon were likewise issue wording liabilities used the same strict cognizant Signal’s of reliance on them to of (the failure the defendant goods suitable use of an provide for with ), the extended chute machine . . isomax unit. could be no doubt as to the find- and there so, being upon we are called to de- jury. points These of error are ings by the jury’s findings whether the of unsuita- cide overruled. proximate goods bility and cause re the by Alcorn and Procon furnished rendered Warranty Signal. liable to Defend- these defendants Tex.Bus. & Comm.Code Ann. 2.314 § jury’s findings ants contend (1968) provides implied warranty for an as to bar negligence constitute a above, As stated suitability. fitness or recovery. agree. We its recovery sought was one of the theories of damages sought of the kind Recoverable Procon, Signal. As to both Alcorn and provided for in Tex.Bus. & by plaintiff are found the heater not reason 2.715(b)(1) (2) Ann. § Comm.Code ably purpose. suited for its intended use or (1968) as follows: And, instances, in both found such “(b) Consequential damages resulting suitability from the seller’s breach include rupture. Signal contends it is entitled (1) resulting general from or any loss these issues because con requirements and needs of particular tributory is not a bar to its the time of contract- the seller at which recovery. to know and which ing had reason Lanphier In the recent case of Const. Co. prevented by reasonably not be could Co., v. Fowco Const. otherwise; and cover or (Tex.Civ.App. Corpus Christi writ — proxi- (2) injury person property or e.), Nye ref’d n. r. Justice set out as follows resulting any from breach of mately proved the two basic facts which must be added) (Emphasis warranty.” implied warranty before an fitness 2.715 to § arises: In a Committee Comment code, however, we find: (1968) of our “First, contracting at the time of Servtex (2)(b) have known states the usual with Fowco must or had “5. Subsection allowing particular pur warranty, to have known the reason rule as breach goods recovery injuries ‘proximately’ result- pose for which these for injury Where the required. Compa ing Parks v. Glidden from the breach. were (Tex.Civ.App. goods the use of without ny, 433 S.W.2d 445 involved follows —Texar-

9H jury’s negative answer as to the causing the dam- discovery of the defect upon which producing cause issue ‘proximate’ cause age, question proof nothing more burden of it was reasonable for had the on whether turns not in con find” and is “failure to goods without such than a buyer to use the affirmative answer have revealed the flict with inspection as would Transport, issue. C. & R. him it was not reasonable for defects. If (Tex.1966). Campbell,406 S.W.2d so, if he did in fact discover to do or use, injury his would prior defect error that points also has result from the breach of proximately jury to find in the affirm the failure of the added) (Emphasis warranty.” producing cause issues is ative as to the Here, plaintiff was warned defendants great weight prepon contrary continuing to use the reactor of the risk of passing the evidence. In derance heater, warning but failed to heed the record. points we consider the entire these to use the until the fire continued though there is evidence which would Even damage occurred. The and resultant affirmative as to supported have to heed the plaintiff’s failure issues, jury an we do not find the those warning proxi- was both and a wrong manifestly clearly or swers to of the fire. mate cause points These are overruled. unjust. AFFIRMED. agree general with the rule stat We *5 Friedman, Frumer and M. 2 Prod ed in L. KEITH, Justice, concurring. (1976): Liability at 3-39 ucts § 16.01[4] of the While I concur the affirmation negligence in the sense of an “Contributory court, join trial I do not judgment of the dis use of a after unreasonable discussing holding language used danger covery of the defect and the Tiffany, in Pizza Yards, defense.” also Texsun Feed See 1970, writ). (Tex.Civ.App.—Waco Company, Purina 447 F.2d v. Ralston (5th 1971). Cir. point has an alternate of error asking that the case be remanded because in the

of a conflict cause and

producing

point is overruled.