*1 al., FORD MOTOR COMPANY et Appellants,

Daniel J. PUSKAR, Appellee.

No. 14317. Appeals

Court Civil of Texas.

Houston.

July 8, 1965.

Rehearing Sept. 16, Denied 1965.

Appellee’s Rehearing Denied Second Oct. 1965. *2 2,

bought May from the dealer 1959 appellee. by early morning Roach In the May hours of in- volved in inter- a one accident at the section of Alief Road and Roark Road County. equip- Harris The automobile was ped power with brakes. theory general was the the automobile when delivered to him Roach was defective that when he made so application full on the brakes the would die and thus the brakes and operate would not with as- against theory sist. As Ford the of recov- ery falsely negligent was that Ford was representing if the was not running there would still be safe and control conventional brakes ap- question At the time Róad, pellee was north on Roark proceeding gravelled Upon reaching which ais road. point a from 125 to 200 feet from Alief Road stop sign controlling entry he saw a applica- heavy into Alief Road and made brakes, tion of the but there no re- sponse. He, finding the brakes were not automobile, effectively effective to slow the Baker, Botts, Cowan, Houston, Finis E. then, intersection, got when he turned Coates, Houston, counsel, Shepherd & wheel as hard as he could to Co., appellant Ford Motor Inc. for very right but it move few inches and this to turn was ineffective Freeman, Crooker, Bates & Fulbright, automobile. The result was that Houston, Gayle, for Jaworski, Gibson Road, automobile went on across Alief Bissonnet, pellant Roach Inc. Jack wide, which was about 33 feet across a Kronzer, Allen, Ralph K. Bill W. James ditch and into an embankment. Severe Hill, Gann, Miller, Houston, Miller & personal injuries appellee. resulted to Kronzer, Abraham, Brown, Watkins & purchase At the time Roach deliv- Houston, counsel, appellee. Steely, for warranty, ered its reads as dealer’s which follows: BELL, Chief Justice. (ex- Purchaser “Dealer warrants to Appellee joint and several recovered cept provided) hereinafter each judgment damages in the amount for Company produce of each Ford Motor $60,815.33 injuries personal reason of sold Dealer to Purchaser be free resulting negli- allegedly to him from under normal use and service from Company gence of Ford Motor Jack workmanship defects in material and Bissonnet, Motor Com-

Roach Inc. Ford period ninety days (90) Ford, pany referred to as will be hereafter delivery product the date of of such Inc., Bissonnet, Roach. Roach Jack Purchaser, product or until such has driven, operated Ford the manufacturer of the been used or for a miles, (4,000) Ford Thunderbird that was distance of thousand automobile four normally, operating shall occur. should not whichever event first steering and full con- warranty safe you’ll makes no whatsoever Dealer your car conventional respect tubes. Dealer’s trol of to tires or steering.” lim- obligation under charge to replacement, without

ited BRAKES SWIFT SURE'POWER Purchaser, parts of such as shall *3 Dealer and as shall returned to pedal optional for the “The low-level acknowledged Dealer to be defec- by Power vacuum-operated Sure Swift apply warranty shall not to tive. This ap- system operate will Brakes Company produce that any Ford Motor pressure less proximately one-third misuse, negligence, subject has been pedal brake for than the conventional accident, parts or in not made or which stops. most normal Company supplied by or Ford Motor “If, reason, Pow- for Swift Sure if, been used in the deter- shall have their completely er Brakes should lose Dealer, shall have mination of such use power, brake-assisting your Thunder- performances, stability or affected its hydraulic brake bird’s conventional reliability, or which shall have been system fully remain will effective repaired altered of Dealer’s or outside permit you stop will which, take place of business in a manner safely you push the car down the when Dealer, in the determination shall pedal.” brake stability, performance, have affected its reliability. warranty or This is ex- jury following found the issues fa- warranties, pressly lieu all other vorably appellee against only: as Roach express implied, or all other ob- purchasing Issue. 1. In the automobile ligations on the of Dealer.” appellee relied on the that the Also at the time the automobile de- automobile was free from in ma- defects appellee livered to there was delivered to workmanship terial and use when normal him Roach a manual issued Ford de- was made of vehicle. scribing the various features of the auto- delivery Issue 2. That from the time of parts mobile. The here material are up to the time the accident it was not representations made in the manual with free from such defects. regard braking to the systems. are as follows: They That the be free from Issue 3. failure to proximate cause ac- defects was of the

MASTER-GUIDE POWER cident. STEERING “Up delivery engine of the effort needed to Issue 20. After to 75% application your steer Thunderbird is taken over die on full of the brakes. Yet, Steering. Master-Guide Power Appellee requested Issue 21. Roach optional hydraulically operated repairs adjustments or as were make steering system allows to retain prevent engine’s dying. wheel, the natural feel of particularly you’re driving your when refused to make such Issue 22. Roach along open highway. repairs. Steering pro- “Master-Guide Power only your vides a assist negligence. refusal Issue 23. Such engine running. Thunderbird’s prox- However, your negligence was engine even if Issue 24. Such stopped, cause of accident. system imate jury following toxicating liquor fa- jury found the issues and the found the

vorably against as both Roach accident was not an avoidable one. and Ford: reversal, Ford, grounds attacks the They represented Spe-

Issue 4. that when the submitting action the trial court in stopped ground there cial Issues 4 safe and full control of the car support submis- was no evidence to their with conventional sion, jury’s answers were and also pre- overwhelming weight against the Issue 5. time of accident At ponderance answers evidence. The representation. relied on such judg- to these issues are the basis for representation 6. The untrue against Issue ment Ford and their effect is to applied operation representation untrue find Ford made an system stopped at the at which the car was if the car *4 op- moving just power system properly before accident. the the erating appellee “safe would still have negligence Issue 7. It was to make the steering and full control of the car with representation. appellee steering;” that re- conventional representation; prox- Issue lied on the that to make negligence 8. Such was a and, negligence negligence; that such imate cause of the accident. proximate the cause of the accident. Spe- jury response found in also to Also Ford makes the same attack on the appellee cial Issues 25 and 26 was act- that of and 26 and the submission Issues 25 he, ing emergency in an and that in such jury’s These all answers thereto. were emergency, ordinarily prudent acted as an plaintiff’s issues. person in would have acted the exercise of ordinary care. reasons, attacks, Ford also for the same Special 27, the Issues 31 and submission of jury unfavorably appel- found 35, contributory they negligence is- being negligent representation lee as to as to sues, jury and the answers of to repre- by finding quoted brakes the above issues. Special sentation was not Issue 11. untrue — appellee unfavorably It also found on the judgment against Roach rests issue as to failure finding to warn repre- jury’s negligent answers to the appellants know, did not nor should 8, sentation Issues 4 and also the have known that brak- died the finding war- answers a breach Roach’s of steering efficiency and im- would be so 1-3) ranty against (Special defects Issues paired would be unable to jury’s findings negligent and of fail- safely control the car under the circum- repair 20-24). (Special ure to Issues existing at stances the time the accident of Roach, reversal, attacks the submission —Special Issue 16. 3, Special 21-24, of Issues 4-8 and

Appellee acquitted of all acts of con- ground support there was no evidence to tributory negligence, jury finding no jury’s their submission and that an- brakes, failure to apply no failure properly against swers to these over- issues keep proper lookout, speed, no excess whelming preponderance weight and of negligence failing stop stop no in at the judg- point evidence. Another attacks the sign, negligence failing to take the being ment based breach of on Roach’s adjustment ap- car to Roach for and that liability his for breach is warranty because did knowledge full and allegedly replacement of defective limited preciation operating the risk of involved parts. point There is also the acquitted the vehicle. The was also Special in the form 1-3 was error Issues driving under the in- while influence of global in that there was submission. Roach apply the He had no occasion to con- wheel. establishes contends the evidence also emergency. steer car in an brakes or tributory of law negligence a matter experience called appel- began After he undisputed shows evidence that the him of Ferguson at and told exposed him- Roach’s Mr. knowingly voluntarily lee him this Ferguson assured this trouble. dangers incident to the risks self for a new automobile. was normal behavior operation of the car. “letter him the car was Ferguson assured must review evidence. worry appellee not to perfect.” He told negotiated for time Appellee testified he it was bring the car when and to Don purchase the automobile with conversation with The first serviced. Appellee days Ferguson, a for Roach. aft- salesman about a week or Ferguson was purchase agreed the new 1959 appellee purchased the car. On another finally er Ferguson with au- Thunderbird automobile also called about occasion he transmission, power steering “frustrating.” This tomatic it was trouble because Delivery 20, brakes. the car was 22. May 21 or At call was around May been Ferguson made At car had not 1959. of these calls the time delivery, Warranty”, keep the “Dealer’s Ferguson time told him to 1000 miles. warranty, called was also de- car so things hereinafter with the wrong record Manual”, here- livered was “Owner’s he could tell Roach them Upon delivery checkup. inafter called manual. On this brought for a car was the automobile read the instruc- Ferguson referred him last occasion *5 them, department. tions in the manual. He understood The someone in the service believed them and relied on him to person department them. told in the service warranty. regard checkup. same true On to wait until the 1000 mile Sat- delivery appellee proceed- After the car the car be- urday, May the behavior of same, ed drive it and ex- perhaps appellee again to a few called about ceptions operate fairly it seemed normal- department to at in the service someone ly. days began complained A drive it few after he to Roach’s. this occasion he On “Idling the automobile be kind nothing seemed been done vigorously to because had * * * roughly possibly a small again like assured the Roach. He was type idling engine, rough normally. motor boat be operating was He asked to repre- rocking, in, bring that would be in It allowed to it neutral'. was but Roach’s speak.” particular so it He observed no him not service sentative told could except possibly bring noise like it was in on Tues- Monday, it sounded then but it or so, day. agreed of tune. On several occasions when to do but stressed that out He backing driveway thought very the motor died. situation. out of he it was a serious thing happened con- same in slow or early hours of The accident occurred in the gested pull traffic and when Sunday, May 31. up stop sign. happened to a This on also At the time of the accident applying other occasions when brakes. way television station on his to K.P.R.C.

Too, happened it on occasion when the a benefit for play in an orchestra for idling motor was while the car was stand- Eyes as “The of Tex- fund known blind ing in traffic. He was no mechanic and Road, driving He north on Roark as.” did not know what caused When it. He 2-lane road. gravel which a shallow motor died he noticed it took extra effort miles an hour. driving or 35 apply the the occasion brakes on but an intersection. until he saw prior accident, slow He drove going he was so Roark Road intersection. the Alief it didn’t make much He didn’t was difference. stop awas There there. opportunity Road dead-ends have real to test steer- any Roark Road controlling traffic sign ing because on occasions the motor sign He saw Road. Alief enter died he had reason to turn the when he was from 125 to 200 feet hack it stated skidded but he did not know how intersection, probably explained from the 150 feet. far. He he meant the car “slid”. stepped got He on the no re- He brake and didn’t know how far. At intersec- sponse. again stepped pressure He on the brake and tion he exerted the maximum though might pushing capable it felt as he wheel of which he was board, again got right. imagined but he no re- in an effort to turn floor He it sponse kept moving. pounds and the car He then was at least 50 from each hand. slightly, probably turned wheel but it would turn wheel turned only inches, or 3 slightly. He had his Ap- not reduced and then would not move. extent he anyone could tell. The denied he told he had had sev- tires did not he skid. He used all the force eral drinks beverage. of an alcoholic He try had to turn His drinking. Appellee wheel. he had been tes- denied efforts had inspect no effect and he went on across tified he did not have someone else the car because it would Road, Alief stated on the north side ditch and voided, in the dealer, discretion of the against the embankment. repairs others made He alterations. stopped knew if the motor he purchasing Prior to would not the car he drove it assist in a but he relied on the normal fashion brakes statement in the manual steering operated satisfactorily. thought he After would still have control over the car purchasing engine the ear the died on him proper power. would have braking four to six times. he When proached the intersection where the acci- In his testimony in court at no subconsciously dent occurred he re- had place testified just died before tained what he had read the manual. At the accident. In a statement he had made particular moment he not think- previous trial, introduced, which ing -of the book. He never took the car stated he did not know whether the repair. Roach’s operated The car died or not but he felt at the time did. satisfactorily on Saturday after he called The jury found did die. Roach, until the time of the accident. *6 had no trouble with either the brakes or A appellee, Eisenmann, friend Mr. steering day. lights the balance of that The once drove the he car. As went around the on the car quite were normal. He was not corner the motor stalled and he feel could certain he thought lights but were on weight of the car as he He steered it. high beam at the time of the accident. He had trouble it but he had control stop sign saw the it the time came of the car. He driving about 10 miles within the beam lights. applied He per hour. response. his brakes and got slight On sec- application ond it felt Mock, Roach, like a frozen surface Mr. who worked for testi- pedal as if the brake went to delivery. fied Roach serviced the car before pedal, however, They floor. The brake however, power did not did not, install the go pedal applica- floor. The on first brakes or The brakes and tion went down by pre- about an inch and a half or would have been installed Ford. inches, possibly Appellee two weighed delivery less. by service done Roach no acces- pounds pressed and he sories put on the brake as were on. If a customer com- plains hard holding as he could. He idling dy- onto the about a roughly motor or steering wheel pressing ing, while he affecting the brake. considers that as He did Appellee driving operation not skid. had made one of an automobile previous power statement in which he stated he with and brakes. thought applied complains when he If his brake the car a customer about that condi- tion, “skidded sixty feet in sort of left side he would tell him to bring car in. and deposition forward motion” That is equip- and a a whether car is warning ped power steering swung not. around. The left two-thirds or brakes or damaged. jolt car dangerous anyone to have a front of the car was It is front. the accident more to the left predelivery traffic. service dying in In the any there were He could tell whether the brakes and are road-checked. clear timing, skid marks or The weather was automatic checked are not. Also dry. The ditch was wet. preset, and the road was settings, fast idle choke automatic hav- made speed. Any necessary adjust- His no mention *7 guaranteed the car was to be letter repairs power system. made no perfect, bugs that there be a would few any it as in new car be but cor- evi feel there is circumstantial We Appellee, rected. the car deliver- the probative support of force to dence ed, couple drove it around the block a finding accident jury before the just that times and it right. Ferguson drove all Mr. admitted, firing. engine stopped It is the appellee did recall him what said representations contained as stated the on the occasions called him about run manual, is not engine if the in the that operation the of the car. power brakes power steering ning the you have operate though still will not will investigated by The accident was Mr. note should here steering. brakes and We Highway Graham the Texas Patrol. the though is that Most of the there damage car was on that evidence turning it will engine firing left front end. had hit is not still The car the embank- operate power system ment almost end so as head-on and then the back moviiig speed power the car at a of as much is ventional brakes with assist and per as 35 miles There also just power. is evi- will as without hour. work well dence (The jury representation that is also true if the car is this found the traveling per though miles at 30 hour conventional brakes was untrue.) power there hydraulic is evidence that while it is true of system. is a closed speed some cars at this is not all you true “Closed” means one Hsing are individ- appellants urge cars. through While that evi- ual reservoir pump with a valv- a traveling arrangement dence at least ing cylinder supplies shows to a that system per power power. 35 miles power pumps through hour and the fluid operating, would still be from the connecting pow- we feel linkage. This affords operates car jury help evidence a could infer the er that turn the traveling engine at a lesser so that the wheel and thus in the front turn turns turning was not on over. We are of view wheels the car. probative that evidence of equipped power In an automobile with power force that there was defect steering you valving have additional braking power systems in them- linkage cylinder and a boost boosts power selves that not to would cause the pressure linkage. to move the The fluid operate. only thing, the evi- under must be through moved back and forth dence, that could said to cause the power operat- If unit linkage. is not power to fail would be the failure of the ing pressure boost to move the fluid improper adjustment to fire due to operation the manual of the wheel must improper the idle screw, thus allowing an linkage. move through fluid mixture of air and fuel. The result these power automobile not steer- just conclusions accident before the linkage do not have additional power been without necessary and no force is thus move brakes This then fluid is the linkage. This reason brings very testimony important us to the operate it is more difficult to car with bearing on the effect of the absence power steering when the motor dies than

power. a car that has conventional steer- ing. This is brakes. not true of Appellee upon testimony relies University Professor Melton of the James stated, above As Professor Melton’s ex- Melton, well Oklahoma. Professor periments with cars the motor not being teacher, con- research and running were with a 1959Thunderbird and sulting engineer. Based on his research a number of other cars also. When asked experience, he familiar testified was on direct the additional examination as to principles with the concerning the pressure required, the witness answered: power steering systems brake and of a 1959 Thunderbird. should note that “I do exact here not recall the values. our the jury conclusion that could have These tests in connection with developing concluded the died is some research in constant based opinion, appel- torque this witness’s idle and I do assemblies, based arm lee’s just version of how be- know the normal force acted accident, fore the that the on a loss of conventional car is about 12 *8 pounds wheel, due to additional intake of into the at seven air pounds had steering, carburetor. He made a number of with and with cars, tests with a number of in- steering assisting, different assist cluding a it will up, depending Thunderbird. These tests were run on the itself, made connection with some research automobile much as 18 to 36 developing torque pounds arm beyond “constant idle as- and even that when semblies.” brakes just inoperative.” Power are con-

9 arranged quite a number force values it this means the additional takeWe of the vehicles.” make depending on the needed varies just preceding of his testimony car because Thunderbird, it was he stated 1959 to a As a that he tested statement to the effect steer- it, the depend on the miles on going to auto- other 1959 Thunderbird various things. quite number ing linkage and a mobiles. gyro- tires, speed, the effect of the The There effect, scopic are considered. to Melton On cross-examination the witness things extremely large is an number them “on -making stated in tests he ran testi- witness can affect prod- a series of different General Motors Thunder- 1959 fied it was harder steer a Company ucts also Ford Motor because power steering bird products.” Included were in the cars tested fluid necessary move the of the force a a 1959and a He 1960Thunderbird. an linkage. In through the back and forth had no him so that records tests with testify as to how get the witness effort give he not his vari- readings could on the necessary to turn much force would ous tests. The tests at dif- were made Thunderbird steering wheel on a 1959 speeds. 12, 7, ferent to 36 forces of 18 not power steering engine was when the pounds cases, were, stated above in some friction, running, when the elements stopped. while the vehicle In some involved, if the etc., counsel asked were cases the tests were run 30 and between put grease up had ever one on a witness per words, 40 miles hour. In other we turned the He answered rack and wheel. interpret testimony, these various he did not of what had but a record pounds of force were necessary when some a required. this as force was He did vehicles were stopped and tested some not remember of a series of tests. He did required them were on some vehicles while required. the numbers the force Whatever they moving. were in- are nowhere He analysis. were into the statistical went formed applied as to which figures required. He had no idea as to the force products Ford applied and which were normally then didn’t think would said he products. General Motors did testi- pounds. take be more than or fy as which of figures applied to a these if the were on more than that car wheels specifically 1959 Thunderbird. When the car weight a surface because of asked if figures those obtained at dif- were being joints, on the ball rod ends and speeds, ferent answered, the witness “These linkage asked number of elements. When average figures.” are He then stated pressure extra take on how much it would averages were the “of tests.” a series of car was driv- 1959Thunderbird where the figures He also said the were different de- road, stated, guess 20 “I speed. pending on the ex- The witness Pos- pounds, to 30 extra but I don’t know.” essentially plained figures these were considerably it could be less. sibly necessary while the force on various cars witness was then asked if he ever made standing friction. overcoming still thus much it specifically tests to find out how He stated this: answered, would be and he different “On automobiles; asked yes, sir.” then He was instance, seven, figure “That this an- if he and he tested 1959 Thunderbird being one or two vehicles we had, of all “I don’t remember the extent swered, turn it the force that was of these tests.” had other on a conventional unit that Chwaiek, engineer experimental steering assemblies it was Mr. involved and power steering department of in the overcoming the the rubber friction on Company, the defend- pavement. Bendix testified for itself, on the That is the developed power steer- average Bendix reason I told ants. these were -ing system used in the Thunderbird. statistical values and that *9 10 steering pounds

This witness a 1959 Thun- 3 to 6 force working, testified of required. is whether is 18 gear working, derbird the ratio the same If it is not 12 to pounds you equipped power steering required. have one with would be The variance pound or one In car of shown when 12 pounds without. one a turn to 18 pressure steering depends exerted on wheel is is used because the force needed produces pounds sharp Pitman 30 arm. the radius of the turn. A automobiles, however, requires In some turn makes If is more force. the vehicle gear equipped stationary power works, ratio system is different where with and the 6 power steering, and is pounds required. when the automobile 10 bewill If the so equipped. steering not is pounds wheel turned When a maximum 50 off, is turned required. move the In would be Pitman arm. This last amount developing power pressure study required steering is fric- because static made of might what required be encountered if the tion. is hav- same cars not engine stopped ing power firing. equipment. Tests were con- ducted. Tests were made of 1959 Thunder- equipped power steering with birds at speeds, various both automobiles power working, but the not driver is power equipment with and those supply power displace will have to equipped. so not were Tests made of those pipes. the fluid in hoses If there so equipped while the motor was run- not some were obstruction such as a blister in ning as well as when the motor was run- them, it would cir- interfere with the free ning. tests, Based on these if a 1959 culation of the fluid. If a 1959 Thunder- power Thunderbird with pro- equipped power bird with ceeding at per 30 to 35 miles hour with the proceeding per and was at to 35 30 miles engine running, from pounds pres- 3 to 6 hour, require it pounds 4 to 8 sure required would be to turn at force the wheel to turn. miles At 20 wheel. If the engine stopped firing and per require pounds. hour it would 6 to 10 there was a shift gear to neutral so the per require At 5 miles hour it 12 to motor over, was not turning pounds 4 8to pounds. 20 stationary, If the vehicle was required would be to turn the wheel if the require pounds. it would Accord- 50 car were proceeding at 30 per to 35 miles conducted, he has is the tests hour. The driver still has control of the perceptible increase in force needed car. If the car position is left in drive at to turn the wheel where the is automobile 30 to per hour, 35 miles the engine will still equipped power steering with which is not be turning power system over and the will working and an automobile that is not speeds work. As increase it will take equipped power with If the vehi- slightly less force to turn the wheel. If the moving cle it turn is takes no more force to speed is reduced to per about 20 miles hour equipped wheel on a 1959 Thunderbird will pounds take 6 to 10 of force to turn power steering operating with is not power wheel if the steering working. than an automobile that is not is, reason, If the system for some power steering. working it would take same force speed at the same condi- College under the same Professor Martin of Texas Tech. greater pressure tions. The reason is re- made tests on a 1959 Thunderbird. He quired when is reduced first turned off ignition while the auto- rolling moving assist not available is gear mobile and left becoming friction is position. closer to static friction. drive ignition then turned the per At 10 power steering miles hour with off and shifted neutral. These tests working require pounds. If traveling it would 3 to 6 were when the car at made power steering inoperative, speeds per becomes 10 at various 20 and 50 miles between per speeds miles per hour would take from 8 to hour. At miles hour pounds. per position gears miles hour At drive

1J representation, jury the in the power system because the mo- still worked repre- Special found per miles answer Issue 6 tor still turned over. Below 20 the applied the turning. as stop In untrue hour the motor would sentation was system not at the at which steering the was turn- each instance when motor just the power, pellee’s moving was before ing so no the car there was answered, response to in braking operated essentially the as Then accident. same repre- oper- Special making the operation. -the in It No. that when was Issue negligence. having ated the as a car conven- sentation was same equipment. tional To determine force

necessary move the fluid the conclusion have reached We linkage put grease rack so on a probative force there no evidence of that its the floor. He wheels were off of supporting the answer or the submission full turned the wheel the distance Special Nos. 6 Issues and 7. right oper- left when motor ating and it was in- not. each Ford, recognize that as We stance he able to full turn of the make automobile, is under manufacturer wheel no finger. with the little There was speak duty, speak, if it assumes to fluid more force needed move truthfully operational at concerning the greater off. The force needed speaks product. un of its If it tributes to turn wheel when car is on the truthfully representation and such ground is not because of measurable pru by ordinarily not been made force needed to move the in the link- fluid person ordinary dent in the exercise of age, but due to drag is caused care or similar circum under the same being stationary ground. wheels on the person rep stances, relying on the then a placed grease the car on rack deter- such dam recover resentation entitled to necessary mine this the fluid force to move ages proximately neg result as stationary because if the car were on the theory ligent representation. was the This ground drag thus caused over- case which the was tried. necessary shadow to move force tried, Ford, theory of breach fluid. The force to move the warranty. no doubt that We have would, however, fluid the same. The Texas there be no the rule that need witness that the stated sensation Puskar privity purchaser between the brake he had having a hard meant made under these circumstances manufacturer application full sensa- the brakes. theory negligent represen recover on the turning tion of wheel and briefly only be tation. discuss this response getting no meant was full point con cause at one Ford seems to while application the brake and there slid- privity negli cede there need pave- of the wheels like on ice or wet case; point gent representation at another ment and no force on the wheels which urges privity. An automobile absence change would tend to direction of the car. can, instrumentality is an because of physical He also testified on a basis of the characteristics, operational become dan its facts, car, apart from damage to the gerous operator occu to the and others who per it was going at least 45 miles hour. py are characteristics highways. There regard such we have here with Special In answer to Issue No. 4 the system, potential power steering that are represented jury found Ford if the operational are danger if its attributes stopped the automobile if the expe operator without known. power system properly operating was not likely difficulty and very rience is to have plaintiff would have safe and error learning face trial danger full of the car conventional control Then, finding operational This after reliance of such characteristics. *11 recognized by fact representation power Ford when it made was that without the dealers, pass pur- available its steering operating operator on the still would products, chasers Ford its steering manual which have safe and full of the control representations contained the steering. involved here. car with conventional Conven- position It was in a asserts, to know the facts that steering, tional he the same means operator the except through could not know steering equipped as an automobile not operation process trial and error system which power steering would have. He learning pur- involves risk urges undue to all who then it takes more exertion to turn product chase the and those within the fore- the wheel where the automobile is operation. seeable zone of this equipped power is for steering system with a duty reason that the manufacturer has a system power operating, where the is riot those danger within the foreseeable zone it than does to steer automobile not so speak truthfully non-negligently if equipped power system if the because does speak. assumes to operate That is the reason not additional manual force is need- privity there need of contract between linkage. ed the to force fluid the the purchaser manufacturer of its product; not suit is for breach of con- First, we must look at the whole of

tract. by the language used Ford to determine representation what its really was. The While have found no cases we Texas very representation first sentence of the dealing necessity with the in privity power steering “Up states: to 75% circumstances, these exact we think of the effort your needed to steer Thunder principles we have stated are established is taken bird Power Master-Guide similar liability of the situations such ” * * * Steering. par Then in the next product negli manufacturer where his is agraph this is stated: “Master-Guide gently manufactured the food provides Steering only assist sale cases. but We need discuss them your Thunderbird’s running.” is merely City cite Putnam v. Erie Manufac Then follows statement Company, turing (5th Cir.). F.2d 338 911 power system operator not operating is thoroughly This cited case discusses will have “safe and full control” Texas cases. There are other cases from of the car steering.” “with conventional jurisdictions support liability of the all When language is considered purchaser manufacturer to the ultimate representation system that if is though privity there be no between them. is not working you will still have safe Probably the leading case is that of Baxter you and control of the car because Co., 456, v. Ford Motor P.2d 168 Wash. still require will have but it will 409, 521; 88 A.L.R. 179 Wash. 35 P.2d operate more effort to than when the 75% 1090. Much has been written on this case power system representa working. discussing whether on was decided tion thus what is defines meant conven breach deceit. See following law Michi opinion review articles: 38 tional And of all 964; gan Law Review Michigan Law experts is that with such should be 1; 22 Washington Review Law Review able to control the car. 406; 445; 18 Cornell Quarterly Law

42 Marquette evidence, Law Review 521. There can which we above de- doubt, however, be no tailed, that the manufac wholly falsity fails to show representation. Appellee’s expert, who was duty turer as we has such have above issue, his witness this nowhere stated. gives probative evidence of force to show support bases his at the at which the was mov- Here jury’s just answers contention that the accident statement before testimony A above will testimony- reference to the give He does not was false. purchase requires days that a few after the show Thunderbird showing a 1959 Ford noticing would die began greater to steer when the force application of the brakes. on full He required in a car lost than is supported friends. one of his power steering. tes- What this and calling testified to Roach about ex- timony gave general he based on 1,000 wait until the mile check- car and told to periments had such a made with up the car in. While no makes, bringing before including Motors other General *12 report, any one at Roach’s recalled such give to a 1959 cars. He could no values as they if one of Roach’s witnesses testified expressions His of Thunderbird. were had been had been called and this behavior he ad- averages on all cars used and based they recog- to them described would were differences in dif- mitted there vast Too, something nized it was to concerned the ferent of automobiles. makes they about to and would have told based averages stated him were of force bring waiting. the car in Roach without essentially made while the cars on tests recognized that the point condition existed stationary. only in his tes- necessary ad- repre- obligated to make the timony approaching that the evidence justment testified, repair. or the evidence false While sentation was was where he day Saturday, does that on the pounds, but show guess “I would to 30 extra accident, bring the told to Roach I is not estimate don’t know.” This Monday, testimony in on the when had based on recollection because he stated previous telling calls developed and Roach’s he did not have the values he 1,000 check-up him to wait until the mile is experiments his did he from and not considered, it is a immediately we feel tantamount to “guessed”, state he but he fol- repairs they refusal to make the byit did not know. lowed statement he they have been made. If had been should probative This is not of value. probably made the not have accident would clearly testified witnesses Ford happened. represen- showing to facts the truth says it not liable under its war- Roach is no

tation. The result is that witness testi- ranty liability because it limited its a re- to fied to facts from which inference placement parts repair of defective and reasonably repre- could be drawn that workmanship. adjustment of defective sentation was false. Appellee’s position apart is that from the liability by is follows that there express warranty implied is an war- Ford, liability theory nor is there on this ranty product of the fitness of the for the part of Roach. Too, urges use for which was sold. any against that is such limitation asserted must, however, We determine the liabili- public policy. theory ty part of Roach on

warranty repair. appellee’s As negligent pleading construe and refusal we 3, rely upon

Issues did court, any implied warranty in but the trial are the view that there We upon express warranty. As force, probative evidence of and it suf warranty above-quoted limita- is ficient to show that the automobile tion. brakes; application on full die appellee requested that Roach make the repair prevent adjustment There seem to be no Texas cases

it; refused; point. Appellee urges that was neg directly Roach ligence proximate Hopkins, v. and such was cause of American Coach Co. 355 S.W. e.; (Tex.Civ.App.), ref., accident. 2d 83 n. r. Brandt

jen Tarter, Kluge & v. 236 S.W.2d 550 preponderance weight of the evi- ref., e.; (Tex.Civ.App.), n. r. and McCown dence. Jennings, (Tex.Civ.

v. 209 S.W.2d 408 complaints All have been considered h., App.), controlling n. w. are and that us and specifically those not discussed are give do not effect such limita overruled. warranty. tion of this think there was warranty more than one in those involved judgment of the trial court limiting cases and the language there dis Ford Company Motor reversed and ren- applicable cussed dered. The judgment court as trial limiting sued on. Here think we lan Bissonnet, Inc., Roach affirmed. Jack guage applicable clearly war ranty by appel- of Roach that was sued on public policy

lee. We know of no in this for Rehearing On Motions parties prevent state original opinion upheld our judg- contracting liability to limit we so as their *13 ment against Roach negligent because of in was done case. The contract of this repair. rejected refusal to parties liability We given must be effect to. United of Roach based on its States for of Armco dealer’s war- Use Benefit ranty that the Drainage automobile was warranted as v. Vander & Metal Products being workmanship Heyden, Fed.Supp. free defects (U.S.D.Ct.S.D. 158 930 Inc., materials. The basis of our Ill.); Motors, decision in Shafer Reo 205 F.2d v. respect this warranty was that relied (3rd Brockway Cir.); Runco v. Motor appellee expressly Co., Inc., limited Roach’s li- Pa.Super. 63 A.2d 397. ability replacement, charge, without jury acquitted all acts of parts the defective There material. was contributory jury negligence. The also pleading by no limiting provi- which this acting emergency found sion being illegal was attacked because as prudent emergency and in such acted as a contrary public policy. Appellee merely person. probative We find evidence of express he, warranty sued on the there- support force to the submission of all of fore, pleading, the absence attack say jury’s issues and cannot these we took as written. On contrary answers to of them are appeal, so time, for the first so far as the rec- overwelming weight preponderance shows, ord language the limiting asserts wrong. clearly of the evidence to be contrary public policy and therefore ineffective. We we knew no stated do doctrine volenti not feel the public policy in state- Texas. We feel such injuria applicable under the non fit really unnecessary ment our deci- present. Halepeska v. Callihan facts here sion public policy because no issue Interests, Inc., (S.Ct.). We, 371 S.W.2d made in trial court. therefore ex- press view prop- as to this should is no to show holding evidence erly appeal. raised the trial court and on representation Ford and falsity of the question Roach, reach the appel- we do not rehearing motions for filed in relation jury’s answers lant Roach and whether Puskar are over- overwhelm- contrary this matter are ruled. and the notes idle were Both roads things ing any here odor of alcohol. are ments Other made. a jumped flaky shell surface. car notice are checked. car particular pretty deep car He could tell predelivery ditch. check list on this plowed made swung by up around curve check con- was not available. The road engine dying on the back application, sists of brake tire. applications, front medium fast brake taken the scene The automobile was pull application driving end brake shows by Knapp Chevrolet. The evidence rough Be- roads, listen for rattles. Knapp traced from the automobile was nothing cause new car it is unusual a is stiff sold purchasers. It was through several inexperienced for the motor die on an com- company salvage finance to a by the during rough driver the first 1000miles. If been only repairs shown to have pany. The idling appears wrong is all that Whitis, man done were done named car, mix- could caused incorrect repairs purchasers. He said no one of the gas ture of air and in the carburetor and power power steering or made to the require adjustment idle to the any recall that braking system. He didn’t by leakage screw. It could be caused control adjustment in the idle was made high spark wires, many tension plug usual- in a wreck but car that has been things. other could Any service station repair system. ly requires linkage adjustment. make the new carburetor aOn and the thoroughly road tested the car car idle screw is will idle set so car power steering worked brakes and keep faster and dying. the motor from oth- normally. The car was sold to several car, Ferguson, Mr. who sold testified persons purchaser testified er and each ap- that when he delivered the he told power steering use of the brakes keep a things list of the he found normally. functioned and that both wrong so he could turn it over the serv- appraiser Mr. car, who examined the One department ice mile when he had the 1000 steering valve Barefoot, testified the inspection. He remembers called wreck and assembly damaged performance him once or twice about one would replacing estimated with new In making the car. the sale he told However, person repairing be $28.50.