*1 is legally factually evidence suf- support jury’s ficient to finding that the

plaintiff Spradlin released un- covering

der the lease plain- suite 325. The

tiff’s challenging error the suffi-

ciency support of the evidence to this find- are, therefore,

ing, denied. In view of this

determination it becomes unnecessary to plaintiff’s points

consider the of error re-

garding of whether the build-

ing manager apparent had authority to bind plaintiff express to an agreement of

release. of the trial court is af-

firmed.

LUBBOCK MANUFACTURING

CO., Appellant, SAMES, III,

William Administrator of Verduzco,

the Estate of Jesus

Deceased, al., Appellees. et

No. 8159.

Court Appeals of Civil

Beaumont.

Nov. 1978.

Rehearing Denied Dec. *2 Antonio, Ball, appellant. for

Damon San Austin, Hazel, appellees. J. Patrick for CLAYTON, Justice. appeal involves the of ven-

This against brought ue an action (hereinafter called Manufacturing Company defendant), County, a resident of Lubbock Texas. originally filed

This suit Sames, III, as Adminis- by William Verduzco, de- trator the Estate of Jesus ceased, Vidua de Ver- and Francisca Cedillo friend of duzco, and as next Individually, Verduzco, Jesus children of the minor against (hereinafter plaintiffs) called ceased defendant, Equipment Truck Fontaine Inc., Corporation, and Altamil Surtigas, S.A. as plea privilege, its

Defendant filed in Lubbock to be sued serting its residence. Plain county of its County, controverting plea, contend tiffs filed in Maver that venue was maintainable terms of Tex.Rev.Civ. County under the ick 4, 23, subdivs. 29a art. Stat.Ann. 9a, (Vernon (Vernon 1964), subdivs. Supp.1978). defendant’s court overruled

The trial hearing, to the privilege. Subsequent order, this rendition of the but prior Val Verde cause was transferred to Texas, Tex.R.Civ.P. pursuant subject taken to and with- such action was plea. Appel- prejudice turning out defendant’s of the trailer . . . and the fire complaint therefrom, lant makes no to this action un- which resulted which oc- Pass, Eagle curred in der Rule 257. in Maverick County, . . that Lubbock Manufac- deceased, Verduzco, was the Jesus driver turing Company manufactured and sold the *3 S.A., Surtigas, of a tractor-trailer which liquified petroleum gas transportation tank Pass, in Eagle overturned Maverick County, . which was involved in the acci- exploded, persons, and killed several includ- . dent . . and which trailer was at- Sames, III, ing Jesus Verduzco. William tached to the truck ... at the time was named Administrator of the Estate of of the incident. Lubbock Manufacturing Sames, III, a Jesus Verduzco. William was Company is in the business of manufactur- County, resident of Maverick and the ad- selling petroleum and liquified gas of the of ministration Estate Jesus Ver- ” tanks. . . . pending County. duzco was in Maverick Venue is maintainable in Maverick Coun- which ex- tank-trailer overturned and ty provisions under the of subdiv. 23 of art. manufactured, ploded designed, was and 1995 if plaintiffs proved have a cause of by Manufacturing sold action, action the and if cause of part a corporation, private a which maintained its thereof, County. arose Maverick place County. of residence in Lubbock The record reflects that the pleas None other filed deceased was defendants of driving the truck and tank trailer along the privilege. Pass, highway Eagle near not findings The trial court did file the a when truck took sudden turn law, of fact and conclusions of and none to the left and then a turn sudden back to requested. were Under these circumstanc the right and then overturned. The truck es, the of the trial court should be tank, turnover, and after the “traveled for there upheld if is sufficient evidence of a distance 85 to of 95 feet before the explo- probative value in the record to sustain sion resulting and fire.” any plead venue under of the subdivisions One plaintiff’s expert of witnesses testi- Collins, v. Tex. ed. Banks fied that he found defects in the tank-trail- (1953); v. Sharp, Loomis areas,” er design “basically three and (Tex.Civ.App. S.W.2d 955 — Texarkana those areas “are a such three that it Davis, dism’d); Key writ S.W.2d 60 tends propensity to a for overturn of the writ). no — Amarillo vehicle. does not provide It resistence by plaintiff The cause of action asserted penetration to a or a or breaching failure of was strict tort in that the easily tank as result of an anticipated in design the tank-trailer was “defective involving an overturn of the trail- that said and/or manufacture and defect er.” the tank was existed at time that said intro- Another witness the initial speed testified the duced into stream of commerce and said immediately preceding of the truck the defect caused contributed cause the leading up events to the overturn to be of

injuries subsequent death Jesus Ver- hour,” “from 67 70 miles an and that the duzco, deceased. . . .” speed overturn to be 35 miles an hour. Appellant’s and fourteenth thirteenth an testimony expert Further wit- complain of the trial court’s of error “considering ness that the reconstruction overruling privilege action in the of accident], gravity the of center of [of evidence, is or insufficient because there no trailer, the radius of the curve and the evidence, that a action cause of arose in turnover,” speed of turn of at radius Maverick reasonably the tractor was a foreseeable stipulated by parties might engaged It was in by maneuver that be . “[djamages plain- operator type sustained driver or of a tractor of “this character,” proximately turning tiffs caused the over- and that such ma- was testimony a reason- There is other “should be foreseeable that the center neuver manufacturer.” This witness ably prudent gravity very critical and that that, considering “turnover, itself, further testified arose from driver control trailer, center high and the contents of the because he has turned combination on a available, condition gravity, the road speed radius which was—is critical for the environment of use of this tractor-trail- traveling for which he was . ..He rendered the trailer as er combination turned on a radius such that he exceeded unreasonably dan- and constructed signed the limit of the truck-tractor semi-trailer as the “truck- gerous. He also testified that far expert as turnover.” The witness semi-trailers, they' high have CGs tractor asked, being higher “. . and the gravity], and so this makes them [centers gravity center of of a unit would it be .” With susceptible to turnover. say greater axiomatic to its likelihood com- susceptibility of turnover then the answered, of overturn?” He “That would *4 liquefied pe- modity being transported —the you be true because as raise the center of unreasonably dan- gas troleum to the —adds gravity given you on the same radius then gerous propensity and condition. “[S]o speed reduce the at which it would turn the—to existing, with this condition then you over. As lower gravity, the center of it, the of alleviate this or reduce CG [center speed up then the for this given comes same trailer should be lowered in gravity] of the radius.” susceptibility its to turn- order to reduce over.” Plaintiffs’ cause of action was as serted a strict as tort case under testified that expert An witness further provisions (Second) of the Restatement “if the material in the tank remained elastic (1965). of applies Torts 402A The rule § just then the stress induced in the tank due unreasonably dangerous products whether loads, bending including and not production defect occurred in their or pressure internal loads would be far in ex- design. Garza, v. Rourke strength of the ultimate of the materi- cess (Tex.1975); Henderson v. Ford Motor constructed; al out of which the tank is so Co., (Tex.1974). this, then, do, fact, would tell us that we problem have a potential prob- least a —at carefully We have reviewed all the lem with this tank in the event that it does evidence which approximately consists of over, area, roll then and the third as I pages seven hundred in the statement of recall, is the fact nothing that there is facts, we hold that such evidence is and design of attempt this tank to to limit factually support finding sufficient to a severity of the hazard in the event that the trial court that a cause of action under the tank actually is breached. That tois provisions (Second) of Restatement of say that when the tank is actually breached proven Torts 402A was in that § the tank- expect complete we could disbursement of trailer was defectively designed, that it was tank, and, the entire content of the of unreasonably user, dangerous to the course, this; there are alternatives to very that the nature of the tank-trailer was compartmentize is to the tank in such a [sic] such that there been no had substantial you might fashion that part breach itof change in the condition in which it was sold lose, say, percent of the contents or Therefore, the manufacturer. judg might whatever the case be losing without ment of the trial court should not be dis course, the entire contents. very Of se- Collins, v. supra; turbed. Banks Loomis problem vere is associated with particu- this Davis, Sharp, supra; Key v. supra. lar area which happened particular in this action, proving accident and that is the In addition to a cause of rocketing effect in say provisions the event the back under the of end the tank is Tex.Rev.Civ.Stat. broken off. I think in Ann. particular necessary case art. subdiv. it is action, the tank rocketed prove part about a third of a mile— that such cause of or magnitude.” thereof, that order of arose in Maverick to be decided here is wheth- action in strict tort liability, and the con- er a cause of action based strict tort duct of the manufacturer or place liability in design defective cases can be where such conduct occurs is of import no brought, purposes, for venue under sabdiv. in so far as the place where the cause of 23 of art. in the county where the action arose is concerned. We hold that in occurred, notwithstanding the fact cases of strict tort liability that the defect in was manufactured fective design, the cause of action being county created in a other than the forum properly proven, arises in county where county. the defectively designed product exists and causes the accident and is the producing Supreme Court,

Our Garza, in Rourke v. cause physical harm sustained. (Tex.1975), states, 530 S.W.2d 794 We with ref- therefore hold that venue in erence to a strict this case liability case, tort is “A maintainable finding negligence is not under required. In fact, Tex.Rev.Civ.Stat.Ann. supplier art. may be liable subdiv. 23 though even (Vernon 1964). he possible has exercised all care in the preparation product. and sale of his agree We with appellant that ven While the definitions ‘negligence’ ue in Maverick County is not maintainable design’ may ‘defective have certain similar 4, 9a, under 27, 29a, subdivs. and 31. elements, they common sepa- involve two of the trial court in over- rate recovery.” theories of *5 ruling appellant’s plea of privilege is af- In the very recent case of Gon firmed. Caterpillar zales v. Tractor Company, 571 AFFIRMED. (1978), Supreme S.W.2d our Court again reiterates its distinction between “negli KEITH, Justice, dissenting. gent” design and “defective” design. The I respectfully dissent. states: Court While driving the truck-tank combination by

“The care taken supplier of a the in County, plaintiffs’ Maverick decedent— product in its preparation, manufacture, through inadvertence, negligence, or acci- sale, is not a consideration in strict rig; skidded, dent —overturned the it is, rup- liability; however, the ultimate tured, and he was killed. Defendant was question negligence in a action. Strict because, sued more years earlier, than nine product looks at the itself and it had manufactured and sold the tank in determines if it is defective. Negligence Lubbock County in accordance with looks at the acts of the the manufacturer and provisions of Liquefied the if it exercised Petroleum ordinary determines care in Gas Code.1 This particular tank had design production.” been at- tached to various trucks and trailers and Following language in the Gonzales had traveled more than nine hundred thou- case, emphasis point, or focal with ref- sand miles —more than four times the dis- erence to the cause of action in strict tort tance from the earth to the moon peri- at liability, placed upon is and should be gee incident. —without product and defective of the not Defendant is not upon the conduct of the manufacturer in shown to have done design. anything It in creating the defective follows Maverick County which con- then is that the cause of action tributed to the accident or injury decedent’s product and not except the condition that it manufactured death — manufacturing product. the acts in tank in Lubbock in accordance e., i. product, designs The condition of the the de- with approved by the agency rise to the cause design, gives charged fective with promulgating and enforcing 1. At of the manufacture and sale of the time statute has been recodified and the “LPG Code” is now found in 2 Tex. Natural Re- question, the tank in the statute was Tex.Rev. 6066d, seq. (1962). 113.001, seq. (1978). Civ.Stat.Ann. art. et The sources Code §§ et disagreement The Court then noted its with liquefied pe- safety transportation in the by stating, concluded another case and “We gas. troleum holding present with in the agree ease.” court, majority of this without Now the 760) (553 at that any authority point, in holds citation of holding facet of the There is another the truck in designing acts in defendant’s which disturbs majority me—the failure cause of County gave rise to a recognition give proper to dual bur County solely because action by plaintiffs seeking den assumed to hold a in the damages occurred corporation foreign county domestic in a in nearly The case most county. latter under subdivision of the venue statute. attention is my has come to point which necessary predicate recovery to a Works, Inc., 558 Welding Pesek v. Murrel’s out every tort action set Chief Jus 39, Antonio S.W .2d — San Development tice Greenhill in Abalos v. Oil dism’d), involving alleged writ (Tex. Co. of unit which design of a hot oil defective 1976): sought to recover on strict exploded. Pesek “[A]ny plaintiff prove of the defective must liability in tort because the existence court, pass legal duty and violation of a design of the hot oil unit. owed to him that con the defendant to a similar establish tort liabili- ing upon us, ty.” (emphasis supplied) fronting said: oil unit assert the hot “Plaintiffs holding Under the definitive made in Em when manufactured and was defective Clark, ployers Casualty Co. v. 491 S.W .2d such, at the As the breach occurred sold. (Tex.1973), the plaintiff, relying such manufacture and sale of time of the upon subdivision must establish his Hockley County which was in property, “by cause of action proving at least a Moreover, not the defendant did and a breach the defendant of the corre anything, participate contract to do sponding duty.” in Frio Texas. any transaction sought Plaintiffs to establish the exist *6 damages injury The fact that ence of a legal duty owed defendant to in Frio Texas is insuffi- occurred the invocation decedent of Section or a cient to show that the cause of action 402A, Restatement, bring Torts 2d. To County.”2 in part thereof occurred Frio section, themselves within this it was their Klingeman, writing Justice for the court burden to show that the tank was unreason Pesek, cited, alia, inter Johns-Manville ably dangerous (their decedent) to the user Co., Inc., Corp. v. Haden Sales S.W.2d because of the defective thereof. 415, 1976), Worth duty This was but half of their under Aba — Fort n.r.e., curiam, 553 per writ ref’d los, supra, since it was also their burden to (Tex.1977). prove the violation of the legal duty. West Hart, Tex., ern Wool Commission Co. v. holding Supreme Court stated 131, 132 (Tex.Comm.App. opinion S.W. Johns-Manville: the intermediate court in adopted); Mercantile Bank & Trust v.Co. reversed, appeals of civil hold- “The court Schuhart, 115 Tex. 277 S.W. only of Haden Com- ‘portion’ that the (1925). ‘accrued’ in of action which pany’s cause I am majority Wichita was the sustentation disturbed that the has not plaintiffs Haden addressed the failure of the to damages the cause ‘part satisfy imposed alone is not a both elements of the burden damages meaning plaintiffs within the of subdivi- this cause. Defend- of action’ been, effect, 27. 415.” ant’s have overruled sion counsel, admitting that Pesek than tort.” Such a rationalization must come 2. Plaintiffs’ able contrary” position surprise opin- “appears taken as a distinct to the author of the to be case, argues by plaintiffs for widow and in this that the author ion and to trial counsel Pesek’s viewing rather children. this as contract of Pesek “was the ex- Assuming, arguendo, silentio. sub legal duty plaintiffs’ dece-

istence of (under 402A), I find no evidence

dent § legal a violation of that

tending to establish

duty in Maverick the rationale of I would follow

Since Pesek, judg- I dissent from

Clark and the trial court’s denial which affirms

ment to be sued in the coun-

of defendant’s

ty of its domicile. MILLER, Appellant,

Douglas Alfred MILLER, Appellee. Lynn

Barbara

No. 6785. Appeals of

Court of Civil

El Paso.

Nov. 3, 1979. Rehearing Denied Jan. Hollen, Austin, appellant. Ted for Associated, Burnett, Warren E.

Warren Ahders, Odessa, Burnett, appel- W. Ruff lee.

OPINION *7 OSBORN, Justice. an order sustain-

This is an appeal of the trial jurisdiction in a case Court filed an Arizona resident relationship. We involving parent-child affirm. parties these was marriage between signed decree on

terminated a divorce named the That March Miller, Lynn managing Appellee, Barbara two minor chil- parties’ conservator of the dren, Douglas Appellant, named the Miller, conservator. Mr. possessory Alfred rights for given specified certain Miller children, possession access to and and on including one month each summer