416 S.W.2d 779 (Tex. 1967), A--11753, Shamrock Fuel & Oil Sales Co. v. Tunks

Docket Nº:A--11753.
Citation:416 S.W.2d 779
Party Name:SHAMROCK FUEL & OIL SALES CO., Inc., Kelth L. Ward and Johnny Hale, Relators, v. Honorable Bert H. TUNKS, District Judge, William Earl Munsinger and Omy Ray Munsinger, Respondents.
Case Date:June 07, 1967
Court:Supreme Court of Texas

Page 779

416 S.W.2d 779 (Tex. 1967)

SHAMROCK FUEL & OIL SALES CO., Inc., Kelth L. Ward and

Johnny Hale, Relators,


Honorable Bert H. TUNKS, District Judge, William Earl

Munsinger and Omy Ray Munsinger, Respondents.

No. A--11753.

Supreme Court of Texas.

June 7, 1967

Dissenting Opinion June 21, 1967.

Rehearing Denied July 5, 1967.

Page 780

Fulbright, Crooker, Freeman, Bates & Jaworski, Russell Talbott, McGregor, Sewell, Junell & Riggs, Ben G. Sewell, Houston, for relators.

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

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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 Article 5, § 3 of the Texas Constitution, Vernon's Ann.St. and Article 1734, Vernon's Ann.Tex.Stats. The statutory enactment provides that this Court may 'compel a judge of the district court to proceed to trial and judgment in a cause agreeable to the principles and usages of law, * * *.' In this particular, the Supreme Court has concurrent jurisdiction with the Courts of Civil Appeals. Article 1824 provides that, 'Said Courts (of Civil Appeals) * * * may issue the writ of Mandamus to compel a Judge of the District or County Court to proceed to trial and judgment in a cause, * * *'

In accordance with the usual practice applicable to situations involving concurrent jurisdiction, Houtchens v. Mercer, 119 Tex. 244, 27 S.W.2d 795, Id. 119 Tex. 431, 29 S.W.2d 1031, 69 A.L.R. 1103 (1930), Appellate Procedure in Texas, § 1.4 (1), the relators first applied to the Court of Civil Appeals. That court refused to grant the writ of mandamus, 406 S.W.2d 483, whereupon the relators made application here.

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 of that no cause of action was stated or proved in the absence of a pleading and

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evidentiary showing of privity of contract. The power with which we are here concerned is that of ordering a judgment to be rendered upon a verdict which is classified as a ministerial act involving no exercise of judicial discretion. Lloyd v. Brinck, 35 Tex. 1 (1871), Gulf, Colorado & Santa Fe Ry. v. Canty, 115 Tex. 537, 285 S.W. 296 (1926). The authority vested in the appellate courts under Articles 1735 and 1824, insofar as the rendition of judgment is concerned, is restricted to the ordering of the ministerial act of rendering judgment upon the verdict and does not extend to the judicial function of determining whether a petition states a cause of action, Jackson v. McKinsey, 12 S.W.2d 1044 (Tex.Civ.App.1928, Original Mandamus), or whether the undisputed evidence demonstrates that a judgment should be rendered as a matter of law, i.e., that a verdict should be directed or a judgment, non obstante veredicto, rendered, American Bottling Co. v. Briggs, 232 S.W.2d 103 (Tex.Civ.App.1950, Original Mandamus), Appellate Procedure in Texas, Original Jurisdiction of the Courts of Civil Appeals to Issue Extraordinary Writs, § 1.4 (2), 8 Sw.L.J. 389 (1954).

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 (om 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 Vassalo 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

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of action, has recently said that where a plaintiff 'fails to act as a reasonably prudent man in connection with use of a warranted product or one which comes into his hands under circumstances imposing strict liability on the maker or vendor or lessor, and such conduct proximately contributes to his injury, he cannot recover'. Maiorino v. Weco Products Co., 45 N.J. 570, 214 A.2d 18 (1965), following Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 212 A.2d 769 (1965). It seems, however, that the weight of authority is contrary to the view expressed by the New Jersey court.

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, 1. c. 21:

'The cases appear to be in...

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