Jack Roach-Bissonnet, Inc. v. Puskar

• Decision Date: 22 March 1967
• Docket Number: ROACH-BISSONNE,No. A--11083,INC,A--11083
• Parties: JACK, Petitioner, v. Daniel J. PUSKAR, Respondent.
• Court: Texas Supreme Court

Page 262

417 S.W.2d 262

JACK ROACH-BISSONNET, INC., Petitioner, v. Daniel J. PUSKAR, Respondent.

No. A--11083.

Supreme Court of Texas.

March 22, 1967.

Rehearing Denied July 5, 1967.

Fulbright, Crooker, Freeman, Bates & Jaworski, Gibson Gayle, Jr., Houston, for petitioner.

Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer, Houston, for respondent.

Baker, Botts, Shepherd & Coates, Finis E. Cowan, Houston, for Ford Motor Co.

WALKER, Justice.

This is a products liability case arising out of a one-car accident. Recovery is sought against the manufacturer and the dealer on grounds of breach of warranty, negligent misrepresentation, and negligence in refusing to repair. We hold that neither defendant is legally responsible for the accident, because the evidence is insufficient as a matter of law to show: (1) that the representation relied upon was false, or (2) that the accident was caused by the failure to repair or by any defect existing at the time the automobile was delivered.

Daniel J. Puskar, plaintiff, sustained personal injuries while driving alone in a 1959 Thunderbird automobile manufactured by Ford Motor Company. He had purchased the vehicle new from Jack Roach-Bissonnet, Inc., hereinafter referred to as Roach. Plaintiff brought this suit against Ford and Roach to recover damages for his injuries. The trial court rendered judgment on the verdict in his favor and against Ford and Roach, jointly and severally, for $60,815.33. The Court of Civil Appeals affirmed as to Roach, but reversed the judgment of the trial court and rendered judgment that plaintiff take nothing as to Ford. Ford Motor Co. v. Puskar, 394 S.W.2d 1.

The accident occurred shortly after midnight at the T-intersection of Roark and Alief Roads in Harris County. On the occasion in question, plaintiff was driving the Thunderbird in a northerly direction on Roark Road, a graveled road which intersects but does not cross Alief Road. When plaintiff was some 125 to 200 feet south of the intersection, he saw the stop sign controlling vehicles entering Alief Road. He thereupon made a heavy application of his brakes, but there was little or no response. When the automobile reached the intersection, plaintiff attempted to turn to the right but the steering wheel would move only a few inches. He was unable to turn the vehicle, and it continued north across Alief Road, which is about 33 feet wide, across a ditch and into an embankment. Plaintiff was seriously injured in the accident.

When the automobile was purchased on May 2, 1959, plaintiff received from Roach its dealer's warranty that each part of the vehicle would be 'free under normal use and service from defects in material and workmanship for a period of ninety (90) days from the date of delivery of such product to Purchaser, or until such product has been driven, used or operated for a distance of four thousand (4,000) miles, whichever event first shall occur.' The warranty was expressly made subject to certain limitations and conditions which are not material under our view of the caes. Plaintiff also received from Roach an owner's manual issued by Ford and describing various features of the automobile. The relevant portions of this manual are as follows:

'MASTER-GUIDE POWER STEERING

'Up to 75% Of the effort needed to steer your Thunderbird is taken over by Master-Guide Power Steering. Yet, this optional hydraulically operated steering system allows you to retain the natural feel of the steering wheel, particularly when you're driving your car along the open highway.

'Master-Guide Power Steering provides a power assist only when your Thunderbird's engine is running. However, even if your engine is stopped, or if the power system should not be operating normally, you'll have safe steering and full control of your car with conventional steering.'

'SWIFT SURE POWER BRAKES

'The low-level pedal for the optional vacuum-operated Swift Sure Power Brakes system will operate with approximately one-third less pressure than the conventional brake pedal for most normal stops.

'If, for any reason, Swift Sure Power Brakes should completely lose their brake-assisting power, your Thunderbird's conventional hydraulic brake system will remain fully effective and it will take over to permit you to stop the car safely when you push down the brake pedal.'

Plaintiff read the dealer's warranty and the owner's manual. He understood, believed and relied upon them. After delivery of the automobile, he proceeded to drive it and found that it operated normally with a few exceptions. The motor died once while he was backing out of the driveway, and the same thing happened on several occasions when the brakes were applied or when the motor was idling while the car was standing in traffic. Plaintiff noticed that extra effort was required in applying the brakes when the motor died, but he was moving so slowly that this did not make much difference. There was no reason to turn the steering wheel on any of these occasions.

Plaintiff telephoned Roach several times to complain about the performance of the automobile. He was assured that it was operating normally and was told to keep a list so the necessary adjustments could be made when the car was brought in for the 1000-mile checkup. On Saturday, May 30th, plaintiff telephoned Roach again and complained vigorously because nothing had been done. He asked to be allowed to bring the car in, but was told that Roach could not service it then or on Monday. Roach instructed him to bring the car in on Tuesday, which he agreed to do. The accident occurred in the early hours of Sunday, May 31, 1959. This was 29 days after Roach delivered the automobile to plaintiff, and it had been driven less than 1,000 miles at the time.

By their answers to the primary liability issues, the jury found: (1) that in purchasing the car, plaintiff relied upon Roach's warranty that the vehicle was free from defects, (2) that it was not free from defects, and (3) this was a proximate cause of the accident; (4) that Ford and Roach represented to plaintiff that when the engine of the automobile stopped or the power steering was not operating normally, he would have safe steering and full control of the car with conventional steering, (5) that plaintiff relied upon such representation, (6) which was untrue as applied to the steering system at the speed at which the car was moving just before the accident, and (7--8) the making of the representation was negligence and a proximate cause of the accident; (9) that Ford and Roach represented to plaintiff that if the power brakes of the automobile lost their brake assisting power or were not operating normally, conventional brakes would remain fully effective to permit him to stop the car safely, (10) that plaintiff relied upon such representation, but (11) the same was not shown to be untrue by a preponderance of the evidence; (14) that the engine of the automobile died just before the collision, and (15) when that occurred, the braking and steering efficiency was reduced to such an extent that plaintiff was unable to safely control the car under the circumstances then existing, but (16) it was not established by a preponderance of the evidence that this was known to or should have been known by Ford and Roach; (20) that after delivery of the car, the engine died upon full application of the brakes, (21) that plaintiff requested Roach to make repairs or adjustments to prevent such dying, and (22) that Roach refused to make such repairs or adjustments, (23--24) which was negligence and a proximate cause of the accident.

The jury further found (42) that the 'collision' was not the result of an unavoidable accident, (25) that plaintiff was acting under an emergency and (26) acted as a person of ordinary prudence would have under the circumstances, (37) that there was some risk involved in operating the car, but (38) that it was not established by a preponderance of the evidence that plaintiff had full knowledge and appreciation of the risks. It also refused to find: (29) that the plaintiff failed to keep a proper lookout or (27) failed to make proper application of his brakes, (31) that he was driving at excessive speed or (33) under the influence of liquor, or (35) that his failure to stop at the stop sign or (40) bring the vehicle to Roach for inspection and adjustment was negligence.

The judgment of the trial court against Roach thus rested upon breach of warranty as established by the jury's answers to Special Issues Nos. 1--3, negligent misrepresentation as established by the answers to Special Issues Nos. 4--8, and negligent failure to repair as established by the answers to Special Issues Nos. 20--24. The judgment against Ford was based upon negligent misrepresentation as established by the answers to Special Issues Nos. 4--8. Plaintiff insists that the judgment against Ford may also rest upon breach of an implied warranty of fitness, but the Court of Civil Appeals concluded that he had not relied upon that theory in the trial court. The intermediate court held that there is no evidence to show any misrepresentation regarding the steering mechanism of the automobile, and that the limiting language in the dealer's warranty was effective to exonerate Roach from liability for plaintiff's injuries based upon breach of such warranty. It upheld the judgment against Roach upon the basis of the jury's findings that the accident was proximately caused by the dealer's negligent failure to repair.

An accurate and rather full statement of the testimony given by the various witnesses will be found in the opinion of the Court of Civil Appeals. In upholding the judgment against Roach, the intermediate court began with the premise that there is circumstantial evidence of probative force to support the jury's finding that the engine of the automobile stopped firing just prior to the accident. It then observed that motor failure was the only...