Ford Motor Co. v. Russell & Smith Ford Co.

• Decision Date: 17 November 1971
• Docket Number: No. 531,531
• Citation: 474 S.W.2d 549
• Court: Texas Court of Appeals
• Parties: FORD MOTOR COMPANY, Appellant, v. RUSSELL & SMITH FORD COMPANY et al., Appellees. (14th Dist.)

Page 549

474 S.W.2d 549

FORD MOTOR COMPANY, Appellant, v. RUSSELL & SMITH FORD COMPANY et al., Appellees.

No. 531.

Court of Civil Appeals of Texas Houston (14th Dist.).

Nov. 17, 1971.

Rehearing Denied Dec. 15, 1971.

Second Rehearing Denied Jan. 5, 1972.

William E. Matthews, Baker & Botts, Houston, for appellant.

Tom Lorance, Lorance & Thompson, John B. Murphrey, W. James Kronzer, John M. O'Quinn, Nick C. Nichols, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellees.

BARRON, Justice.

This suit was filed in the District Court of Harris County, Texas, by Steve J. LaRocca against Russell & Smith Ford Company by reason of personal injuries sustained by LaRocca when he was burned by steam and hot water from a split or burst top radiator hose on a 1965 Ford Econoline van he had purchased from Russell & Smith Ford, an authorized dealer in Ford products situated in the City of Houston. The above defendant later joined Ford Motor Company as a third-party defendant for indemnity. After trial to a jury and based upon the verdict of the jury, the trial court entered judgment in favor of LaRocca in the sum of $109,224.00 against Russell & Smith Ford, and further entered judgment in favor of the third-party plaintiff, Russell & Smith Ford, against Ford Motor Company for full indemnity.

Ford timely filed its motion for new trial in which it attacked all the findings of the jury on grounds of no evidence, as being against the overwhelming weight of the evidence, and on other grounds hereinafter mentioned. It also filed motion for judgment non obstante veredicto and to disregard certain special issues as being supported by no evidence. Russell & Smith, the retail dealer, filed a motion for new trial on the grounds that answers to special issues 1--5 fixed liability only on Ford in favor of plaintiff, and that the jury's answers to special issues numbers 6 and 7, regarding the location of the engine access cover, fixed liability on Ford. Complaint was also made in said motion regarding double and exaggerated damages as found by the jury. The latter motion was directed at the portion of the judgment in favor of LaRocca against Russell & Smith. The trial court overruled all the above motions.

Both Russell & Smith and Ford filed written notices of appeal. No appeal, however, was perfected by Russell & Smith. On April 20, 1971, Ford filed its appeal bond naming Steve J. LaRocca as obligee, in an apparent attempt to appeal the judgment in favor of LaRocca. However, on August 31, 1971, Ford filed its 'amended' appeal bond naming only Russell & Smith Ford Company, as obligee. No objection in any respect was made, and we permitted the filing of the amended appeal bond. See Rules 404 and 430, Texas Rules of Civil Procedure. But we are met at the outset with a motion filed by LaRocca for dismissal and severance as to him with an affirmance of the judgment entered below on LaRocca's behalf against Russell & Smith. We regard Ford's appeal as against Russell & Smith in the indemnity suit to be an independent suit against the third party defendant, Ford. See Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774 (1944). Where one party appeals from a judgment rendered against him, and other parties fail to appeal, the causes of action being separate and distinct, the judgment as to the parties not appealing becomes final. Speckels v. Kneip, 170 S.W.2d 255 (Tex.Civ.App.-El Paso 1942, writ ref'd); Eggleston v. Primrose Petroleum Co., 47 S.W.2d 359 (Tex.Civ.App.-San Antonio 1932, writ dism'd); Shamburger v. Glenn, 255 S.W. 815 (Tex.Civ.App.-Amarillo 1923, no writ); De La Vega v. League, 2 Tex.Civ.App. 252, 21 S.W. 565 (Galveston 1893, no writ); 3 Tex.Jur.2d Appeal and Error Sec. 340, p. 598 (1959). The indemnity action being separate and distinct from the judgment in favor of LaRocca against Russell & Smith, the motion filed by LaRocca to sever the causes and dismiss the appeal is granted and it is so ordered. Thus, we review only the judgment in favor of Russell & Smith, the dealer, against Ford Motor Company, the manufacturer, who has appealed on the question of indemnity. Ford Motor Company can be given full and effective relief without reversing the judgment of LaRocca, and Russell & Smith is not required to relitigate LaRocca's action to establish its right to indemnity or contribution from Ford Motor Company.

The jury found in substance as follows:

1. The cooling system on the Econoline vehicle was defectively designed by Ford Motor Company. 'Defectively designed' and 'unreasonable risk of harm' were properly defined.

2. Such defective cooling system was a producing cause of the occurrence in question.

3. The cooling system on LaRocca's Econoline van was defective with the 'Climatic Air' air conditioner on the vehicle.

4. It was reasonably foreseen and anticipated by Ford that dealers, users or consumers would cause to be installed air conditioners of the 'Climatic Air' type on Econoline vehicles of the type sold Steve J. LaRocca in July, 1965.

5. Such defective cooling system was a producing cause of the occurrence in question. (Conditionally submitted in the event of an affirmative answer to issue number 3.)

6. The location of the engine access cover inside the vehicle exposed a user such as the plaintiff to an unreasonable risk of harm .

7. Such location was a producing cause of the occurrence.

8. Prior to July, 1965, Ford represented to Russell & Smith Ford that installing air conditioning of the 'Climatic' type on the 1965 Econoline with the 240 engine would not render the cooling system defective.

9. Russell & Smith's installing the 'Climatic' type air conditioner on LaRocca's vehicle was in reliance upon the above representation.

10. Such representation as above was a producing cause of the occurrence in question.

11. Ford failed to give such warning to Russell & Smith Ford concerning the installation of air conditioning on the vehicle involved as would have been given by a manufacturer using ordinary care.

12. Such failure above was a Proximate cause of the occurrence in question.

13. When LaRocca raised the engine cover, he did not actually know and fully appreciate the nature and extent of the danger of being burned by steam or water because of the defective cooling system.

14. Unanswered by instruction.

15. The installation of the air conditioner in question on the vehicle did not constitute a substantial change in the design of the vehicle. 'Substantial change' was defined as such change in the vehicle in question that the manufacturer would not have reasonably foreseen and anticipated.

16. The damage issue.

The appellant, Ford Motor Company, has brought forward forty-five points of error. The only cross-point of error, brought forward by appellee, Russell & Smith, was to the effect that the verdict does not constitute a verdict against Russell & Smith sufficient to support any judgment against it without likewise forming the basis for Russell & Smith's judgment against Ford for indemnity.

Steve J. LaRocca testified that he purchased the Econoline van in question from Russell & Smith Ford Company (hereinafter designated Russell), in July of 1965. That year's model was available with a new and larger engine, called a 240 cubic inch displacement engine, which was first installed in the 1965 model Econoline van, but which was marketed sometime in the fall of 1964. He purchased the larger engine because it was represented by Russell that the 240 engine was supposed to remedy overheating problems usual with this type of vehicle, and because the vehicle was able to handle an air conditioner. He would not have purchased the vehicle without air conditioning, and Russell agreed to and did install one. This was not LaRocca's first acquaintance with the Econoline van manufactured by Ford. He had owned two earlier versions and used them in his laundry delivery service. On both he had had a Climatic air conditioning unit installed, and on both he had experienced overheating problems which were explained to Russell. During the year before he was injured, from July, 1965, until August 23, 1966, the date of his injuries, LaRocca had much trouble with overheating, particularly with the air conditioner on, but also with the air conditioner off in slow traffic and warm weather. The overheating, however, was worse with the air conditioner turned on and in use. About three or four months after he purchased the van the top radiator hose failed. From August to December of 1965 he took the vehicle back to Russell at least five or six times and complained that it was overheating. His answer was that 'It don't overheat any more than most of them do.' On July 21, 1966, about one month before the upper radiator hose burst injuring LaRocca, he took the vehicle to Russell for a thorough going over because he intended to take a trip Labor Day weekend. The cooling system was among his list of things to be checked or repaired. The mechanic at Russell who did the work testified that he checked the radiator hoses and the cooling system and that everything was all right. The hoses felt and looked to be in good condition.

On August 23, 1966, LaRocca left his home in the truck at his usual time, around a quarter of seven, to begin his laundry route. He picked up the laundry of several customers and took it to Milton's Cleaners about 9:00 o'clock and then went out again and made about a dozen other stops. He returned to Milton's Cleaners about 11:00 or 11:30. LaRocca was waiting for some laundry to be finished so he could deliver it that afternoon. Therefore, he did some paper work at Milton's Cleaners until about 1:30 p.m. Since this laundry was still not ready, he left to go to the bank. He was headed toward Fannin Bank on O.S.T. when the incident made the basis of this suit occurred. Traffic was medium, and it was a hot day. He recalled that he stopped for a traffic light at the intersection of Almeda and O.S.T. behind a line of...