Clarostat Mfg., Inc. v. Alcor Aviation, Inc.

• Decision Date: 08 December 1976
• Docket Number: No. 15558,15558
• Citation: 544 S.W.2d 788
• Parties: CLAROSTAT MFG., INC., Appellant, v. ALCOR AVIATION, INC., Appellee.
• Court: Texas Court of Appeals

Page 788

544 S.W.2d 788

CLAROSTAT MFG., INC., Appellant, v. ALCOR AVIATION, INC., Appellee.

No. 15558.

Court of Civil Appeals of Texas San Antonio.

Dec. 8, 1976.

Rehearing Denied Jan. 5, 1977.

Davis & O'Connor, Robert B. O'Connor, Charles M. Jefferson, San Antonio, for appellant.

Robert L. Strickland, John T. Dailey, San Antonio, for appellee.

CADENA, Justice.

This is a suit for breach of express and implied warranty. Defendant, Clarostat Manufacturing Company, Inc., appeals from a judgment, following a jury trial, awarding plaintiff, Alcor Aviation, Inc., $85,861.00 in damages. Plaintiff complains of the action of the trial court in disregarding that portion of the jury's findings awarding plaintiff an additional $55,666.00 for lost profits and damage to plaintiff's good will and reputation.

Plaintiff, a manufacturer of aviation instruments, is engaged in the manufacture and sale to owners of aircraft of a device, known as an Exhaust Gas Temperature Gauge. It is not necessary for us to attempt to explain the function of this device. A component part of this metering instrument is a device known as a potentiometer, which is manufactured by defendant.

Prior to 1967, defendant manufactured and sold to plaintiff for use in the metering instrument a potentiometer known as an 'MH' potentiometer, which performed efficiently. Defendant developed a new model, identified as a 'Series 39' potentiometer. A representative of defendant represented directly to plaintiff that this new model would function properly if used in the instruments manufactured by plaintiff. It is undisputed that the Series 39 potentiometer did not function effectively and that it was necessary for plaintiff to replace the defective potentiometers in more than 500 of the Exhaust Gas Temperature Gauges.

The case was submitted to the jury on 18 special issues. The first 10 of these issues, all of which were answered favorably to plaintiff, relate to breach of warranty by defendant. Issues 11--17, which present affirmative defenses urged by defendant, were also answered favorably to plaintiff. Issue 18 related to damages.

We consider first defendant's complaint that the trial court erred in denying Part III of its motion to produce documents.

The relevant part of the motion to produce sought to compel plaintiff to make available to defendant documents and other information relating to plaintiff's overhead expenses. This information was clearly relevant, since plaintiff's claim for damages was based on a formula which can be expressed as 'damages = x xy,' where 'x' represents plaintiff's direct labor costs and 'y' represents the ratio of overhead expenses to direct labor costs.

Plaintiff's suit was filed August 26, 1970. The motion in question was filed on May 13, 1975, six days before the trial began, and was denied May 16, 1975. The motion sought the production of (1) the raw material, records, and data which plaintiff's accountants used in computing the overhead figures 'furnished to the Defendant'; and (2) all interoffice correspondence, memos, evaluations, and any other documents written in 1976 and subsequent years concerning overhead.

It appears that the overhead figures 'furnished to the Defendant' by plaintiff were made available to defendant some five months prior to the filing of the motion for production of documents and other items. These figures covered the years 1968--73, inclusive.

The argument in defendant's brief relating to this asserted error consists of recitals to the effect that the motion was filed, resisted by plaintiff, and denied by the trial court, followed by the statement that the only evidence produced by plaintiff relating to overhead consisted of a one-page summary giving the total amount of overhead expense for the six years in question.

In determining whether to grant or refuse a motion for production of documents, the trial court is vested with 'a wide discretion and his action will not be reversed unless an abuse of such discretion is shown.' Cutler v. Gulf States Utilities Co., 361 S.W.2d 221, 224 (Tex.Civ.App.--Beaumont 1962, writ ref'd n.r.e.). The order denying defendant's motion recites that the motion was denied after the trial court heard evidence relating to the motion. Defendant calls our attention to no evidence which would indicate that the trial court acted arbitrarily or otherwise abused its discretion in denying the motion. Under the circumstances, particularly the unexplained delay in seeking production of the documents, we cannot say that the trial court abused its discretion in denying the motion .

Defendant contends that the trial court erred in submitting the damage issue because such issue, in the form submitted, permitted the jury, in determining the amount of damages, to include damages allegedly suffered by plaintiff as the result of defects in potentiometers purchased from a party, Simpson Electric Company, other than defendant. The argument is that as to the potentiometers purchased by plaintiff from Simpson, the requisite privity of contract between plaintiff and defendant is lacking and that, therefore, as to those potentiometers, plaintiff cannot claim a breach of warranty by defendant.

All of the defective potentiometers, whether purchased by plaintiff from Simpson or directly from defendant, were manufactured by defendant. Simpson manufactured, as plaintiff's subcontractor, at least part of the exhaust gas temperature measuring devices, using potentiometers which Simpson purchased directly from defendant . The evidence shows that defendant was aware of the arrangement between plaintiff and Simpson. The evidence also shows that representations concerning the quality of the potentiometers were made directly to plaintiff by defendant. Under these circumstances, the existence of a contractual relationship between plaintiff and defendant with reference to the devices purchased by plaintiff from Simpson is not essential to recovery by plaintiff for breach of express warranties made directly to plaintiff by defendant. United States Pipe & Foundry Co. v. City of Waco,130 Tex. 126, 108 S.W.2d 432, Cert. den., 302 U.S. 749, 58 S.Ct. 266, 82 L.Ed. 579 (1937).

In any event, this defect in the manner of submitting the damage issue was not called to the attention of the court by defendant by objection to the charge, and the error, if any, was waived.

The contention that the court erred in submitting the damage issue to the jury 'because there was insufficient evidence for the jury to decide that the Plaintiff was entitled to any amount for its overhead expenses' is without merit. The factual insufficiency of the evidence to support an affirmative answer to an opponent's issue furnishes no basis for refusal to submit the issue. Strauss v. LaMark, 366 S.W.2d 555 (Tex.1963); Imperial Insurance Co. v. Ellington, 498 S.W.2d 368 (Tex.Civ.App.--San Antonio 1973, no writ). it should be noted that defendant's sole complaint here and in its motion for new trial relates to the submission of the issue.

Defendant asserts that the trial court erred in submitting Part I of issue 18, the damage issue, because 'there was no evidence of probative force to sustain a monetary judgment in the Plaintiff's favor.'

Part I of issue 18 is as follows:

What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate (plaintiff) for its damages, if any, which you find from a preponderance of the evidence resulted from the occurrence in question?

You may consider the following elements of damage, if any, and none other:

I.

(a) Potentiometers replaced in meters returned by customers for warranty repair.

(b) Potentiometers removed from meters returned from dealers and OEM.

(c) Potentiometers removed from new meters in various stages of construction and replaced with CTS potentiometers.

(d) CTS potentiometers purchased to replace faulty Clarostat potentiometers.

Answer in dollars and cents, if any.

We, the Jury, answer: $85,861.00.

Part II of issue 18 inquired concerning damages due to lost profits and loss of good will. The jury's answer to Part II ($55,666.00) was disregarded by the trial court.

As already pointed out, of the 18 issues submitted, 7 can be classified as 'defendant's issues' in the sense that they related to affirmative defenses on which defendant relied. Defendant did not object to the submission of any of these 7 issues. To the remaining 11 issues, which can be categorized as 'Plaintiff's issues,' defendant directed 38 objections. Three identical, general stock objections were directed to the submission of each of these 11 issues. These stock objections can be summarized as follows: (1) There is no evidence to support submission of the issue. (2) There is insufficient evidence to support an answer favorable to plaintiff . (3) An answer favorable to plaintiff would, as to each of these 11 issues, be contrary to the overwhelming weight and preponderance of the evidence.

Each of the three stock objections is obviously without merit insofar as each of the 10 liability fixing issues is concerned. In this Court defendant has not even made a token effort to insist that, in the face of the three stock objections, it was error to submit any one of these 10 issues. Of the 33 stock objections directed at the charge, 30 are obviously frivolous. Of the remaining three stock objections, two are without merit on the face of each objection, since the factual insufficiency of the evidence to support an affirmative answer to an opponent's issue, or that an affirmative answer to such issue would be contrary to the overwhelming weight and preponderance of the evidence, is not a valid objection.

It must be concluded that under these circumstances the 'no evidence' objection to issue 18 was effectively obscured by being included within a bundle of 32 frivolous objections. Monsanto Co. v . Milam, 494 S.W.2d 534, 536 (Tex.1973); ...