Ford Motor Co. v. Tidwell

• Decision Date: 22 February 1978
• Docket Number: No. 6658,6658
• Citation: Ford Motor Co. v. Tidwell, 563 S.W.2d 831 (Tex. Ct. App. 1978)
• Parties: FORD MOTOR COMPANY, Appellant, v. K. E. TIDWELL, Appellee.
• Court: Texas Civil Court of Appeals

Page 831

563 S.W.2d 831

FORD MOTOR COMPANY, Appellant, v.K. E. TIDWELL, Appellee.

No. 6658.

Court of Civil Appeals of Texas, El Paso.

Feb. 22, 1978 Appellee's Motion for Rehearing Denied and Appellant's Rehearing Denied March 22, 1978 Appellee's 2nd Motion for Rehearing Denied April 12, 1978.

Stubbeman, McRae, Sealy, Laughlin & Browder, Rodney W. Satterwhite, David K. Brooks, Midland, for appellant.

Dan D. Sullivan, Andrews, Shafer, Gilliland, Davis, Bunton & McCollum, Inc., Stephen L. Brannan, Odessa, for appellee.

OPINION

WARD, Justice.

This case is presented on appeal as one involving the breach of an implied warranty in the sale of a new Ford automobile.Trial was to a jury, which determined that the car was not fit for the ordinary purposes for which automobiles are used, and which then fixed the amount of damages and attorney's fees incurred.Based upon the verdict, the trial Court entered judgment for the Plaintiff against the car manufacturer, Ford, for triple damages and attorney's fees as provided by Section 17.50, Tex.Bus. & Comm.Code.A take nothing judgment was entered in favor of the car dealer, which had also been joined as Party-Defendant.The manufacturer, Ford, appeals and we reverse and remand.

K. E. Tidwell sued Carl Sewell Motor Company, as the dealer, and Ford Motor Company, as the manufacturer of a 1973 station wagon, which he purchased on September 17, 1973, alleging a breach of the express written warranty given by Ford to the Plaintiff on the purchase of the automobile, a breach of the express verbal warranty given by Sewell that it would fully service and repair any defects in the automobile, and a breach of the implied warranties of fitness and merchantability "that said automobile would be adequate and sufficient for the purposes for which it was manufactured."Ford answered, alleging that the only warranties involved were express warranties which it denied it had breached.Upon trial, the two Defendants' testimony was to the effect that they jointly furnished a written warranty to the Plaintiff which provided that for a period of twelve months or 12,000 miles, whichever occurred first, the selling dealer would repair or replace free of charge any part found to be defective.This written warranty provided that it was in place of all other warranties, express or implied, including any implied warranty of merchantability or fitness.Somewhat surprising in the face of his own pleadings, but not so in the face of this testimony, the Plaintiff then denied that he had ever had a written warranty, and relied, instead, only upon the implied warranty of merchantability, Tex.Bus. & Comm.Code Sec. 2.314, claiming the damages for a breach of such an implied warranty under Secs. 17.50(a)(2)and17.50(b)(1), Tex.Bus. & Comm.Code.As indicated previously, the jury accepted the Plaintiff's version and first found that the warranty booklet for the automobile was not delivered to the Plaintiff at the time of the purchase, and then found in favor of the Plaintiff's theory of breach of implied warranty of merchantability.

Ford Motor's first point on appeal is to the effect that there was no basis of liability against it, as there was no privity of contract between it and the Plaintiff.The point was written before the decision was made in Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77(Tex.1977).The point is overruled as that case decided that a manufacturer can be responsible, without regard to privity, for the economic loss which results from its breach of the Uniform Commercial Code's implied warranty of merchantability.

Ford Motor's second point is to the effect that the trial Court erred in its submission of Special Issue No. B regarding the Plaintiff's theory of breach of implied warranty of merchantability, and that the issue did not inquire as to the unfitness of the automobile at any particular time.No proof was offered that the implied warranty was of any continuing nature or for any fixed period of time.Under such circumstances, any such implied warranty relates to the time of sale and does not cover future defects not in existence at such time or inherent in the article sold.Kriedler v. Pontiac Division of General Motors Corporation, 514 S.W.2d 174(Tex.Civ.App. Texarkana1974, writ ref'd n. r. e.).While that proposition of law as to implied warranty is settled, Ford's complaint is that Plaintiff's Special Issue No. B failed to set the specific time of sale as the subject of the inquiry.However, we do not find that Ford Motor ever called the defect to the trial Court's attention.Tex.R.Civ.P. 272, 274.Ford Motor Company did object to Special Issue No. B on the ground that it was "an incomplete submission of a theory of recovery on the basis of any breach of implied warranty of fitness for an ordinary purpose."Such an objection was too general, as it nowhere appraised the trial Court that Ford Motor was complaining that the inquiry as to unfitness of the automobile be limited to September 17, 1973, the date of the sale.The trial Court committed no error in overruling that objection.Tex.R.Civ.P. 274;3 McDonald, Texas Civil Practice, Secs. 12.29.1, 12.29.3.

Appellant next points to paragraph 9 of its Objections to Court's Charge as a basis for preservation of its claimed error.This objection is to the effect that:

"The Defendants object to the Charge of the Court as a whole for the reason that said Charge does not submit an issue or inquire into whether or not the Ford Stationwagon was reasonably free of material defects and workmanship on the day it was sold to Plaintiff."

As we interpret this objection, it is in no way related to the issue submitted on the breach of the implied warranty of fitness, but is an objection relating to the charge which did submit a series of issues on the Appellant Ford's defensive theory that it had given an express written warranty in connection with the sale.In that regard, Special IssueNo. 1 inquired from a preponderance of the evidence if the 1973 Ford was "not free of defects in material and workmanship upon the date it was sold to Plaintiff."This issue, as written, fully complied with Ford's ObjectionNo. 9, and Appellant Ford cannot now be heard to state that ObjectionNo. 9 was meant to complain of Special Issue No. B, which submitted the wholly separate theory of implied warranty of merchantability.Though that issue on implied warranty did not inquire as to the unfitness of the automobile at any particular time, that complaint was waived and the second point is overruled.Tex.R.Civ.P. 274.

After the purchase of the car on September 17, 1973, the Plaintiff experienced trouble with the horn, which malfunctioned and blew when he was not in the car; he had trouble with the weather stripping around the windows; the cruise control would go off when other electrical equipment was activated; and a defect was noted in the rear electric window lift.The Plaintiff also noted that something was wrong with the front end as it made a noise and a click when the car was turned to the left.The Plaintiff returned the car to the dealer for repairs of these defects on November 6, 1973, after the car had been driven some 1,194 miles, and, according to the Plaintiff, the horn and the weather stripping were fixed, though he continued to notice window noises when he drove at highway speeds.The cruise control was fixed, but the control for the rear electric window was never repaired.As to the front end, the dealer's testimony was that at that time the steering gear was removed, all internal parts of the steering mechanism were cleaned, and it was reassembled and installed with new seals.The Plaintiff testified that the clicking noise in the front end was repaired, but that he had to return the car to the dealer again on December 7th after the car had been driven some 2,289 miles.The main complaint at that time was that he was observing a problem with right turns, that is, after making a right turn, it was hard to recover or to straighten out again.Thereafter, on the next three or four occasions that he brought the car in for repairs, his serious...