Ford Motor Co. v. Puskar, 14317

• Decision Date: 08 July 1965
• Docket Number: No. 14317,14317
• Parties: FORD MOTOR COMPANY et al., Appellants, v. Daniel J. PUSKAR, Appellaee.
• Court: Texas Court of Appeals

Page 1

394 S.W.2d 1

FORD MOTOR COMPANY et al., Appellants, v. Daniel J. PUSKAR, Appellaee.

No. 14317.

Court of Civil Appeals of Texas, Houston.

July 8, 1965.

Rehearing Denied Sept. 16, 1965.

Appellee's Second Rehearing Denied Oct. 7, 1965.

Finis E. Cowan, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellant Ford Motor Co., Inc.

Fulbright, Crooker, Freeman, Bates & Jaworski, Gibson Gayle, Houston, for appellant Jack Roach Bissonnet, Inc.

W. James Kronzer, Bill Allen, Ralph K. Miller, Houston, Miller & Gann, Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel, for appellee.

BELL, Chief Justice.

Appellee recovered a joint and several judgment for damages in the amount of $60,815.33 by reason of personal injuries allegedly resulting to him from the negligence of Ford Motor Company and Jack Roach Bissonnet, Inc. Ford Motor Company will be hereafter referred to as Ford, and Jack Roach Bissonnet, Inc., as Roach.

Ford was the manufacturer of the 1959 Ford Thunderbird automobile that was bought on May 2, 1959 from the dealer Roach by appellee. In the early morning hours of May 31, 1959 appellee was involved in a one car accident at the intersection of Alief Road and Roark Road in Harris County. The automobile was equipped with power steering and power brakes. It was the general theory of appellee that the automobile when delivered to him by Roach was defective so that when he made full application on the brakes the engine would die and thus the power brakes and steering would not operate with power assist. As against Ford the theory of recovery was that Ford was negligent in falsely representing that if the engine was not running there would still be safe steering and control through conventional brakes and steering. At the time in question appellee was proceeding north on Roark Road, which is a gravelled road. Upon reaching a point from 125 to 200 feet from Alief Road he saw a stop sign controlling entry into Alief Road and made heavy application of the brakes, but there was no response. He, finding the brakes were not effective to effectively slow the automobile, then, when he got to the intersection, turned the steering wheel as hard as he could to the right but it would move only a very few inches and this was ineffective to turn the automobile. The result was that the automobile went on across Alief Road, which was about 33 feet wide, across a ditch and into an embankment. Severe personal injuries resulted to appellee.

At the time of the purchase Roach delivered its dealer's warranty, which reads as follows:

'Dealer warrants to Purchaser (except as hereinafter provided) each part of each Ford Motor Company produce sold by Dealer to Purchaser to 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. Dealer makes no warranty whatsoever with respect to tires or tubes. Dealer's obligation under this warranty is limited to replacement, without charge to Purchaser, of such parts as shall be returned to Dealer and as shall be acknowledged by Dealer to be defective. This warranty shall not apply to any Ford Motor Company produce that has been subject ot misuse, negligence, or accident, or in which parts not made or supplied by Ford Motor Company shall have been used if, in the determination of Dealer, such use shall have affected its performances, stability or reliability, or which shall have been altered or repaired outside of Dealer's place of business in a manner which, in the determination of Dealer, shall have affected its performance, stability, or reliability. This warranty is expressly in lieu of all other warranties, express or implied, and of all other obligations on the part of Dealer.'

Also at the time the automobile was delivered to appellee there was delivered to him by Roach a manual issued by Ford describing the various features of the automobile. The parts here material are the representations made in the manual with regard to the power steering and braking systems. They 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.'

The jury found the following issues favorably to appellee as against Roach only:

Issue. 1. In purchasing the automobile appellee relied on the warranty that the automobile was free from defects in material and workmanship when normal use was made of the vehicle.

Issue 2. That from the time of delivery up to the time of the accident it was not free from such defects.

Issue 3. That the failure to be free from defects was a proximate cause of the accident.

Issue 20. After delivery the engine would die on full application of the brakes.

Issue 21. Appellee requested Roach to make such repairs or adjustments as were necessary to prevent the engine's dying.

Issue 22. Roach refused to make such repairs.

Issue 23. Such refusal was negligence.

Issue 24. Such negligence was a proximate cause of the accident.

The jury found the following issues favorably to appellee as against both Roach and Ford:

Issue 4. They represented that when the engine was stopped appellee would have safe steering and full control of the car with conventional steering.

Issue 5. At the time of the accident appellee relied on such representation.

Issue 6. The representation was untrue as applied to the operation of the steering system at the speed at which the car was moving just before the accident.

Issue 7. It was negligence to make the representation.

Issue 8. Such negligence was a proximate cause of the accident.

The jury also found in response to Special Issues 25 and 26 that appellee was acting in an emergency and that he, in such emergency, acted as an ordinarily prudent person would have acted in the exercise of ordinary care.

The jury found unfavorably to the appellee as to negligent representation as to brakes by finding the above quoted representation was not untrue-Special Issue 11. It also found unfavorably to appellee on the issue as to failure to warn by finding that appellants did not know, nor should they have known that if the engine died the braking and steering efficiency would be so impaired that appellee would be unable to safely control the car under the circumstances existing at the time of the accident-Special Issue 16.

Appellee was acquitted of all acts of contributory negligence, the jury finding no failure to properly apply brakes, no failure to keep a proper lookout, no excess speed, no negligence in failing to stop at the stop sign, no negligence in failing to take the car to Roach for adjustment and that appellee did not have full knowledge and appreciation of the risk involved in operating the vehicle. The appellee was also acquitted of driving while under the influence of intoxicating liquor and the jury found the accident was not an avoidable one.

Ford, as grounds for reversal, attacks the action of the trial court in submitting Special Issues 4 through 8, on the ground there was no evidence to support their submission, and also that the jury's answers were against the overwhelming weight and preponderance of the evidence. The answers to these issues are the only basis for judgment against Ford and their effect is to find Ford made an untrue representation to appellee that if the car engine stopped or the power system was not properly operating appellee would still have 'safe steering and full control of the car with conventional steering;' that appellee relied on the representation; that to make it was negligence; and, that such negligence was the proximate cause of the accident. Also Ford makes the same attack on the submission of Issues 25 and 26 and the jury's answers thereto. These were all plaintiff's issues.

Ford also attacks, for the same reasons, the submission of Special Issues 27, 31 and 35, they being contributory negligence issues, and the answers of the jury to such issues.

The judgment against Roach rests on the jury's answers to the negligent representation Issues 4 through 8, and also the answers finding a breach of Roach's warranty against defects (Special Issues 1-3) and the jury's findings of negligent failure to repair (Special Issues 20-24). Roach, for reversal, attacks the submission of Special Issues 3, 4-8 and 21-24, on the ground there was no evidence to support their submission and that the jury's answers to these issues were against the overwhelming weight and preponderance of the evidence. Another point attacks the judgment being based on Roach's breach of warranty because his liability for breach is allegedly limited to replacement of defective parts. There is also the point that there was error in the form of Special Issues 1-3 in that there was global submission. Roach also contends the evidence...