Holley v. Central Auto Parts

• Decision Date: 14 June 1961
• Docket Number: No. 10368,10368
• Citation: 347 S.W.2d 341
• Parties: J. J. HOLLEY, Appellant, v. CENTRAL AUTO PARTS et al., Appellees. . Rehearing Denied
• Court: Texas Court of Appeals

Page 341

347 S.W.2d 341

J. J. HOLLEY, Appellant, v. CENTRAL AUTO PARTS et al., Appellees.

No. 10368.

Court of Civil Appeals of Texas, Austin.

Rehearing Denied June 14, 1961.

Ernest L. Sample, Beaumont, for appellant.

King, Sharfstein & Rienstra, Dale Dowell, Beaumont, for appellee.

ARCHER, Chief Justice.

This suit was filed by appellant against appellees for damages alleged to have been sustained by appellant when a heavy truck rim collapsed while he was attempting to mount a tire and the rim on one of his trucks.

Appellant alleged that he purchased a secondhand rim from appellees and was told by a managing partner that the rim was a good one; that the rim had been freshly painted; that there was a flaw in the edge of the rim which should have given warning of the defect if it had not been freshly painted; that the rim was defective which caused the tire to explode while he was mounting it, and alleged negligence by appellees in painting over the defect, offering it for sale and failure to inspect and test the rim.

This case was tried before a jury and at the close of appellant's evidence, the appellees made a Motion for Instructed Verdict, which was granted by the trial court. A take nothing judgment in accordance therewith in favor of appellees was thereafter entered, from which judgment appellant has perfected this appeal.

The appeal is based on four points of error to the effect that the court erred in granting an instructed verdict because there was an implied warranty of fitness of the rim; that there was negligence in offering the rim for sale and representing that it was a good one; and in offering the defective rim for sale in a repainted condition and thus concealing the flaw which would have given warning of the true condition.

The four points are restated and presented together.

Appellee has made ten counterpoints to the general effect that there was no error in granting the motion for an instructed verdict because the undisputed evidence showed as a matter of law that the rim was secondhand, and there existed to implied warranty of fitness of the rim; that there were no pleadings that any express representations made by appellee constituted negligence, proximately causing his injuries, or that any express representation was negligence, and was a proximate cause of appellant's injuries; that there was no evidence that appellees owed a duty to appellant to inspect the rim before selling it; or that failure to inspect the rim was a proximate cause of the injuries; that there was no evidence that any repainting of the rim was negligence and was a proximate cause of the injuries, because the undisputed evidence shows as a matter of law that appellant was as fully cognizant of any peril or hazard connected with the use of the rim as were appellees, and there was no evidence that the rim was in anywise defective at the time it was sold to appellant.

The appellee's position is that appellees are engaged in the business of selling automobile parts, new and used, and some junk and that appellant is engaged in the trucking business and has been for about twelve years and had experience in auto mechanics and was familiar with rims and putting them on and drove one of his trucks.

The testimony is that the rim might pass through the mounting process without collapsing for as many as five or six times as against one time that it would collapse.

Appellant admitted that he went into the place of business of appellees and selected the rim and knew that it was secondhand, or used, and we do not believe that he can assert successfully that an implied warranty exists.

The cases dealing with an implied warranty on secondhand goods are: American Soda Fountain Company v. Palace Drug Store, Tex.Civ.App., 245 S.W. 1032; Norvell-Wilder Supply Co. v. Richardson, Tex.Civ.App., 300 S.W.2d 773, er. ref., N.R.E.; Aeronautical Corporation of America v. Gossett, Tex.Civ.App., 117 S.W.2d 893; 151 A.L.R. 446.

No contention is made by appellant in his pleadings that a statement was made by appellees constituting negligence, or that any such statement was a proximate cause of the accident and his injuries, and appellant could not have recovered under the theory of negligent misrepresentation whether there was any evidence as to this or not. There must be pleadings as well as proof. Rule 301, Texas Rules of Civil Procedure; Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130.

The appellant testified as to only two statement made to him by Carl Savino, the first was that the rim was 'a good one' and the second was in answer to whether the rim would 'take a 900 tire' in connection with the size of the rim.

Any such statement were made after Mr. Holley had already selected the rim and had an opportunity to inspect it, knowing it was secondhand and he knew as much about used parts as did Savino, he had been in the trucking business for twelve years and was familiar with rims and putting them on.

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