Michlien Tire Co. v. Pendland

• Decision Date: 26 January 1967
• Docket Number: No. 6843,6843
• Citation: 416 S.W.2d 586
• Parties: MICHLIEN TIRE COMPANY et al., Appellants, v. Eugene PENDLAND, Appellee. . Beaumont
• Court: Texas Court of Appeals

Page 586

416 S.W.2d 586

MICHLIEN TIRE COMPANY et al., Appellants, v. Eugene PENDLAND, Appellee.

No. 6843.

Court of Civil Appeals of Texas.

Beaumont.

Jan. 26, 1967.

On Rehearing March 16, 1967.

Rehearings Denied April 12, 1967.

Blades, Crain, Slator, Winters & Ross, Houston, A. D. Henderson, Palestine, for appellants.

Martin Dies, Jr., Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellee.

ON MOTION FOR REHEARING

HIGHTOWER, Chief Justice.

The former opinion of this court is withdrawn and the following substituted in lieu thereof.

This is a venue case. A full statement of facts accompanies the record. The parties will be referred to as they were in the trial court or by name.

Plaintiff alleged: That he was injured while mounting a tire and tube when the tube exploded; he was employed by Land O'Pines Dairy Products Company which purchased the tire and tube from defendant Owens Tires, Inc.; that defendant Michlien Tire Company manufactured the tire and tube and that the tube was defective; that plaintiff was a resident of Angelina County and that his injury was sustained in such county; that defendant, Michlien Tire Company, was a New York corporation; that defendant, Owens Tires, Inc., was a Texas corporation, doing business in Palestine, Anderson County, Texas. In his controverting affidavits plaintiff relied upon Sections 9a, 27 and 29a, Article 1995, Vernon's Ann.Civ.St., to hold venue in Angelina County as to defendant Michlien Tire Company and Sections 9a, 23 and 29a, Article 1995, Vernon's Ann.Civ.St., as to defendant, Owens Tires, Inc.

The first question is whether or not Owens Tires, Inc. waived its plea of privilege by filing certain instruments of pleadings in reply to plaintiff's pleadings. Such pleadings were not made subject to the court's action on the pleas, and were not filed prior to the final rendition, in open court, of the formal order overruling the pleas of privilege.

Concluding evidence was heard on the pleas September 3, 1965. The only relevant pleadings then before the court being Plaintiff's first amended original petition and said pleas of privilege and controverting affidavits. On November 29, 1965, the trial judge wrote this letter to the attorneys of record:

'Gentlemen:

'Defendants' Pleas of Privilege are overruled. Counsel for the plaintiff is requested to prepare the proper order, submit same to counsel for the defendants for approval as to form and forward same to the Court to be entered among the papers of this cause.

Yours very truly,

Jack Pierce'

December 3, 1965 plaintiff filed his second amended original petition and on the same date (December 3, 1965) Owens Tires, Inc. filed application for leave to file third party complaint against Jack Skaggs, d/b/a Skaggs Rubber Company and Michlien Tire Company. Also, on said date of December 3, 1965 Owens Tires, Inc. filed its amended answer and cross-claim against Jack Skaggs, d/b/a Skaggs Rubber Company and Michlien Tire Company, which answer included special exceptions to plaintiff's second amended original petition.

On December 6, 1965 the trial judge called the case for trial on its merits. Plaintiff announced 'ready' on the merits and Owens Tires, Inc. announced 'not ready' because of its motion for leave to add third party defendant. On said date of December 6, 1965 the court extended leave to Owens Tires, Inc. to file its third party action and citation was issued thereunder on said date and trial on the merits was deferred. December 15, 1965 the pleas of privilege of each of the original defendants was overruled by order signed and entered, thus confirming the action taken by Judge Pierce in his letter of November 29th, supra.

Plaintiff stresses in his brief that the action of Owens Tires, Inc. in regard to its aforesaid pleadings was done prior to the action of the trial court on December 15th on its plea of privilege and that such plea was thereby waived.

We stress that the pleadings of Owens Tires, Inc., including its cross-claim against Jack Skaggs and Michlien Tire Company, above referred to, were filed After all parties had received Judge Pierce's letter. We therefore conclude that such pleadings are not to be considered by us for any purpose other than determining plaintiff's contention of waiver aforesaid. Galloway v. Nichols, Tex.Civ.App., 269 S.W.2d 850.

It is our opinion that the letter of the trial judge constituted action on the plea of privilege insofar as waiver is concerned. It is clear and undisputed by the whole of the record before us that the trial judge and all parties concerned accepted the judge's letter as a pronouncement determinative of the plea of privilege of Owens Tires, Inc. by calling for announcements for trial on the merits December 6, 1965. Owens Tires, Inc. waited until the very last reasonable moment before taking any action to protect itself on the merits against the plaintiff or the third party defendant and we do not believe that under such circumstances it should be held to have waived its plea of privilege. Any holding to the contrary would result in undue hardship and injustice, jeopardizing the rights of and defendant in circumstances where he would not have a reasonable opportunity to file appropriate pleadings for his protection. Moreover, such a holding would assuredly constitute a travesty on our judicial system generally and particularly upon the integrity of the honorable trial judge. The case of Canales v. Salinas, Tex.Civ.App., 288 S.W.2d 207, cited by plaintiff on this point, only involved the right of a trial judge to withdraw announcement of his action on a plea of privilege contained in a letter prior to the formal rendition thereof and is, therefore, not in point.

We further hold that plaintiff's evidence failed to sustain the material allegations of his pleadings against the defendants. Plaintiff's own evidence (Exhibit 1), adduced on the hearing, consists of an invoice, No. 22293, and a bill. Each of these clearly shows that Land O'Pines Dairy Products Company did not obtain the tire and tube in question from Owens Tires, Inc. These instruments clearly show that the customer was Land O'Pines Dairy Products Company of Lufkin and that the company selling the tire and tube and doing the billing was Owens & Carter Tire Company of Palestine, Texas. There are no allegations or proof that the defendant, Owens Tires, Inc., and Owens & Carter Tire Company were one and the same, or at anytime had any connection with each other. In fact, there is no intimation to such effect in the record. Plaintiff himself testified that the tire and tube was purchased from Owens & Carter Tire Company. He also testified that he had no idea where Owens & Carter Tire Company obtained the same. There is no evidence in the record that defendant, Owens Tires Inc., ever had anything to do with these tires, or that Michlien Tire Company manufactured, sold or dealt in tires or tubes or had any connection with the tire and tube in question. True, the plaintiff and witness, Jenkins, testified that the tube bore the word 'Michlien', but there is no evidence that Michlien Tire Company had any connection with said tire or had ever seen or handled it and said tube. It cannot be held that such evidence, standing alone as it were, established that the trade mark, or trade name of Michline Tire Company was on the tube in question. Nowhere in the record is there any evidence that Michlien Tire Company had a trade name or a trade mark. There is no evidence to connect Michlien Tire Company with Owens Tires, Inc., Owens & Carter Tire Company, or the tire and tube in question. International Harvester Co. v. Faris, Tex.Civ.App. 360 S.W.2d 864; Strickland Transportation Co. v. Atkins, Tex.Civ.App., 223 S.W.2d 675; Swift & Co. v. Mackey, Tex.Civ.App., 216 S.W.2d 242; Amarillo Coca Cola Bottling Co. v. Price, Tex.Civ.App., 378 S.W.2d 409.

Accordingly, the judgment of the trial court is reversed and judgment is here rendered that plaintiff's cause of action against the defendants, Owens Tires, Inc. and Michlien Tire Company, be transferred to the counties of their respective residence.

DISSENTING OPINION

STEPHENSON, Justice.

I respectfully dissent. I would hold that plaintiff proved a cause of action against both defendants on the basis of implied warranty because of public policy as expressed by the Supreme Court of Texas in Jacob E. Decker & Sons, Inc. v. Capps, (Tex.) 164 S.W.2d 828. I am aware that this is an extension of the rule of the Decker Case to a non-food case. The law I would apply to this case is set forth in The American Law Institute, Restatement of the Law (Second) Torts (1965) as follows:

' § 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a produce, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule...