Moffett v. Goodyear Tire & Rubber Co., 13565
| Decision Date | 25 May 1983 |
| Docket Number | No. 13565,13565 |
| Citation | 652 S.W.2d 609 |
| Parties | M.L. MOFFETT, et al., Appellants, v. GOODYEAR TIRE & RUBBER CO., Appellee. |
| Court | Texas Court of Appeals |
Terrence Kendall, Kendall, Randle, Finch & Osborn, Austin, for appellants.
Jack Maroney, Brown, Maroney, Rose, Baker & Barber, Doug Lackey, Brown, Maroney, Rose, Baker & Barber, Austin, for appellee.
Before SHANNON, EARL W. SMITH and BRADY, JJ.
This is a products-liability action brought by appellants, M.L. Moffett, and his wife, Janice Moffett, individually, and as next friend of Mrs. Moffett's children, Kathy Lynn and Sherry Hambrick, against the Goodyear Tire & Rubber Company for damages sustained when a pick-up truck in which appellants were travelling overturned allegedly from the failure of the right rear tire.
Appellants urge five points of error. The first three concern the trial court's refusal to submit to the jury three requested special issues. The fourth point of error is that the jury's answer to special issue eleven, which inquired whether at the time the tire was manufactured, Goodyear so dominated and controlled Compagnie Francaise Goodyear, its French subsidiary, that it was not a separate and distinct entity, was so against the great weight and preponderance of the evidence as to be manifestly wrong. The fifth point asserts that the trial court erred in denying appellants' motion for new trial based on preventing a multiplicity of trials. In this connection, appellant states that although this cause had been pending for over two years, it was not until approximately a week before trial that appellee for the first time raised the defense that the tire was not designed, manufactured, imported or sold by Goodyear, but rather by its French subsidiary, over which it had no control or legal responsibility. Because of the undue delay it would have caused by seeking a continuance, appellants proceeded with the instant suit and filed a separate suit against French Goodyear so as to toll the statute of limitations.
The tire was manufactured by Compagnie Francaise Goodyear, a French corporation, which is a wholly-owned subsidiary of appellee, Goodyear Tire & Rubber Company. The tire was purchased from Sears Roebuck Company, although Sears Roebuck Company was not made a party to the instant suit. For the sake of brevity, appellee, Goodyear Tire & Rubber Company, will be referred to simply as "Goodyear" and its wholly-owned French subsidiary will be referred to as "French Goodyear."
Appellants alleged that the tire was defective at the time that it left the control of French Goodyear and that such defect was a producing cause of the injuries and damages sustained. Alternatively, appellants alleged that, if the tire was not defective, it nevertheless had been negligently serviced by Goodyear employees at its service store in Austin, Texas and that such negligence was the proximate cause of the plaintiffs' injuries and damages.
Goodyear answered that it had not designed, manufactured, imported or sold the tire and that it was not responsible for a tire manufactured by French Goodyear as well as alleging that the tire did not fail because of any defect or error in its installation but rather failed from appellants misuse or abuse.
The evidence showed (1) that French Goodyear was a wholly-owned subsidiary with five of its eight directors being either officers or directors at Goodyear or other Goodyear corporations; 1 (2) that both Goodyear and French Goodyear engaged in the business of the manufacture and sale of tires bearing the Goodyear trademark, and in the regular course of business, Goodyear imports and sells French Goodyear tires; and (3) that the trademark "Goodyear" appears on the particular tire in question with the words "Made in France." As stated above, the tire was not purchased by appellant from Goodyear or French Goodyear but from Sears Roebuck Company two years before its actual installation and use by appellants.
After purchase, appellants put the tires in storage. Nearly two years later, prior to leaving on a family vacation, appellants took the tires to a Goodyear Store for mounting and balancing. In June of 1977, three weeks after the tires had been placed in service, the right rear tire blew out causing the truck to turn over and producing the injuries and damages which are the basis for this suit. At the trial, appellants introduced expert testimony that the tire was non-uniform in construction and that this caused it to fail. The appellees countered with their own experts who testified that the reason for the failure was under-inflation coupled with overloading.
At the conclusion of the evidence, appellants submitted four requested special issues regarding Goodyear's liability for tires manufactured by French Goodyear, three of which were refused by the trial court. Upon the answers by the jury to the special issues, the trial court entered a take-nothing judgment against appellants.
Appellants' first three points on appeal concern the refusal of the trial court to submit three requested special issues to the jury which inquired: (1) whether the manufacture of the tire in question by French Goodyear without any statement on it that it was not, in fact, made by Goodyear caused a concealment of a material fact; (2) whether appellant relied on the Goodyear trademark when purchasing the tires in question; and (3) whether French Goodyear is simply a conduit through which Goodyear carries on its business of manufacturing and selling tires under the Goodyear trademark. Before this Court can consider these points, we must first determine whether we are precluded from considering them when it appears from the transcript and statement of facts that appellant has failed to comply with the Texas Rules of Civil Procedure in preserving their exceptions to the trial court's refusal to submit these special issues. Tex.R.Civ.P.Ann. 273 provides:
[e]ither party may present to the judge and request such written instructions, special issues, definitions of explanatory instructions, as he desires to be given to the jury; and the judge may give them or a part thereof, or he may refuse to give them, as he may see proper. Such requests shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination. A request by either party for any instructions, special issues, definitions or explanatory instructions shall be made separate and apart from such party's objections to the court's charge. (emphasis supplied)
Appellants "objections" to the charge, which were dictated to the court reporter, were based on the...
To continue reading
Request your trial
-
Dallas Market Center Development Co. v. Liedeker
...Logan & Co. v. Burgess Mktg., Inc., 744 S.W.2d 170, 181 (Tex.App.--Waco 1987, writ denied); Moffett v. Goodyear Tire & Rubber Co., 652 S.W.2d 609, 612 (Tex.App.--Austin 1983, writ ref'd n.r.e.); Newman v. Delhi Gas Pipeline Co., 517 S.W.2d 635, 636 (Tex.Civ.App.--Tyler 1974, no writ); Waggo......
-
El Puerto De Liverpool v. Servi Mundo Etc.
...subsidiary favor one over the other. Olson, 21 S.W.3d at 720-21; Conner, 944 S.W.2d at 419; Moffett v. Goodyear Tire & Rubber Co., 652 S.W.2d 609, 613 (Tex. App.-Austin 1983, writ ref'd n.r.e.). Not all of these factors need be present or considered. Olson, 21 S.W.3d at The record shows tha......
-
3-D Elec. Co., Inc. v. Barnett Const. Co.
...whether there are any other facts which also indicate that the subsidiary is a mere conduit. Moffett v. Goodyear Tire & Rubber Co., 652 S.W.2d 609, 613 (Tex.App.--Austin 1983, writ ref'd n.r.e.); see also Gentry, 528 S.W.2d at Generally, a foreign parent corporation is not subject to the ju......
-
Texas Health Enterprises, Inc. v. Krell
...Governing Bd. v. Pannill, 659 S.W.2d 670, 681 (Tex.App.--Beaumont 1983, writ ref'd n.r.e.); Moffett v. Goodyear Tire & Rubber Co., 652 S.W.2d 609, 612 (Tex.App.--Austin 1983, writ ref'd n.r.e.). Texas Health's first and second points of error are Next, Texas Health contends in its third thr......