Wenzel v. Rollins Motor Co.

• Decision Date: 05 March 1980
• Docket Number: No. 6814,6814
• Parties: Charles M. WENZEL et al., Appellants, v. ROLLINS MOTOR COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 895

598 S.W.2d 895

Charles M. WENZEL et al., Appellants, v. ROLLINS MOTOR COMPANY et al., Appellees.

No. 6814.

Court of Civil Appeals of Texas, El Paso.

March 5, 1980.

Rehearings Denied April 16 and May 14, 1980.

Malcolm McGregor, Philip T. Cole, El Paso, for appellants.

Scott, Hulse, Marshall & Feuille, Frank Feuille, IV, Dudley & Dudley, Paul W. Dudley, William C. Dudley, El Paso, for appellees.

OPINION

OSBORN, Justice.

This personal injury case, arising out of a one vehicle accident, was submitted to a jury on issues involving the strict liability of an automobile manufacturer and a tire manufacturer, and negligence and breach of warranty of an automobile dealer. Basically, all liability and defensive issues were decided in favor of the Appellees. A take nothing judgment was entered, although the jury did find damages in a total amount of $110,443.80 for all claims resulting from the injuries to three occupants of the vehicle and the death of a fourth occupant. We affirm.

FACTS

Charles M. Wenzel purchased a 1973 International Scout from Rollins Motor Company in October, 1973. Because of vibration problems, the vehicle was returned to the dealer several months later who, according to Mr. Wenzel, recommended installation of a hydraulic steering stabilizer, but Mr. Wenzel was advised at that time that the vehicle was safe to drive without the stabilizer and it was never installed. He left on vacation the following day, pulling an 18-foot Santa Fe Travel Trailer. On the return trip, while passing another vehicle on a mountain road near Santa Fe, New Mexico, he said the vehicle started vibrating violently, the front end went completely out of control, the trailer jackknifed and the vehicle rolled over. Everyone in the vehicle was injured, and approximately two months later Charles' father died from injuries received in the accident.

In answer to special issues submitted to them, the jury: (1) failed to find that the failure of International Harvester to provide a horizontal steering stabilizer on the front wheels of the vehicle rendered said vehicle defective; (3) failed to find that the roof of the vehicle was defective; (9) failed to find that the right front tire of the vehicle began to develop a bubble prior to the occurrence; (12) failed to find that the car dealer, Rollins Motor Company, failed to repair the steering system on the vehicle; (17) failed to find that the vehicle was unsafe after having found that it was represented as being safe for a trip; (19) found Charles M. Wenzel was negligent in operating his vehicle without performing maintenance on his tires, in driving at an excessive rate of speed, in failing to apply his brakes and in passing another vehicle and that each of such acts was a proximate cause of the occurrence; (20) found that as between Wenzel and Rollins, the negligence of Wenzel was 100% of the cause of the occurrence; (21) found that Wenzel's conduct constituted misuse of the vehicle in failing to perform maintenance of the tires on the vehicle and the trailer, in driving at an excessive speed, and in the operation of the vehicle so as to cause it to jackknife with the trailer and overturn and each of such acts of misuse was a proximate cause of the occurrence, and (22) found as between misuse and product defects, misuse was a 100% cause of the occurrence. The jury did not find any of the parties in the vehicle knew and appreciated a danger in riding in the vehicle at the time of the occurrence in question.

The Appellants present five points of error, one related to an instruction to the jury on the issue of "crash worthiness" of the vehicle, one related to the submission of the issue on misuse of the vehicle and three related to the introduction of evidence. We shall consider the case as it relates to each Appellee.

ROLLINS MOTOR COMPANY

The case against Rollins, the car dealer who sold the Scout and did some repairs thereon, was based upon a negligence and breach of warranty theory. The jury was asked if Rollins failed to repair the steering system of the vehicle and they answered "no." The jury found Rollins represented to Mr. Wenzel that the Scout as repaired was safe for a motor trip, that he relied on such representation, and in answer to the next issue asking if the vehicle was unsafe, the jury answered "no." The words "safe" and "unsafe" were not defined in the charge. The jury also found Mr. Wenzel guilty of four acts of negligence which were a proximate cause of the occurrence in question.

The "no" answers to special issues 12 and 17 are simply findings that the Appellants failed to carry the burden of proof on those issues. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966). There is no point of error attacking those findings, nor is there any attack on the findings of contributory negligence. If these findings by the jury in favor of Rollins are not set aside, the judgment for the car dealer was correct. Therefore, we affirm the judgment against Rollins.

GENERAL TIRE AND RUBBER COMPANY

On the one issue submitted with regard to the tire manufacturer, the jury was asked if the right front tire on the Scout began to develop a bubble prior to the occurrence in question and they answered "no." The jury did not answer conditionally submitted issues inquiring if said tire was defective and if this was a producing cause of the occurrence. There is no attack on the "no" answer of the jury and Appellants having failed to carry their burden of proof in the trial Court, and having made no attack on appeal upon the jury's answer, may not recover against the tire manufacturer. The judgment is also affirmed as to General Tire and Rubber Company.

INTERNATIONAL HARVESTER COMPANY

With regard to whether the failure to provide a horizontal steering stabilizer on the front wheels of the vehicle rendered it defective, the Court instructed the jury that a product is defective if the product exposes its user to an unreasonable risk of harm when used for the purposes for which it was intended. "Unreasonable risk of harm" was said to mean that the "product must be dangerous to an extent beyond that which would be contemplated by the ordinary user with the ordinary knowledge common to the community as to its characteristics." ¹

The jury in answer to special issue No. 1 failed to find that the failure of International Harvester to provide a horizontal steering stabilizer on the front wheels of the vehicle rendered said vehicle defective. There is no attack on the answer to that issue and therefore there can be no recovery on that theory of the case. That was the only theory of recovery presented by Charles M. Wenzel and wife, Marcella Wenzel, against the manufacturer of the vehicle and therefore the judgment in favor of International Harvester must be affirmed as to these two parties.

As to Elsie Wenzel and her deceased husband, Charles Ray Wenzel, it was contended that the roof of the vehicle was defectively designed and that this resulted in their sustaining injuries which they otherwise would not have sustained. With regard to the issue of "crash worthiness" and the special issue inquiring if the roof was defective, the charge instructs the jury as follows:

(a) That the utility of the vehicle in question to the Plaintiffs and to the public as a whole must be weighed against the gravity and likelihood of injury from its use;

(b) That you must consider the availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive;

(c) That you must consider the ability of International Harvester Company to eliminate the unsafe character of the vehicle without seriously impairing its usefulness or significantly increasing its costs;

(d) That you must consider the Plaintiffs' anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.

Also in this connection you are further instructed that an automobile manufacturer is under no duty to design an accident-proof vehicle but is under a duty to use reasonable care in the design of its vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of a collision.

The first four paragraphs are taken almost verbatim from the opinion of the Court in General Motors Corporation v. Turner, 567 S.W.2d 812 (Tex.Civ.App. Beaumont 1978), which was decided less than two months before this case was tried. Obviously, the trial Court was following the most recent decision by a Texas appellate court when the charge was prepared in this case. Subsequent to our verdict, the Texas Supreme Court reversed the intermediate appellate court. Turner v. General Motors Corporation, 584 S.W.2d 844 (Tex.1979). The Court, in its opinion On Motions For Rehearing, concluded that "the evidence necessary to address the appropriate elements of balancing criteria should be overtly advanced by both parties in a strict liability action; but that does not necessarily lead to the conclusion that the jury should be specifically instructed concerning these considerations." With the issue approved for use in a design defect case, the Court directed that the jury be instructed only as to the elements of utility and risk. The Court did not have to pass on the issue of whether the giving of an instruction with the four balancing factors was reversible error since the trial court's charge did not include such an instruction. Nevertheless, I conclude that an instruction as to any factors except utility and risk has been condemned and should not be used. I also conclude that the giving of such an instruction was reasonably calculated to and probably did result in harm to the Appellants. But, the other members of the Court are of the opinion that the instruction did not constitute reversible error, particularly in view of the holding in ...