author: BELL, Chief Justice.

text:
    FORD MOTOR COMPANY et al., Appellants, v. Daniel J. PUSKAR, Appellee.
    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 ap-pellee was proceeding north on Roark Róad, 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 to 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 ap-pellee 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 appel-lee 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 ap-pellee 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 establishes contributory negligence as a matter of law and that the undisputed evidence shows appel-lee knowingly and voluntarily exposed himself to the risks and dangers incident to the operation of the car.

We must review the evidence.

Appellee testified he negotiated for the purchase of the automobile with Don Ferguson, a salesman for Roach. Appellee finally agreed to purchase the new 1959 Thunderbird automobile equipped with automatic transmission, power steering and power brakes. Delivery of the car was made by Ferguson May 2, 1959. At the time of delivery, the “Dealer’s Warranty”, hereinafter called warranty, was also delivered as was the “Owner’s Manual”, hereinafter called manual. Upon delivery of the automobile appellee read the instructions in the manual. He understood them, believed them and relied on them. The same is true with regard to the warranty. After delivery of the car appellee proceeded to drive it and with perhaps a few exceptions it seemed to operate fairly normally. A few days after he began to drive it the automobile seemed to be “Idling kind of roughly * * * possibly like a small motor boat engine, that type of rough idling that would be in neutral'. It was rocking, so to speak.” He observed no particular noise except it possibly sounded like it was out of tune. On several occasions when backing out of the driveway the motor died. The same thing happened in slow or congested traffic and when appellee would pull up to a stop sign. This also happened on other occasions when applying the brakes. Too, it happened on occasion when the motor was idling while the car was standing in traffic. He was no mechanic and did not know what caused it. When the motor died he noticed it took extra effort to apply the brakes but on the occasion prior to the accident, he was going so slow it didn’t make much difference. He didn’t have any real opportunity to test the steering because on the occasions the motor died he had no reason to turn the steering wheel. He had no occasion to apply the brakes or steer the car in an emergency. After he began this experience he called Mr. Ferguson at Roach’s and told him of this trouble. Ferguson assured him this was normal behavior for a new automobile. Ferguson assured him the car was “letter perfect.” He told appellee not to worry and to bring the car in when it was time to be serviced. The first conversation with Ferguson was about a week or 10 days after appellee purchased the car. On another occasion he also called Ferguson about the trouble because it was “frustrating.” This call was around May 20, 21 or 22. At the time of these calls the car had not been 1000 miles. Ferguson told him to keep a record of the things wrong with the car so he could tell Roach about them when the car was brought in for a checkup. On this last occasion Ferguson referred him to someone in the service department. The person in the service department told him to wait until the 1000 mile checkup. On Saturday, May 30, the behavior of the car being about the same, appellee again called someone in the service department at Roach’s. On this occasion he complained vigorously because nothing had been done by Roach. He was again assured the car was operating normally. He asked to be allowed to bring it in, but Roach’s representative told him they could not service it then or Monday, but to bring it in on Tuesday. He agreed to do so, but stressed that he thought it was a very serious situation. The accident occurred in the early hours of Sunday, May 31.

At the time of the accident appellee was on his way to K.P.R.C. television station to play in an orchestra for a benefit for a blind fund known as “The Eyes of Texas.” He was driving north on Roark Road, which is a shallow gravel 2-lane road. He was driving about 30 or 35 miles an hour. He drove until he saw an intersection. It was the Alief Road intersection. Roark Road dead-ends there. There was a stop sign controlling traffic on Roark Road as you enter Alief Road. He saw the sign when he was from 125 to 200 feet hack from the intersection, probably 150 feet. He stepped on the brake and got no response. He again stepped on the brake and it felt as though he might be pushing on the floor board, but again he got no response and the car kept moving. He then turned the steering wheel but it would turn only slightly. He had not reduced his speed to any extent that he could tell. The tires did not skid. He used all the force he had to try to turn the steering wheel. His efforts had no effect and he went on across Alief Road, the ditch on the north side and against the embankment.

Prior to purchasing the car he drove it in a normal fashion and the brakes and steering operated satisfactorily. After purchasing the ear the engine died on him from four to six times. When he approached the intersection where the accident occurred he subconsciously had retained what he had read in the manual. At the particular moment he was not thinking -of the book. He never took the car by Roach’s for repair. The car operated satisfactorily on Saturday after he called Roach, until the time of the accident. He had no trouble with either the brakes or steering the balance of that day. The lights on the car were normal. He was not quite certain but he thought the lights were on high beam at the time of the accident. He saw the stop sign about the time it came within the beam of the lights. He applied his brakes and got slight response. On second application it felt like a frozen surface such as if the brake pedal went to the floor. The brake pedal, however, did not go to the floor. The pedal on first application went down about an inch and a half or two inches, possibly less. Appellee weighed 155 pounds and he pressed on the brake as hard as he could. He was holding onto the steering wheel while pressing on the brake. He did not skid. Appellee had made one previous statement in which he stated he thought when he applied his brake the car “skidded the sixty feet in sort of left side and forward motion” and in a deposition he stated it skidded but he did not know how far. He explained he meant the car “slid”. He didn’t know how far. At the intersection he exerted the maximum pressure on the steering wheel of which he was capable in an effort to turn right. He imagined it was at least 50 pounds from each hand. The wheel turned only slightly, probably 2 or 3 inches, and then would not move. Ap-pellee denied he told anyone he had had several drinks of an alcoholic beverage. He denied he had been drinking. Appellee testified he did not have someone else inspect the car because the warranty stated it would be voided, in the discretion of the dealer, if others made repairs or alterations. He knew if the motor stopped he would not have power assist but he relied on the statement in the manual and thought he would still have control over the car and would have proper braking power.

In his testimony in court appellee at no place testified the engine died just before the accident. In a statement he had made previous to trial, which was introduced, he stated he did not know whether the engine died or not but he felt at the time it did. The jury found it did die.

A friend of appellee, Mr. Eisenmann, once drove the car. As he went around the corner the motor stalled and he could feel the weight of the car as he steered it. He had trouble steering it but he had control of the car. He was driving about 10 miles per hour.

Mr. Mock, who worked for Roach, testified Roach serviced the car before delivery. They did not, however, install the power brakes or steering. The brakes and steering would have been installed by Ford. In pre-delivery service done by Roach no accessories were put on. If a customer complains about a motor idling roughly or dying, he considers that as affecting the driving or operation of an automobile equipped with power steering and brakes. If a customer complains about that condition, he would tell him to bring the car in. That is a warning whether the car is equipped with power steering or brakes or not. It is dangerous for anyone to have a car dying in traffic. In the predelivery service the brakes and steering are road-checked. Also checked are engine timing, automatic choke settings, automatic fast idle preset, and the idle speed. Any necessary adjustments are made. Other things not here necessary to notice are checked. The predelivery check list on this particular car was not available. The road check consists of brake application, engine dying on medium and fast brake applications, front end pull on brake application and driving over rough roads, to listen for rattles. Because a new car is stiff it is nothing unusual for the motor to die on an inexperienced driver during the first 1000 miles. If rough idling is all that appears to be wrong with a car, it could be caused by incorrect mixture of air and gas in the carburetor and this would require an adjustment to the idle speed screw. It could be caused by leakage in high tension spark plug wires, and many other things. Any service station could make the carburetor adjustment. On a new car the idle screw is set so the car will idle faster and keep the motor from dying.

Mr. Ferguson, who sold the car, testified that when he delivered the car he told ap-pellee to keep a list of the things he found wrong so he could turn it over to the service department when he had the 1000 mile inspection. He remembers appellee called him once or twice about the performance of the car. In making the sale he told ap-pellee the car was guaranteed to be letter perfect, that there would be a few bugs in it as in any new car but they would be corrected. Appellee, when the car was delivered, drove it around the block a couple of times and it drove all right. Mr. Ferguson did not recall what appellee said to him on the occasions appellee called him about the operation of the car.

The accident was investigated by Mr. Graham of the Texas Highway Patrol. Most of the damage to the car was on the left front end. The car had hit the embankment almost head-on and then the back end swung around. The left two-thirds of the front of the car was damaged. The jolt of the accident was more to the left front. He could not tell whether there were any skid marks or not. The weather was clear and the road was dry. The ditch was wet. His notes made no mention of appellee having any odor of alcohol. Both roads were of flaky shell surface. The car jumped a pretty deep ditch. He could tell the car swung around by the plowed up curve made by the back tire.

The automobile was taken from the scene by Knapp Chevrolet. The evidence shows the automobile was traced from Knapp through several purchasers. It was sold by the finance company to a salvage company. The only repairs shown to have been done were done by a man named Whitis, one of the purchasers. He said no repairs were made to the power steering or power braking system. He didn’t recall that any adjustment was made in the idle control but any car that has been in a wreck usually requires repair to the linkage system. He thoroughly road tested the car and the power brakes and power steering worked normally. The car was sold to several other persons and each purchaser testified to use of the power brakes and power steering and that they both functioned normally. One appraiser who examined the car, Mr. Barefoot, testified the power steering valve assembly was damaged in the wreck and estimated replacing it with a new one would be $28.50. However, the person repairing made no repairs on the power system.

We feel there is circumstantial evidence of probative force to support the jury finding that just before the accident the engine stopped firing. It is admitted, as stated in the representations contained in the manual, that if the engine is not running the power steering and power brakes will not operate though you will still have brakes and steering. We should here note that there is evidence that though the engine is not firing it will still be turning over so as to operate the power system if the car is moviiig at a speed of as much as 35 miles per hour. There is also evidence that this is also true if the car is traveling at 30 miles per hour though there is evidence that while it is true of some cars at this speed it is not true of all cars. While appellants urge that the evidence shows appellee was traveling at least 35 miles per hour and the power system would still be operating, we feel from the evidence a jury could infer the car was traveling at a lesser speed so that the engine was not turning over. We are of the view that there was no evidence of probative force that there was any defect in the power braking or power steering systems in themselves that would cause the power not to operate. The only thing, under the evidence, that could be said to cause the power to fail would be the failure of the engine to fire due to improper adjustment of the idle screw, thus allowing an improper mixture of air and fuel. The result of these conclusions is that just before the accident appellee would have been without power brakes and power steering. This then brings us to the very important testimony bearing on the effect of the absence of the power.

Appellee relies upon the testimony of Professor James Melton of the University of Oklahoma. Professor Melton, as well as being a teacher, was a research and consulting engineer. Based on his research and experience, he testified he was familiar with the principles concerning the power brake and power steering systems of a 1959 Thunderbird. We should here note that our conclusion that the jury could have concluded the engine died is based in part on this witness’s opinion, based on appel-lee’s version of how the car acted just before the accident, that the loss of power was due to additional intake of air into the carburetor. He had made a number of tests with a number of different cars, including a Thunderbird. These tests were made in connection with some research in developing “constant torque idle arm assemblies.” Power brakes are just conventional brakes with power assist and will work just as well without the power. (The jury found the representation about conventional brakes was not untrue.) The power steering is a closed hydraulic system. “Closed” means you are Hsing one individual reservoir with a pump through a valving arrangement to a cylinder that supplies power. The power pumps the fluid through the connecting linkage. This affords power that operates to help turn the steering wheel and thus in turn turns the front wheels on the car.

In an automobile equipped with power steering you have additional valving and linkage and a boost cylinder that boosts the pressure to move the linkage. The fluid must be moved back and forth through the linkage. If the power unit is not operating to boost the pressure to move the fluid the manual operation of the wheel must move the fluid through the linkage. In an automobile not equipped with power steering you do not have this additional linkage and no force is thus necessary to move the fluid through linkage. This is the reason it is more difficult to operate a car with power steering when the motor dies than it is a car that has only conventional steering. This is not true of brakes.

As above stated, Professor Melton’s experiments with cars with the motor not running were with a 1959 Thunderbird and a number of other cars also. When asked on direct examination as to the additional pressure required, the witness answered:

“I do not recall the exact values. These tests were in connection with some research in developing constant torque idle arm assemblies, and I do know that the normal force necessary on a conventional car is about 12 pounds at the wheel, about seven pounds with power steering, and with the power assist steering assisting, and that it will run up, depending on the automobile itself, as much as 18 to 36 pounds and even beyond that when power steering is inoperative.”

We take it this means the additional force needed varies depending on the make of the car because of his testimony just preceding this statement to the effect that he tested a 1959 Thunderbird and various other automobiles.

On cross-examination the witness Melton stated in -making the tests he ran them “on a series of different General Motors products and also on Ford Motor Company products.” Included in the cars tested were a 1957, a 1959 and a 1960 Thunderbird. He had no records of the tests with him so that he could not give his readings on the various tests. The tests were made at different speeds. The forces of 12, 7, 18 to 36 pounds stated above were, in some cases, while the vehicle was stopped. In some cases the tests were run between 30 and 40 miles per hour. In other words, as we interpret the testimony, these various pounds of force were necessary when some vehicles tested were stopped and some of them were required on some vehicles while they were moving. We are nowhere informed as to which figures applied to Ford products and which were applied to General Motors products. He did not testify as to which of these figures applied to a 1959 Thunderbird. When specifically asked if those figures were obtained at different speeds, the witness answered, “These are average figures.” He then stated they were the averages “of a series of tests.” He also said the figures were different depending on the speed. The witness explained that these figures were essentially the force necessary on various cars while standing still and thus overcoming friction. He stated this:

“That this figure seven, for instance, being one or two vehicles we had, was the force that was necessary to turn it on a conventional unit that had other steering assemblies involved and it was overcoming the friction on the rubber itself, on the pavement. That is the reason I told you these were average values and that they were statistical values arranged over quite a number of vehicles.”

As to a 1959 Thunderbird, he stated it was going to depend on the miles on it, the steering linkage and quite a number of things. The effect of the tires, the speed, the gyroscopic effect, are to be considered. There is an extremely large number of things that can affect the steering. The witness testified it was harder to steer a 1959 Thunderbird equipped with power steering because of the force necessary to move the fluid back and forth through the linkage. In an effort to get the witness to testify as to how much force would be necessary to turn the steering wheel on a 1959 Thunderbird with power steering when the engine was not running, when the elements of friction, etc., were not involved, counsel asked if the witness had ever put one up on a grease rack and turned the wheel. He answered he had but did not have a record of what force was required. He did this as a part of a series of tests. He did not remember the force required. Whatever the numbers were went into the statistical analysis. He had no idea as to the force required. He then said he didn’t think it would normally be more than 8 or 10 pounds. It would take more than that if the car wheels were on a surface because of the weight of the car being on the ball joints, the rod ends and a number of linkage elements. When asked how much extra pressure it would take on a 1959 Thunderbird where the car was driving on the road, he stated, “I would guess 20 to 30 extra pounds, but I don’t know.” Possibly it could be considerably less. The witness was then asked if he ever made any tests to find out specifically how much it would be and he answered, “On different automobiles; yes, sir.” He was then asked if he tested a 1959 Thunderbird and he answered, “I don’t remember the extent of all of these tests.”

Mr. Chwaiek, an experimental engineer in the power steering department of the Bendix Company, testified for the defendants. Bendix developed the power steer-ing system used in the 1959 Thunderbird. This witness testified that in a 1959 Thunderbird the gear ratio is the same whether you have one equipped with power steering or one without. In this car one pound of pressure exerted on the steering wheel produces 30 pounds on the Pitman arm. In some makes of automobiles, however, the gear ratio is different where equipped with power steering, and when the automobile is not so equipped. When the steering wheel is turned you move the Pitman arm. In developing the power steering study was made of what might be encountered if the engine stopped firing. Tests were conducted. Tests were made of 1959 Thunder-birds at various speeds, both automobiles with power steering equipment and those not so equipped. Tests were made of those so equipped while the motor was not running as well as when the motor was running. Based on these tests, if a 1959 Thunderbird with power steering was proceeding at 30 to 35 miles per hour with the engine running, from 3 to 6 pounds of pressure would be required to turn the steering wheel. If the engine stopped firing and there was a shift to neutral gear so the motor was not turning over, 4 to 8 pounds would be required to turn the wheel if the car were proceeding at 30 to 35 miles per hour. The driver still has control of the car. If the car is left in drive position at 30 to 35 miles per hour, the engine will still be turning over and the power system will work. As speeds increase it will take slightly less force to turn the wheel. If the speed is reduced to about 20 miles per hour it will take 6 to 10 pounds of force to turn the wheel if the power steering is working. If the power system is, for some reason, not working it would take the same force at the same speed under the same conditions. The reason greater pressure is required when the speed is reduced and the power assist is not available is that rolling friction is becoming closer to static friction. At 10 miles per hour with power steering working it would require 3 to 6 pounds. If power steering becomes inoperative, at 10 miles per hour it would take from 8 to 15 pounds. At 5 miles per hour with power steering working, 3 to 6 pounds of force is required. If it is not working, 12 to 18 pounds would be required. The variance shown when a turn such as 12 to 18 pounds is used is because the force needed depends in part on the radius of the turn. A sharp turn requires more force. If the vehicle is stationary and the power system works, 6 to 10 pounds will be required. If the engine is turned off, a maximum of 50 pounds would be required. This last amount of pressure required is because of static friction. The same is required of cars not having power equipment.

In a car equipped with power steering but the power is not working, the driver will have to supply the power to displace the fluid in the hoses and pipes. If there were some obstruction such as a blister in them, it would interfere with the free circulation of the fluid. If a 1959 Thunderbird was not equipped with power steering and was proceeding at 30 to 35 miles per hour, it would require from 4 to 8 pounds of force at the wheel to turn. At 20 miles per hour it would require 6 to 10 pounds. At 5 miles per hour it would require 12 to 20 pounds. If the vehicle was stationary, it would require about 50 pounds. According to the tests he has conducted, there is no perceptible increase in the force needed to turn the wheel where the automobile is equipped with power steering which is not working and an automobile that is not equipped with power steering. If the vehicle is moving it takes no more force to turn the wheel on a 1959 Thunderbird equipped with power steering that is not operating than an automobile that is not equipped with power steering.

Professor Martin of Texas Tech. College made tests on a 1959 Thunderbird. He first turned off the ignition while the automobile was moving and left the gear in drive position. He then turned the ignition off and shifted to neutral. These tests were made when the car was traveling at various speeds between 20 and 50 miles per hour. At speeds over 20 miles per hour when the gears were in drive position the power system still worked because the motor still turned over. Below 20 miles per hour the motor would stop turning. In each instance when the motor was not turning so there was no power, the steering and braking operated essentially the same as when -the power was in operation. It operated the same as a car having only conventional equipment. To determine the force necessary to move the fluid through the linkage he put the car on a grease rack so that its wheels were off the floor. He turned the steering wheel the full distance right and left when the motor was operating and when it was not. In each instance he was able to make full turn of the wheel with the little finger. There was no more force needed to move the fluid with the engine off. The greater force needed to turn the wheel when the car is on the ground is not because of any measurable force needed to move the fluid in the linkage, but is due to drag caused by the wheels being stationary on the ground. He placed the car on the grease rack to determine this force necessary to move the fluid because if the car were stationary on the ground the drag thus caused would overshadow the force necessary to move the fluid. The force necessary to move the fluid would, however, be the same. The witness stated that the sensation of Puskar in having a hard brake meant he had made full application of the brakes. The sensation of turning the steering wheel and getting no response meant there was full application of the brake and there was sliding of the wheels like on ice or wet pavement and no force on the wheels which would tend to change direction of the car. He also testified on a basis of the physical facts, apart from damage to the car, that it was going at least 45 miles per hour.

In answer to Special Issue No. 4 the jury found Ford represented that if the engine of the automobile stopped or if the power system was not operating properly the plaintiff would have safe steering and full control of the car with conventional steering. Then, after finding reliance by appellee on the representation, the jury in answer to Special Issue 6 found the representation was untrue as applied to the steering system at the speed at which ap-pellee’s car was moving just before the accident. Then it answered, in response to Special Issue No. 7, that making the representation was negligence.

We have reached the conclusion there was no evidence of probative force supporting the answer or the submission of Special Issues Nos. 6 and 7.

We recognize that Ford, as the manufacturer of the automobile, is under a duty, if it assumes to speak, to speak truthfully concerning the operational attributes of its product. If it speaks untruthfully and such representation would not have been made by an ordinarily prudent person in the exercise of ordinary care under the same or similar circumstances, then a person relying on the representation is entitled to recover such damages as proximately result from such negligent representation. This was the theory on which the case was tried. It was not tried, as to Ford, on the theory of breach of warranty. We have no doubt that in Texas the rule is that there need be no privity between the purchaser and the manufacturer under these circumstances to recover on the theory of negligent representation. We discuss this briefly only because while at one point Ford seems to concede there need be no privity in a negligent representation case; at another point it urges absence of privity. An automobile is an instrumentality that can, because of its operational characteristics, become dangerous to the operator and others who occupy the highways. There are characteristics such as we have here with regard to the power steering system, that are a potential for danger if its operational attributes are not known. The operator without experience is very likely to have difficulty and face danger in learning by trial and error of such operational characteristics. This fact was recognized by Ford when it made available to its dealers, to pass on to purchasers of Ford products, its manual which contained the representations involved here. It was in a position to know the facts that the operator could not know except through trial and error operation which process of learning involves undue risk to all who purchase the product and those within the foreseeable zone of operation. It is for this reason that the manufacturer has a duty to those within the foreseeable zone of danger to speak truthfully and non-negligently if it assumes to speak. That is the reason there need be no privity of contract between the manufacturer and the purchaser of its product; the suit is not for breach of contract.

While we have found no Texas cases dealing with the necessity of privity in these exact circumstances, we think the principles we have stated are established in similar situations such as liability of the manufacturer where his product is negligently manufactured and in the food for sale cases. We need not discuss them but merely cite Putnam v. Erie City Manufacturing Company, 338 F.2d 911 (5th Cir.). This cited case thoroughly discusses the Texas cases. There are cases from other jurisdictions that support liability of the manufacturer to the ultimate purchaser though there be no privity between them. Probably the leading case is that of Baxter v. Ford Motor Co., 168 Wash. 456, 12 P.2d 409, 88 A.L.R. 521; 179 Wash. 123, 35 P.2d 1090. Much has been written on this case discussing whether it was decided on breach of warranty or in deceit. See the following law review articles: 38 Michigan Law Review 964; 37 Michigan Law Review 1; 22 Washington Law Review 406; 18 Cornell Law Quarterly 445; and 42 Marquette Law Review 521. There can be no doubt, however, that the manufacturer has a duty such as we have above stated.

Here appellee bases his support of the jury’s answers on the contention that the representation was that without the power steering operating the operator still would have safe steering and full control of the car with conventional steering. Conventional steering, he asserts, means the same steering as an automobile not equipped with a power steering system would have. He then urges it takes more exertion to turn the steering wheel where the automobile is equipped with a power steering system where the power system is riot operating, than it does to steer an automobile not so equipped because if the power system does not operate additional manual force is needed to force the fluid through the linkage.

First, we must look at the whole of the language used by Ford to determine what its representation really was. The very first sentence of the representation about power steering states: “Up to 75% of the effort needed to steer your Thunderbird is taken over by Master-Guide Power Steering. * * * ” Then in the next paragraph this is stated: “Master-Guide Steering provides power assist only when your Thunderbird’s engine is running.” Then follows the statement that if the power system is not operating the operator will have “safe steering and full control” of the car “with conventional steering.” When all of the language is considered the representation is that if the power system is not working you will still have safe steering and control of the car because you will still have steering but it will require 75% more effort to operate than when the power system is working. The representation thus defines what is meant by conventional steering. And the opinion of all the experts is that with such you should be able to control the car.

The evidence, which we have above detailed, wholly fails to show falsity of the representation. Appellee’s expert, who was his only witness on this issue, nowhere gives evidence of probative force to show that at the speed at which the car was moving just before the accident the statement was false. He does not give testimony-showing a 1959 Ford Thunderbird requires greater force to steer when the power is lost than is required in such a car not equipped with power steering. What testimony he gave was based on general experiments he had made with such a car and other makes, including General Motors cars. He could give no values as to a 1959 Thunderbird. His expressions were of averages based on all cars used and he admitted there were vast differences in different makes of automobiles. Too, the averages of force stated by him were based essentially on tests made while the cars were stationary. The only point in his testimony approaching evidence that the representation was false was where he testified, “I would guess 20 to 30 extra pounds, but I don’t know.” This is not an estimate based on recollection because he had stated he did not have the values he developed from his experiments and not only did he state he “guessed”, but he immediately followed it by the statement he did not know. This is not of probative value.

The witnesses for Ford clearly testified to facts showing the truth of the representation. The result is that no witness testified to facts from which the inference could reasonably be drawn that the representation was false.

It follows that there is no liability by Ford, nor is there liability on this theory on the part of Roach.

We must, however, determine the liability on the part of Roach on the theory of warranty and negligent refusal to repair.

We are of the view that there was evidence of probative force, and it was sufficient to show that the automobile engine would die on full application of the brakes; that appellee requested Roach to make the necessary repair and adjustment to prevent it; that Roach refused; that such was negligence and such was a proximate cause of the accident.

A reference to the testimony above will show that a few days after the purchase ap-pellee began noticing the engine would die on full application of the brakes. He was supported in this by one of his friends. He testified to calling Roach about this and was told to wait until the 1,000 mile checkup before bringing the car in. While no one at Roach’s recalled any such report, one of Roach’s witnesses testified if they had been called and this behavior had been described to them they would have recognized it was something to be concerned about and they would have told appellee to bring the car in without waiting. Roach recognized that if the condition existed it was obligated to make the necessary adjustment or repair. While the evidence does show that on Saturday, the day of the accident, Roach told appellee to bring the car in on Monday, when the testimony about the previous calls and Roach’s telling him to wait until the 1,000 mile check-up is considered, we feel it is tantamount to a refusal to make the repairs when they should have been made. If they had been made the accident probably would not have happened.

Roach says it is not liable under its warranty because it limited its liability to a replacement of defective parts and a repair or adjustment of defective workmanship. Appellee’s position is that apart from the express warranty there is an implied warranty of the fitness of the product for the use for which it was sold. Too, he urges that any such limitation asserted is against public policy.

As we construe appellee’s pleading and Issues 1, 2 and 3, appellee did not rely upon any implied warranty in the trial court, but upon the express warranty. As a part of this warranty is the above-quoted limitation.

There seem to be no Texas cases directly in point. Appellee urges that American Coach Co. v. Hopkins, 355 S.W. 2d 83 (Tex.Civ.App.), ref., n. r. e.; Brandtjen & Kluge v. Tarter, 236 S.W.2d 550 (Tex.Civ.App.), ref., n. r. e.; and McCown v. Jennings, 209 S.W.2d 408 (Tex.Civ.App.), n. w. h., are controlling and that they do not give effect to any such limitation of this warranty. We think there was more than one warranty involved in those cases and the limiting language there discussed was not applicable to the warranty sued on. Here we think the limiting language was clearly applicable to the warranty of Roach that was sued on by appel-lee. We know of no public policy in this state that would prevent the parties from contracting so as to limit their liability as was done in this case. The contract of the parties must be given effect to. United States for Use and Benefit of Armco Drainage & Metal Products v. Vander Heyden, 158 Fed.Supp. 930 (U.S.D.Ct.S.D.Ill.); Shafer v. Reo Motors, Inc., 205 F.2d 685 (3rd Cir.); Runco v. Brockway Motor Co., Inc., 164 Pa.Super. 240, 63 A.2d 397.

The jury acquitted appellee of all acts of contributory negligence. The jury also found appellee was acting in an emergency and in such emergency acted as a prudent person. We find evidence of probative force to support the submission of all of these issues and we cannot say the jury’s answers to any of them are so contrary to the overwelming weight and preponderance of the evidence as to be clearly wrong.

We do not feel the doctrine of volenti non fit injuria was applicable under the facts here present. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (S.Ct.).

In holding there is no evidence to show falsity of the representation of Ford and Roach, we do not reach the question as to whether the jury’s answers in relation to this matter are contrary to the overwhelming weight and preponderance of the evidence.

All complaints have been considered by us and those not specifically discussed are overruled.

The judgment of the trial court as to Ford Motor Company is reversed and rendered. The judgment of the trial court as to Jack Roach Bissonnet, Inc., is affirmed.

On Motions for Rehearing

In our original opinion we upheld judgment against Roach because of negligent refusal to repair. We rejected liability on the part of Roach based on its dealer’s warranty that the automobile was warranted as being free from defects in workmanship and materials. The basis of our decision in this respect was that this warranty relied on by appellee expressly limited Roach’s liability to replacement, without charge, of the defective parts or material. There was no pleading by which this limiting provision was attacked as being illegal because contrary to public policy. Appellee merely sued on the express warranty and he, therefore, in the absence of attack by pleading, took the warranty as it was written. On appeal, for the first time, so far as the record shows, he asserts the limiting language is contrary to public policy and therefore ineffective. We stated we knew of no such public policy in Texas. We feel such statement was really unnecessary to our decision because no issue of public policy was made in the trial court. We, therefore express no view as to this should it be properly raised in the trial court and on appeal.

The motions for rehearing filed by appellant Roach and appellee Puskar are overruled.


source: Caselaw Access Project

license: Public Domain

text:
    Newton B. SCHWARTZ, Appellant, v. Suzanne JACOB et vir, Appellees.
    No. 14588.
    Court of Civil Appeals of Texas. Houston.
    June 10, 1965.
    Rehearing Denied Sept. 9, 1965.

      Schwartz & Lapin, Newton B. Schwartz, Houston, for appellant.
    Fred Parks, Ruby Sondock, Houston, for appellees.
   BELL, Chief Justice.

Appellant, the father of two children, brought suit to obtain a reduction in child support payments from $525.00 per month for both children to $300.00 per month. By the time the case was reached for trial pleadings had been filed by appellee, the mother of the children and additional pleadings had been filed by appellant, so that the hearing below from appellant’s affirmative standpoint was on appellant’s efforts to obtain custody of the children and, if he were not successful in this, a modification of visitation privileges and a reduction in support payments. Appellee, in the hearing, sought a judgment of contempt against appellant for failure to pay four monthly support payments, an increase in support payments, and a judgment for attorney’s fees that were incurred by her in connection with the proceedings. Trial resulted in a judgment refusing to change custody from ap-pellee to appellant, modifying visitation rights, reducing child support to $100.00 per week for both children, awarding $4,-000.00 attorney’s fee to appellee and refusing to hold appellant in contempt.

While there are several complaints here by appellant, the basic complaints are that the court erred in not changing custody because there was no evidence to support his judgment or, in the alternative, that the judgment was against the overwhelming weight and preponderance of the evidence, and there is no basis for allowing an attorney’s fee.

Appellee complains of the reduction in the amount of child support and of the modification of visitation privileges.

Appellant urges the court had no jurisdiction over custody and modification of visitation privileges because at the time of trial and judgment the mother had married Mr. Jacob and he, she and the children were domiciled in Louisiana. It appears that when all pleadings were filed, and proper service of notice had, Mrs. Jacob, the children and appellant were all domiciled in Houston. Very shortly before trial (18 days) the domicile of Mrs. Jacob and the children changed to Louisiana. Appellant’s domicile has at all times been here. He was reared here. The acts, for the most part, that were relevant on the issue of custody occurred here and the witnesses in possession of relevant facts lived here. All of these facts gave the Texas court jurisdiction and it properly chose to exercise it. Worden v. Worden, 148 Tex. 356, 224 S.W. 2d 187; Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 4 A.L.R.2d 1; Ex Parte Birmingham, 150 Tex. 595, 244 S.W.2d 977.

We really fail to see what comfort appellant could get out of the absence of jurisdiction because if the court had no jurisdiction it could not award him custody or increase his visiting rights.

Appellant at the outset urges reversal because he contends the trial court did not timely file findings of fact and conclusions of law after timely request. As we calculate the period of time, the last day for filing would have been Monday, January 18, 1965. The findings and conclusions were filed January 22, and amended findings were filed January 28. They were filed within time to be included in the transcript filed in this Court and were so included. Even though there be no timely filing, this does not mean there is reversible error. It must appear that injury resulted to appellant. We have a full statement of facts and fail to see where injury resulted to appellant. Bostwick v. Bucklin, 144 Tex. 375, 190 S.W.2d 818; Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117; Becker v. Schneider, Tex.Civ.App., 335 S.W.2d 850, no writ hist.; Tippit v. Tippit, Tex.Civ.App., 360 S.W.2d 177, no writ hist.

We have read the entire statement of facts and are of the view that the trial court’s judgment leaving custody with the mother is supported by evidence of probative force and such evidence is sufficient in quantity and quality. The trial court possesses wide discretion in determining what is best for the children.

Here the evidence does show indiscretions on the part of the mother. It shows that at a time prior to her divorce from appellant and at a time between such divorce and prior to the divorce of appellee Jacob from his wife, the two of them participated in such indiscretions which consisted of courtship and sexual relations. However, the evidence reflects that these indiscretions took place away from the children. There is nothing from which the inference can reasonably be drawn that the children knew or probably knew of this conduct. The other evidence bearing on the issue of the welfare of the children is such as to reasonably lead to the conclusion that appellee has been a good mother to the children and adequately took care of their needs including training, and that their welfare would best be served by leaving them with her. There is nothing to suggest appellant was not a fit and proper parent, but between parents, both of whom are fit and proper persons to have custody, the trial court must under all facts determine which can best serve their welfare.

Appellee complains of the trial court’s action in changing the visitation rights of appellant. The divorce decree of January 11, 1963, provided appellant should have the right to have the children with him on alternate weekends from 9 a. m. on Saturday until Sunday at 7 p. m. Too, he could have the children with him for a period of two weeks between June 1 and August 31. If appellant was unable to exercise his visitation rights on the weekends because of their being out of Harris County, he would be entitled to accumulate these visits so that he would have them with him an additional week during the summer and a week during Christmas holidays. The judgment appealed from is substantially the same as to alternate weekend visits except the children were to be placed by appellee on an airline in New Orleans about 5 o’clock p. m. on Friday and appellant was to place them on the airline at Houston for return to New Orleans about 7 o’clock p. m. Sunday. In addition to the summer visit of one month, appellant was to have the children during the first week of Christmas holidays.

The court found that the move of the mother and children to New Orleans warranted a change in visitation. The matter of the extent of visitation is largely within the discretion of the trial court, keeping in mind the welfare of the children. We fail to find any abuse of discretion. The flight from New Orleans to Houston is now less than one hour. It is ordinarily good for children to grow up having regular association with each parent. The order provides this. We fail to see any likely adverse effect on the children.

Appellee next contends there was error in reducing support payments to $100.00 per week. There was a provision that this would be abated when appellant had the children with him in the one month summer visitation. The old order called for the abatement of $25.00 per week per child for each full week period the children were with appellant. The net result is that instead of annual payments of child support under the old order of $6,300.00, less abatement of $100.00 for the summer visitation of two weeks, the annual payments will amount to $5,200.00 less abatement of $400.00 during the summer visitation. This means net child support payable to appellee of $4800.00 per year.

Appellee’s contention is that the court could not reduce the payments because there were no changed conditions in appellant’s financial condition, except for the better, or in the needs of the children.

Again, the matter of the amount of child support is a matter largely within the discretion of the trial court. A court is given continuing jurisdiction over support by Article 4639a, V.A.T.S. The ability of the father, upon whom the primary obligation to support rests, to pay, and the needs of the children, háving in mind their station in life, are determinative of the amount. Here the evidence shows that in 1962 appellant netted $52,000.00. In 1963 he netted $67,000.00. In 1964 it was estimated he would, from the practice of law, net more than $67,000.00. However, there was evidence that from this appellant had had to make payments of $30,000.00 on some property he had purchased that had not paid its way. While appellant’s first obligation is to his children, we cannot say he should be placed in a straight jacket, so as to prevent his making legitimate investments that are likely to be productive. Too, for the trial court to consider was the fact that appellant must now pay the cost of transportation twice a month and during the vacation periods from New Orleans to Houston and return for both children. We cannot say the trial court abused his discretion.

Appellant contends the trial court erred in allowing attorney’s fees of $4,000.00 to counsel for the mother. Appellee complains because the trial court refused to hear evidence as to a reasonable fee for an appeal, if there was an appeal.

This case arose on petition of appellant to reduce child support. Appellee resisted. Finally, it also involved an attempt by appellant to change custody, and in any event visitation rights. Too, it involved a contempt proceeding against appellant for failure to pay child support for a three month period. Appellee alleged she was required to employ counsel to resist appellant’s efforts and also to represent her and the children in the contempt proceedings.

With regard to the proceedings on the contempt feature of the case, it is noted that the court did not find appellant in contempt though he found that the three months’ payments were not in accord with the support order. The support order provided that the payments should be made to appellee “through the child support section of the Harris County Probation Office.” The evidence shows that except for the three months involved payment by the personal check of appellant was sent to the Probation Office. Just before the first of the three months’ period involved, appellant opened an account in the Liberty Savings & Loan Association in the amount of $5,400.00. He stated in an instrument signed by him that the funds were to secure the support payments. The evidence undisputedly shows the funds were his separate property. He retained for himself, his heirs and executors full control, but stated the funds were to be solely for the purpose of monthly withdrawals in the amount of the support payments. However, the signature of the wife was necessary on any check on the account since the payments were to be made to her for the benefit of the children. For the three months involved appellant sent checks on these accounts to the Probation Office. They could not be cashed by that office because Mrs. Jacob’s signature was necessary. Mrs. Jacob was notified by the Probation Office of the checks but she did not go to that office to sign them. It is her position that these funds were the children’s by reason of the deposit in the account and that appellant could not use their funds to discharge his obligation, and that they were not payment through the Probation Office because they were not cashable by that office. The court, after hearing, required appellant to pay funds represented by these checks. The court found payments had not been made in accord with its judgment.

These funds were not the property of the children. Appellant showed clearly his intention in opening the account that they were put there solely to be used in discharge from time to time of his obligation. He retained title, though the signature of the children’s mother was necessary for withdrawals. For equitable title to vest in the children the intent of the donor to effect such must be shown. The contrary is shown here. Fleck v. Baldwin, 141 Tex. 340, 172 S.W.2d 975. The checks were available if Mrs. Jacob would go to the Probation Office and sign them. This may not seem to be asking much, but in a city the size of Houston it is a considerable requirement. From the record we gather that the practice of the Probation Office is to take a check sent by the father payable to it and credit it to the proper account. It then deposits the check to its account and issues its check to the mother and mails it to her. Appellant was apparently acquainted with this practice as he had previously sent his personal check to the Probation Office and no controversy had arisen. The trial court could well have concluded, or it did, that the payments were not in accord with the court’s order to make unqualified payments through the Probation Office.

Under Rule 308-A the court has authority to allow attorney’s fees against a person in default in paying child support. The authority to do so is not dependent on whether the court actually holds such person in contempt, but whether the person is in default. A part of the fee allowed could be allowed under Rule 308-A.

There is yet another reason for allowing attorney’s fees here. The father initiated the action by filing to reduce payments to $300.00 per month. He then sought a change of custody and modification of visitation privileges. The mother’s action, except as to a plea for increased support for the children and the prayer for attorney’s fees was purely defensive.

We hold that under such circumstances the real parties-defendant, though not the formally named ones, were the children and the furnishing of counsel was the furnishing of necessaries to the minor children. The allowance of the fee is not to the divorced wife for services rendered her, but for services rendered by the attorneys, at the instance of the mother, tO' the children. There are no Texas cases precisely in point. This is the rule in most states though the reasons assigned are various. 15 A.L.R.2d 1270.

In the recent case of Burson v. Montgomery, Tex.Civ.App., 386 S.W.2d 817, this Court had occasion to deal with the question of who were the real parties at interest in a child custody proceeding. We there reviewed various cases and came to the conclusion that the real parties at interest, though they were not formally named as such, were the children. We need say no more in this connection here, except that the same is true where the matter of support for the children is involved.

The theory on which attorney’s fees are allowed a wife in a divorce suit is that they are necessaries. There is no statute or rule allowing them. Roberts v. Roberts, 144 Tex. 603, 192 S.W.2d 774. There is a host of cases to this effect. The husband has a common law obligation to furnish necessaries for the wife and children, so the same principle applies in this case.

In the case of Portwood v. Portwood, Tex.Civ.App., 109 S.W.2d 515, appl. for writ dism., the court held in an annulment suit, where the marriage was not absolutely void, the wife was entitled to attorney’s fees apparently on the theory that they were necessaries. No statute authorizes such, but the husband has a common law obligation to furnish necessaries.

In the case of Morgan v. Drescher, Tex.Civ.App., 219 S.W.2d 488, writ ref., n. r. e., this Court held a divorced wife was entitled to recover from the father the sums she had paid to furnish necessaries for their children between the ages 16 and 21 when the father ceased furnishing such on the sixteenth birthday.

Under the circumstances of this case, we are of the view that attorney’s fees allowed were necessaries furnished the children. Food and clothing are but a small part of the things necessary to properly rear children. Education, cultural development, religious and ethical training are equally as important, if not more so. The obtaining of means to furnish them is necessary. Too, the kind of a home in which the children are reared and the persons with whom they daily associate are most important. Therefore, the matter of their custody is of utmost concern. For there to be a full development of matters bearing on these issues it is necessary to employ counsel to look after the children’s interest. It does not suffice to suggest, as does appellant, that he was looking after their interest. He had a personal partisan interest also. The mother did too. Our adversary system is best suited to a development of the true facts and the adversary system envisions the right of representation by counsel.

We are aware that recovery is to be had by the person furnishing the necessaries. In the posture of the pleading and judgment here we think recovery was had by the attorneys. The pleading for attorney’s fees showed it was for services rendered by the attorneys for the minors’ welfare. The attorneys were not formally named as parties to the suit but they were named as the parties rendering the services. Under such circumstances, the recovery is for the attorneys and they are bound by the judgment. They signed the pleadings. They participated in the trial. The judgment ordered payment of attorneys fee to counsel by appellant. It is evident that the fee was for services in protecting the interest of the minors at the instance of the mother, and recovery was sought for the attorneys. Roberts v. Roberts, 144 Tex. 603, 192 S.W.2d 774.

The refusal of the trial court to hear evidence on a reasonable attorney’s fee in case of an appeal was tantamount to his refusal to allow a fee for the appeal. This was a matter within his discretion.

All points raised have been considered by us and though not specifically discussed, they are found to be without merit and are overruled.

Affirmed.

On Motions for Rehearing

We would only add to our original opinion a clarification. The attorney’s fee allowed was not allowed the former wife because of any right in her as an individual. The attorney’s fee was properly allowed and directed to be paid the attorneys because the services rendered by the attorneys, at the instance of the mother, were necessaries furnished the two minor children. The former wife had no right to an attorney’s fee as an individual.

The motions for rehearing of both appellant and appellee are overruled.


author: BATEMAN, Justice.

text:
    Dr. Jerry E. MILLER, Appellant, v. W. T. COZART, Appellee.
    No. 16573.
    Court of Civil Appeals of Texas. Dallas.
    July 23, 1965.
    Rehearing Denied Oct. 1, 1965.

      Carrington, Johnson & Stephens and Ronald L. Neill, Dallas, for appellant.
    Baker, Jordan, Shaw & Foreman, Dallas, and Robert R. Hendricks, McKinney, for appellee.
   BATEMAN, Justice.

Our former opinion is withdrawn and the following published in its stead.

The appellant Dr. Jerry E. Miller appeals from an order overruling his plea of privilege to be sued in the county of his residence in a suit filed against him in Collin County. The appellees W. T. Cozart and wife sued him for damages resulting from a collision of an automobile occupied by them with a calf owned by him. Appellees assert that venue lay in Collin County under Subdivision 9a of Vernon’s Ann.Civ.St. Art. 1995. The trial court overruled the plea of privilege, but filed no findings of fact or conclusions of law.

Appellant, a resident of Dallas County, owned seven cows and calves which he customarily kept on a small pasture in Collin County under the care of an employee named Ramsey. The pasture was enclosed by a five-strand, barbed wire fence which stood about shoulder-high and which had no gates except one in the southeast corner where the pasture adjoined a yard surrounding a dwelling on the premises. Ramsey lived on the place and said he checked the fences regularly and made repairs when needed. No devices were put on the cattle to keep them from going through or under a fence. Ramsey said he had been in Dallas that day and returned home about 5:00 to 5:30 p. m., at which time all of the cattle were within the pasture.

The collision occurred September 16,1961 at about 7:00 p. m. on a farm-to-market road in Collin County. The Cozarts were in an automobile on their way to Dallas. Cozart, who was driving, saw about five of appellant’s cattle on the side of the road. One of them ran up on the road directly in front of his car and he collided with it. This was approximately a half mile from the pasture. The testimony as to the condition of the fences was conflicting and will be summarized later in this opinion.

The right of a defendant to be sued in the county of his residence is a valuable right, of which he should not be deprived unless the plaintiff carries the burden of alleging and proving that the case clearly comes within one of the exceptions listed in the subdivisions of Art. 1995. A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619. He must do more than merely make out a prima facie case; he must establish by a preponderance of the evidence the “venue facts” necessary to bring the case within the exception. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63.

Subdivision 9a of Art. 1995 provides that a negligence suit may be brought in the county where the negligence occurred. It spells out in detail the venue facts which the plaintiff must establish “by the preponderance of the evidence,” viz.: (1) that the negligence occurred in the county of suit, (2) was the act or omission of the defendant or of his servant, agent or representative acting within the scope of his employment, and (3) was the proximate cause of the plaintiff’s injuries. By his first four points of error on appeal the appellant says there was no evidence or, alternatively, insufficient evidence, to prove negligence on the part of appellant or his servant, Ramsey, and that such negligence, if shown, was a proximate cause of the injuries complained of.

In reviewing an order overruling a plea of privilege, unaccompanied by findings of facts by the trial court, we begin with the premise that the trial court has found every issuable fact in support of the order. “On appeal from an order overruling a plea of privilege every reasonable intendment must be resolved in favor of the trial court’s judgment.” James v. Drye, 159 Tex. 321, 320 S.W.2d 319, 323. In passing on the appellant’s points that there is no evidence to support certain implied findings of the trial court, we must consider only that evidence most favorable thereto and disregard entirely that which is to the contrary. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613; Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97, 100.

The trial court impliedly found that Mrs. Cozart’s injuries were proximately caused by negligence of appellant or his employee, and appellees argue that the circumstantial evidence is sufficient to support the trial court’s implied finding of such negligence, in that, inter alia, appellant failed to maintain adequate facilities for the confinement of the cattle to the pasture.

Appellant owed a continuing duty to exercise ordinary care to prevent the cattle from escaping and creating hazardous conditions upon highways. Cozart testified to the condition of the fences when he inspected them several days after the accident, and Ramsey testified they were then in the same condition they were in on the night of the accident. Cozart testified that the fence had “stretched like the cattle had been going through it,” that “it looked like cattle could just walk up and go through it nearly anywhere”; that “the barbed wire was actually drooping and leaving spaces so the cattle could get through”; that the fence was in bad shape, was “sagged and it looked like the cattle had been pushing on it quite a bit”; and that in his opinion the cattle could have gotten through the fence without any trouble.

Negligence in such cases, like any other fact issue, may be proved by circumstantial evidence, and the trier of the facts may properly consider such inferences as may reasonably be drawn from the facts proved. International & G. N. R. Co. v. Finger, Tex.Civ.App., 16 S.W.2d 132, wr. dism.; Comet Motor Freight Lines v. Holmes, Tex.Civ.App., 175 S.W.2d 464, wr. ref. w. m. And if there is any evidence in the record to sustain the trial court’s findings we cannot substitute our findings therefor. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972, 977. Bearing these rules in mind, it is our opinion that this testimony, taken at face value and without regard to the opposing testimony, is some evidence in support of the implied finding of negligence. We also find that, considering the entire record, the evidence was sufficient to support it. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We likewise conclude that there was evidence of probative value, and that it was sufficient, to support the implied finding that such negligence was a proximate cause of Mrs. Cozart’s injuries. The accident occurred within less than two hours after the cattle were seen in the pasture and approximately half a mile away from the pasture. Therefore, there was not remoteness of either time or distance. Moreover, we think the element of foreseeability is likewise shown by the evidence; Ramsey must be charged with knowledge that if the cattle escaped they would probably endeavor to cross a highway and become a traffic hazard. Proximate cause, like negligence, may be established by circumstantial evidence. Bock v. Fellman Dry Goods Co., Tex.Com.App., 212 S.W. 635, 637. “The rule of foreseeability * * * does not require anticipation of the full details of an accident.” City of Abilene v. Fillmon, Tex.Civ.App., 342 S.W.2d 227, 231, wr. ref. n. r. e.

Appellant’s first four points of error are overruled.

By his fifth point of error appellant says there was no evidence to show that he was guilty of negligence per se by violating certain criminal laws, as had been alleged by appellees. The latter concede the absence of any such evidence. The point is therefore sustained. However, as we have already approved the trial court’s implied finding of actual negligence, our sustaining of this point will not require a reversal.

In his sixth point appellant asserts error in the exclusion of Cozart’s testimony, proffered on cross-examination, as to. his rate of speed. This point is without merit. In the first place, the question of whether Cozart may have been guilty of contributory negligence was of no moment in this venue hearing; all that was involved were the venue facts specified in Subdivision 9a of Art. 1995, relating only to the appellant’s negligence. In the second place, the record contains no bill of exceptions showing what the answer of the wit-ness would have been. We are not permitted to guess that the answer would have been both material and harmful to appellant. J. Weingarten, Inc. v. Brockman, 134 Tex. 451, 135 S.W.2d 698. The point therefore presents nothing for review. For these two reasons the sixth point is overruled.

The order overruling appellant’s plea o£ privilege is

Affirmed.


author: WILLIAMS, Justice.

text:
    Patricia Maxwell STEWART, Appellant, v. Charles Everett LONG, Appellee.
    No. 16587.
    Court of Civil Appeals of Texas. Dallas.
    July 23, 1965.
    Rehearing Denied Sept. 24, 1965.

      Saner, Jack, Sallinger & Nichols and Tim Kirk, Dallas, for appellant.
    McNees & McNees and James L. Mc-Nees, Jr., Dallas, for appellee.
   WILLIAMS, Justice.

This is a will contest. Patricia Maxwell Stewart, hereinafter referred to as proponent, filed a will of Alta Long, hereinafter called decedent, for probate in the Probate Court of Dallas County, Texas. Charles Everett Long, hereinafter referred to as contestant, resisted the offer of probate, contending that a later will had been executed by the decedent. The judge of the Probate Court admitted the will of decedent to probate. Contestant perfected his appeal to the District Court of Dallas County, Texas where the same issues were joined as in the Probate Court. The case was tried before a jury and, based upon the answers of the jury to special issues submitted, the trial court rendered a judgment denying the will offered by proponent to probate. Appellant-proponent has appealed from such judgment and her points are of such a nature that require a summarization of the essential facts.

FACTS

Alta Long died in Dallas County, Texas on February 17, 1963. On June 19, 1963 Patricia Maxwell Stewart filed for probate in the Probate Court of Dallas County an instrument dated July 22, 1959 executed by decedent and duly witnessed and made self-proving pursuant to the provisions of Section 59 of the Probate Code of Texas. By the terms thereof decedent left all of her property to her niece, the proponent herein. Charles Everett Long, decedent’s husband, contested the application for the probate of this will, contending that decedent had revoked said will by a later instrument. This contest was denied by the Probate Court and appeal was taken to the District Court for a trial de novo of the same issues.

In the District Court proponent introduced the will of July 22, 1959 together with the testimony of one of the witnesses thereto, Mrs. Steen, who said that she had witnessed the will and that as far as she knew such will had never been revoked. Proponent produced no further testimony and rested her case.

Contestant produced the witness Bruce Graham, an attorney, of Greenville, Texas, who testified that he had drafted the will dated July 22, 1959, and had witnessed the execution of the same with the formality as required by the Probate Code, and as far as he knew that will had never been revoked. Mr. Graham said that on April 18, 1961 he came to Dallas from Greenville where he interviewed Mrs. Long, at her request, and was asked by her to prepare another will. He stated that Mrs. Long had expressed concern to him concerning the way her niece, the proponent, had wasted the estate she had received from her father and that she, Mrs. Long, no longer wanted her to be the beneficiary under her will. After consultation with her for some time Mr. Graham said that Mrs. Long expressed the desire to think the matter over and told him that she would contact him later concerning the terms of the proposed new will. He said that a few days later Mrs. Long and her husband came to Green-ville from Dallas and that she then requested that he draft a new will in accordance with the terms discussed earlier in Dallas. He said that he then drafted the will according to Mrs. Long’s desires and mailed to her the original, retaining a carbon copy for his files. He identified Contestant’s Exhibit C-l as a copy of the instrument which he had retained for his files and being an exact copy of the instrument that he had drafted and sent to Mrs. Long. Contestant’s Exhibit C-l appears to be a form of a will which provides that contestant is to be the independent executor of the decedent’s estate; that contestant is given a life estate in the homestead in Dallas, Texas; that the residue of testatrix’s estate is to be conveyed in trust for three children of proponent, said trust to be used for the education of the children named. Mr. Graham related that when he mailed the original of Contestant’s Exhibit C-l to Mrs. Long he suggested to her that she execute the same at a title company or other place in her neighborhood. He said that he forwarded a bill for services for preparing this will to Mrs. Long which was subsequently paid. He further testified that as far as he knew this instrument which he had prepared was never executed by Mrs. Long.

Contestant produced Mrs. Jane Reuter, a friend of decedent, who testified that a few days before Mrs. Long’s death she had talked to her at Lake Whitney and in this conversation Mrs. Long had stated that she did not want her niece, Patricia Stewart, to benefit from her estate and that she wanted it to pass to her husband and grandchildren. She expressed some worry and concern to Mrs. Reuter whereupon Mrs. Reuter suggested that she ought to make a will which expressed her desires. Thereupon Mrs. Long said that: “It had already been attended to.”

Elizabeth Jean Pace, decedent’s stepdaughter, testified that on April 28, 1961 she borrowed decedent’s automobile and Mrs. Long had called her that afternoon for the return of the car because, in Mrs. Long’s words, “She had to go and have her will signed,” and she had to be there at four p.m. Mrs. Pace testified that when she delivered the car to Mrs. Long she saw that she had an envelope. She did not see the contents of the envelope but said that Mrs. Long had told her that she had her will, that she had to go and get it signed. The witness testified that in November or December of 1961 she saw the original of Contestant’s Exhibit C-l and at that time she recognized Alta Long’s signature as signed to the will at the places marked “Testatrix”. She also testfied that she saw that the blanks for the witnesses were signed and that the notary had signed and put a notarial seal on the instrument. She did not recall the names of the witnesses nor the notary public. She denied that she had ever seen the original of C-l at any other time.

Contestant testified that he first saw the original of C-l on April 27,1961 and at that time there were no signatures on the instrument. He testified, over obj ection that such testimony invaded the rule of Art. 3716, Vernon’s Ann.Civ.St. (Dead Man’s Statute), that he next saw the instrument on April 28, 1961; that on that occasion he looked at the instrument and all the blanks were signed, including witnesses and a notary public. He saw decedent’s name signed- to the original of C-l. He does not recall the names of either of the witnesses nor the notary public. He saw this instrument once or twice subsequent to that occasion, same being in an envelope in the cedar chest. The last time he saw Exhibit C-l was on January 1, 1963 but has not seen it since. He testified to making efforts to locate the original of Exhibit C-l by advertising in both daily papers and also sending out printed circulars to various friends and people.

The original of Contestant’s Exhibit C-l was never produced in court and no further testimony introduced to identify the witnesses or the notary public who allegedly had signed the original of said instrument.

Contestant closed its case with the above testimony and proponent offered no further testimony.

The court submitted two special issues, as follows:

“SPECIAL ISSUE NO. 1: Do you find from a preponderance of the evidence that at any time after April 26, 1961, and before her death, Mrs. Alta Long signed, as testatrix, the original instrument of which Exhibit C-l is a copy ?”

To which the jury answered “Yes”.

“SPECIAL ISSUE NO. 2: Do you find from a preponderance of the evidence that after Mrs. Alta Long signed the original instrument, of which Exhibit C-l is a copy, if you have heretofore found she did so, such instrument was signed, in the presence of Mrs. Alta Long, by two credible witnesses above the age of fourteen years?”

To which the jury answered “Yes”.

OPINION

By her first nine points of error, grouped together, appellant-proponent challenges the judgment denying decedent’s will for probate for the reason that there was no evidence, or insufficient evidence, to support the jury verdict, and the judgment of the court. By these points appellant-proponent contends that the will offered by her was shown to have been executed and entitled to probate unless the evidence demonstrates that such will had been revoked by a subsequent instrument executed with the same formalities as the first will. Sec. 63, Probate Code. Appellant-proponent argues that since the subsequent instrument relied upon by appellee-contestant was nothing more than an unexecuted typewritten copy of a purported will, and since there was no evidence, or insufficient evidence, to demonstrate the proper execution of said subsequent will, there is no basis for denying the probate of the will tendered. Appellee-contestant contends that while it is true he was unable to produce the original of the alleged subsequent will yet the jury was justified in answering the special' issues submitted based upon “evidence legally deducible from the facts established.” Appel-lee-contestant relies upon such cases as Miller v. Miller, Tex.Civ.App., 285 S.W.2d 373; Tynan v. Paschal, 27 Tex. 286; Massey v. Allen, Tex.Com.App., 248 S.W. 1067, and other cases, to support his contention.

We find no quarrel with the rule of law relied upon by appellee-contestant in the above recited cases, but we are unable to agree with him that there is any evidence of probative force to justify the answer of the jury to Special Issue No. 2 relating to the attesting witnesses. We agree with appellant-proponent that the record in this case is entirely devoid of any evidence (1) as to the age of the alleged attesting witnesses; (2) whether they were credible witnesses within the meaning of the Probate Code; and (3) whether they executed the same in the presence of the testatrix, and at her request. We sustain appellant-proponent’s Points 2, 4 and 5 relating to “no evidence” and “insufficient evidence” as to Special Issue No. 2.

By her tenth point of error, appellant-proponent complains of the action of the trial court in admitting in evidence the testimony of contestant that he had seen the name and signature of the decedent upon the purported will marked Exhibit C-l in that such testimony violated Art. 3716, V.A. C.S., commonly known as the Dead Man’s Statute. The facts surrounding contestant’s testimony relating to his viewing Exhibit C-l are found in his testimony, as follows :

“The Court interrogated the Contestant as follows:
“ * * * Now, before I rule on this question, I’ll ask the witness: You say you saw the original of Exhibit C-l in your bedroom?
“THE WITNESS: I did.
“THE COURT: Was Alta Long present at the time ?
“THE WITNESS: Not necessarily. She went in the kitchen to fix dinner.
“THE COURT: Was she in the room at any time about which your counsel has questioned you, in your presence ?
“THE WITNESS: It all depends on for what purpose you’re asking your question. Sure she was in the room at times, but it wasn’t purposely done on this will. That will was laid there on the bed to show me what was going on.
“THE COURT: All right. All right. Just a minute. You say that the original of Exhibit C-l was spread out on the bed ?
“THE WITNESS: No, it was in the envelope it came in. I picked it up.
“THE COURT: Did you put it on the bed?
“THE WITNESS: No, sir.
“THE COURT: How did you come into possession of it?
“THE WITNESS: I found it on the bed.
“THE COURT: Do you know by whom it had been placed there?
“THE WITNESS: Certainly, I knew. Anybody would understand that.”

Following this testimony he was permitted to say, over objection of appellant-proponent, that he had recognized the decedent’s signature on the original of C-l and that he had seen that it had been signed by witnesses and a notary public, the names of which he did not know.

We agree with appellant-proponent that the court erred in admitting this testimony, under the circumstances as revealed. Obviously, from contestant’s own testimony: “That will was laid there on the bed to show me what was going on,” we can only conclude that decedent had placed the will on the bed; that she was in and out of the room from time to time; and that his view of the instrument was nothing more than a part of a transaction with his wife.

As Chief Justice Dixon of this Court said in Munden v. Chambless, 315 S.W.2d 355:

“It has been held that the word transaction as used in the statute includes every method whereby one person can derive impressions or information from the conduct, condition or language of another, including written as well as oral communications. It has been said that the test is whether, in case the witness testified falsely, the deceased, if living could contradict the testimony of his own knowledge.”

We think the testimony in this case reveals a “transaction” with the decedent that would prohibit the testimony of contestant. Art. 3716, V.A.C.S.; Leahy v. Timon, 110 Tex. 73, 215 S.W. 951; Perdue v. Perdue, 110 Tex. 209, 217 S.W. 694, 220 S.W. 322; Mitchell v. Deane, Tex.Com.App., 10 S.W.2d 717; Roberts v. Bush, Tex.Civ.App., 352 S.W.2d 337; 19 Tex.Jur.2d § 989, pp. 40-42.

Appellee-contestant, by counterpoint contends that since the burden of showing non-revocation of the will was upon appellant-proponent, and since she failed to request special issues on the question of non-revocation, that such issues must be deemed to have been found by the court in favor of the judgment. We overrule this contention. A review of the entire record in this case leads us to the conclusion that the case should be .reversed and remanded for a new trial. This should be done both in the ends of justice and for the reasons assigned by us in sustaining appellant-proponent’s points. In addition thereto we believe that the case was submitted upon an erroneous theory concerning the burden of proof on the issue of non-revocation. Since the case will have to be retried we think it apropos to set forth certain rules and standards applicable and which should aid the trial judge in submitting the case to the jury.

(1) Since this case is one to probate a will in which a contest has been filed the basic inquiry is whether the will sought to be probated is the testatrix’s will or whether it is not, and such inquiry embraces the question whether the will offered for probate has been revoked. Langehennig v. Hohmann, 139 Tex. 452, 163 S.W.2d 402.

(2) In such a case the burden of proof is upon the proponent of a will to prove that the will offered was not revoked by the testatrix. Sec. 88(b) (3), Texas Probate Code, V.A.C.S.

(3) Proponent’s burden of proving that the will has not been revoked is discharged and the will is entitled to be probated when its due execution is proved, in the absence of circumstances which cast suspicion on it, or in the absence of evidence of its revocation. “This is done by a presumption of continuity of status and a prima facie case against a revocation. If the contestant puts in sufficient evidence to rebut the presumption of non-revocation, then the burden of going forward with the evidence shifts back to the proponent of the will, and he must discharge, by a preponderance of the evidence, his burden of proof that the will was not revoked.” Usher v. Gwynn, Tex.Civ.App., 375 S.W.2d 564, affirmed Supreme Court, Ashley v. Usher, 384 S.W.2d 696; McElroy v. Phink, 97 Tex. 147, 76 S.W. 753, 77 S.W. 1025; May v. Brown, 144 Tex. 350, 190 S.W.2d 715, 165 A.L.R. 1180; Brackenridge v. Roberts, 114 Tex. 418, 267 S.W. 244, 270 S.W. 1001, 6 Tex.L.Rev. 556.

(4) Texas courts have recognized a distinction between evidence sufficient to raise the issue of the act of revocation and sufficient evidence to show execution of a subsequent revoking will. Brackenridge v. Roberts, supra; May v. Brown, supra; Usher v. Gwynn, supra.

In the event the evidence of contestant is sufficient to overcome the presumption of continuity and to thereby cast upon proponent the burden of going forward with proof to establish the non-revocation of the tendered will, the court should then submit to the jury an issue or issues as to whether the proffered will has been revoked, properly placing the burden of proof upon proponent. Usher v. Gwynn, supra.

The judgment of the trial court is reversed and remanded.

Reversed and remanded.