author: CLEMENS, Presiding Judge.

text:
    Mary Loretta ZUBIENA, Respondent, v. Wayne Walter ZUBIENA, Appellant.
    No. 37713.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 4, 1977.
    Correnti & Mykins, James Dailey Wahl, St. Louis, for appellant.
    Klamen, Summers & Compton, Robert F. Summers, Clayton, for respondent.
   CLEMENS, Presiding Judge.

Defendant-husband appeals from the monetary provisions of the trial court’s decree of dissolution of marriage, contending the court’s order compelling him to make house payments and to pay plaintiff-wife’s attorney’s fees is inconsistent with its finding that plaintiff was self supporting and its order denying maintenance.

The court awarded plaintiff child support allowances and the right to remain in the family residence during the children’s minority and thereafter until sold. Defendant’s annual income was $23,000, as compared to plaintiff’s earnings of $4,800.

Defendant contends the decreed house payments “constitute maintenance” and are inconsistent with the court’s order denying maintenance. We reject this argument. The trial court explained the allowance: “In view of the order herein made, requiring respondent (sic) to make payment of the house payment on the family home, the court determines that petitioner is able to support herself and, therefore, the court denies maintenance.” We construe this as ordering defendant to make the house payments in lieu of other maintenance.

Defendant also contends the court erred in allowing plaintiff attorney fees since it found she “was self-supporting and not entitled to maintenance.” Such an allowance is proper “after considering all relevant factors.” Section 452.355, RSMo.; Beckman v. Beckman, 545 S.W.2d 300[8] (Mo.App.1976).

We have reviewed the record in light of Murphy v. Carrón, 536 S.W.2d 30[1-3] (Mo.1976) and cannot say the decree is against the weight of the evidence or that it erroneously declares or applies the law.

Decree affirmed.

DOWD and SMITH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Tommy Lee COVINGTON, Defendant-Appellant.
    No. 10622.
    Missouri Court of Appeals, Springfield District.
    Oct. 4, 1977.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Arthur T. Stephenson, Caruthersville, for defendant-appellant.
   PER CURIAM:

Appellant was jury-convicted of second degree murder in the killing of Robert Thompson at Caruthersville on August 10, 1976. In accordance with the verdict, appellant was sentenced to 15 years’ imprisonment and appealed.

By approving the transcript on appeal, the parties represent to us that it correctly includes all of the record in the cause. Rule 81.12(c), V.A.M.R. However, the transcript nowhere contains a judgment as required by Rule 27.11, V.A.M.R.

It is not appellant’s fault that the required judgment was not entered and his appeal will not be dismissed. Nevertheless, since it is essential for the purpose of appellate review that the judgment entry upon conviction be preserved and shown by the transcript on appeal, we must hold the appeal in abeyance, remand the cause to the trial court for entry of the required judgment, and reinstate the appeal upon receipt of a supplemental transcript containing said judgment. State v. Skaggs, 248 S.W.2d 635, 638[9-14] (Mo.1952); State v. Vinson, 337 Mo. 1023, 1027-1028, 87 S.W.2d 637, 640[8] (1935); State v. Asberry, 553 S.W. 2d 902, 903[1, 2] (Mo.App.1977); State v. Pogue, 552 S.W.2d 75 (Mo.App.1977).

It is so ordered.

All concur.


author: COOPER, Chief Justice.

text:
    Troy F. DONALDSON, Appellant, v. Shirley A. DONALDSON, Appellee.
    Supreme Court of Tennessee.
    Aug. 15, 1977.

      R. Jerome Shepherd, Cleveland, for appellant.
   OPINION

COOPER, Chief Justice.

The appellant, Troy F. Donaldson, brought suit in the Circuit Court of Bradley County against his wife, Shirley A. Donaldson, seeking damages resulting from an alleged “abuse of court process.” The appel-lee, a nonresident of Tennessee, was served with a copy of the complaint and summons in the State of Arizona pursuant to the Tennessee long-arm statute, § 20-235, T.C.A. et seq. The appellee made a special appearance to contest jurisdiction, and also sought to have the complaint dismissed for failure to state a cause of action. The trial court concluded that there were insufficient contacts with the State of Tennessee to establish jurisdiction, and dismissed the action.

Appellant charged in his complaint that he was injured by the malicious, willful, and intentional institution against him of two separate and distinct civil proceedings, both providing for the identical remedy of “imprisonment that is criminal in nature.” Specifically, appellant charged that on February 19, 1976, appellee filed a complaint in the Superior Court of Maricopa County, Arizona, under the Uniform Reciprocal Enforcement of Support Act (URESA). While the complaint was still viable and set for a hearing in the Circuit Court of Bradley County, appellee, on March 16, 1976, filed an action in Arizona seeking to hold appellant in contempt of court. The petition before the Arizona court was set for a hearing on April 14, 1976, two days after appellant was to appear in the Circuit Court of Bradley County for a hearing on the reciprocal support petition.

To establish jurisdiction in the courts of this state, appellant relies on § 20-235, T.C.A., which, in pertinent part, provides as follows:

Persons who are nonresidents of Tennessee who are outside the state and cannot be personally served with process within the state are subject to the jurisdiction of the courts of this state as to any action or claim for relief arising from:
******
(b) any tortious act or omission within this state .

Section (b) has been held to confer jurisdiction over nonresident tortfeasors in situations where the alleged tortious conduct took place outside the state but the resulting injury occurred within the state. Hanvy v. Crosman Arms Co., 225 Tenn. 262, 466 S.W.2d 214 (1971). Appellant contends that his complaint is sufficient to make out the tort of “abuse of court process,” and that the appellee’s actions in Arizona have resulted in a tortious injury to him within this state, entitling him to invoke the jurisdiction of its courts.

We disagree with appellant’s contention that the complaint is sufficient to state a claim for “abuse of court process.”

While a complaint in a tort action need not contain in minute detail the facts that give rise to the claim, it either must contain “direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested ... by the pleader, or contain allegations from which an inference may fairly be drawn that evidence on these material points will be introduced at trial.” C. WRIGHT AND A. MILLER, FEDERAL PRACTICE AND PROCEDURE, § 1216 at 121-123. See also Section 8.01 of the Tennessee Rules of Civil Procedure which provides that a pleading which sets forth a claim for relief shall contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . .

There are two tort actions that may be brought to obtain redress for the alleged misuse of legal process by another: abuse of process and malicious prosecution. An action for abuse of process lies for the use of legal process to obtain a result it was not intended to effect, for a wrongful purpose. Priest v. Union Agency, 174 Tenn. 304, 125 S.W.2d 142 (1939). Malicious prosecution, or the malicious use of process, is the employment of legal process for its ostensible purpose, but without probable cause. To make out a claim for malicious prosecution, a plaintiff must show that the defendant, with malice, initiated legal proceedings against him without probable cause, and that those proceedings terminated in his favor. Swepson v. Davis, 109 Tenn. 99, 70 S.W. 65 (1902); see also Merritt-Chapman & Scott Corp. v. Elgin Coal, Inc., 358 F.Supp. 17 (E.D.Tenn.1972), aff’d, 6 Cir., 477 F.2d 598.

In the instant case, there is no allegation, or even intimation, in the complaint that the appellee employed legal process to obtain an end that the process was not intended to effect. Thus appellant has not stated a claim for abuse of process. Priest v. Union Agency, supra. Neither has appellant stated a claim for malicious prosecution, since there is no allegation that either of the two suits were resolved in favor of appellant. In fact, affidavit of counsel for appellant submitted in opposition to the motion to dismiss indicates to the contrary. Swepson v. Davis, supra.

There is no duty on the part of the court to create a claim that the pleader does not spell out in his complaint. Clark v. National Travelers Insurance Co., 518 F.2d 1167 (6th Cir. 1975). And where, as here, no claim for relief is stated by a party, a court may properly dismiss the action, either on motion or sua sponte. Dodd v. Spokane County, Washington, 393 F.2d 330 (9th Cir. 1968); Clinton Community Hospital Corporation v. Southern Maryland Medical Center, 374 F.Supp. 450 (D.Md.1974), aff’d, 510 F.2d 1037 (4th Cir. 1975), cert, den., 422 U.S. 1048, 95 S.Ct. 2666, 45 L.Ed.2d 700 (1975). Accordingly, the judgment of the trial court dismissing the action is affirmed. Costs incident to the appeal are adjudged against the appellant and his surety.

FONES, HENRY, BROCK and HARBI-SON, JJ., concur.

      . Although it was not set forth in the complaint, the second action appears to have been predicated on the failure of appellant to make support payments as had been previously ordered by the Arizona court.


author: BROCK, Justice.

text:
    Mary Jane EZELL, Executrix of the Estate of Theo F. Ezell, Deceased, Appellant, v. Bob BUHLER, Administrator of the Estate of Mrs. Nell Hobbs, Deceased, Appellee.
    Supreme Court of Tennessee.
    Aug. 22, 1977.

      John Wm. Martin, Reed & Martin, Lebanon, for appellant.
    Robert T. Rochelle, Rochelle & Callis, Lebanon, for appellee.
   OPINION

BROCK, Justice.

The only issue which we are at liberty to consider upon this appeal is whether or not the Circuit Court erred in holding that it had no jurisdiction of the appeal to that court from the judgment of the County Court overruling the appellant’s exception to a claim filed by the appellee against the estate of her decedent. We affirm the judgment of the Circuit Court.

The appellee, administrator of the estate of Mrs. Nell Hobbs, deceased, on June 20, 1975, filed a claim for rent against the estate of Theo F. Ezell, deceased, in the County Court, which was administering the Ezell estate. Appellant, executrix of the Ezell estate, filed an exception to the claim on November 6, 1975. Thereafter, appellant sought to withdraw her exception and moved the court to dismiss the claim on the ground it had not been filed in proper form. Since publication of the notice to creditors began on January 23, 1975, the time for filing exceptions to claims would ordinarily expire at the end of six months, plus thirty days, from that date, or, on August 22, 1975. See T.C.A., § 30-517. Accordingly, the County Judge dismissed appellant’s exception and awarded judgment against the Ezell estate for the rent claim.

Appellant appealed the County Court judgment to the Circuit Court which concluded that jurisdiction of such appeals is not in the circuit court, but is exclusively in the Court of Appeals or the Supreme Court. Accordingly, the appeal was dismissed.

T.C.A., § 30-518, in pertinent part, provides:

“The county or the probate court . shall hear and determine all issues arising upon all such exceptions. . . . and from [the judgment] an appeal may be perfected within thirty (30) days from the date of entry of the judgment, to the Court of Appeals or the Supreme Court, as the case may be.”

In Rowan v. Inman, 207 Tenn. 144, 338 S.W.2d 578 (1960), this Court construed this statutory provision to mean that the only review of a judgment of a county or probate court allowing or striking exceptions to a claim against an estate was by appeal to the Court of Appeals or the Supreme Court. Accord, Browne v. Browne, Tenn., 547 S.W.2d 239, 241 (1977). The language of the statute, “. . .as the case may be,” has been held to be equivalent to a provision that the appeal lies to the Court of Appeals or the Supreme Court, as provided by T.C.A., § 16-408, as that section has been construed by the Supreme Court. Sizemore v. Rhinehart, 193 Tenn. 475, 246 S.W.2d 91 (1952).

It is obvious that the Circuit Court was correct in holding that that court was without jurisdiction of the appeal in this case and in dismissing the appeal.

Unfortunately, we are not at liberty to consider alleged errors in the judgment of the County Court since no appeal from that court was prayed and granted to this Court; only the judgment of the Circuit Court was appealed to this Court.

The judgment of the Circuit Court is affirmed and costs are taxed against appellant and surety.

COOPER, C. J., and FONES, HENRY and HARBISON, JJ., concur.


author: HENRY, Justice.

text:
    Ricky VAUGHN, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Sept. 6, 1977.
   OPINION AND ORDER

HENRY, Justice.

This petition for the common law writ of certiorari raises the single question of the proper construction of Sec. 40-1131, T.C.A., relating to preliminary hearings.

Petitioner was arrested on 14 June 1977, pursuant to a four-count indictment found by the Dyer County Grand Jury. No prior warrant of arrest was issued and no preliminary hearing was held.

In the trial court, Petitioner (1) moved for a preliminary hearing, (2) filed a plea in abatement, and (3) moved to dismiss the indictment. All were grounded upon Sec. 40-1131, T.C.A., and all were overruled by the trial judge.

Sec. 40-1131, T.C.A., reads as follows: 40-1131. Right to preliminary hearing. — In all criminal cases, prior to presentment and indictment, whether the charge be a misdemeanor or a felony, the accused shall be entitled to a preliminary hearing, whether the grand jury of the county be in session or not.
If the accused is indicted during the period of time in which his preliminary hearing is being continued, or at any time before accused has been afforded a preliminary hearing on a warrant, he may abate the indictment upon motion to the court. Provided, however, that no such motion for abatement shall be granted after the expiration of thirty (30) days from the date of the accused’s arrest.

The first paragraph of § 40-1131 was passed on May 12, 1971. The second paragraph was effective April 4, 1974.

A preliminary hearing is not constitutionally required. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); McKeldin v. State, 516 S.W.2d 82 (Tenn.1974); McCracken v. State, 529 S.W.2d 724 (Tenn.Crim.App.1975).

While this statute is not a model of clarity, we think its import is properly set forth in Harris v. State, 534 S.W.2d 868, 870 (Tenn.Crim.App.1975).

This language clearly applie[d] only to a situation wherein an accused has been arrested on a warrant prior to indictment, and has no application to the situation in the case sub judice, wherein the very first action against the accused was the return of the indictment.
If the Legislature means to say that no person shall be indicted and put to trial on an indictment until they have first had a preliminary hearing then the wording of T.C.A. § 40-1131 will have to be changed. The statute, as written in 1971 and added to in 1974, only covers the case of one arrested on a charge and not given a preliminary hearing prior to indictment. It has no application to a case wherein the first State action is an indictment or presentment, as here. Obviously, a post-indictment “preliminary hearing” would be a mutation of procedures creating many procedural problems. If broader discovery procedures are desired by the Legislature a direct approach, with procedures tailored to that purpose, would serve far better than bending a probable cause proceeding to serve a discovery purpose.

When consideration is given to the evil sought to be corrected by Chapter 245, Acts of 1971, the legislative intent becomes even more apparent. Chapter 16, Acts of 1899 appears as Sec. 11575 in Williams’ Tennessee Code and in the Code Supplement of 1950, and as See. 40-402 T.C.A. (original volume). It read, in pertinent part, as follows:

Whenever any person, is [charged upon a state’s warrant], if the grand jury of the county . . . is in session, the . justice of the peace shall not try the case, unless the defendant pleads guilty, but shall [take bond, etc.] pending an investigation of said offense by said grand jury.

This section was repealed by Chapter 245, Acts of 1971, which forms the basis of the first paragraph of Sec. 40-1131, T.C.A., which mandates a preliminary hearing irrespective of the convention of the grand jury — but only in those cases wherein the accused was charged by arrest warrant.

Nothing in Sec. 40-1131 mandates a preliminary hearing in those cases wherein the prosecution originated by presentment or indictment. The District Attorney General and law enforcement personnel are legally entitled to omit the normal arrest procedure and to take their cases directly to the grand jury whenever they feel it feasible to assume the potential hazard of an uncharged defendant’s unceremonious departure from the jurisdiction.

The writ is respectfully denied, but without prejudice to petitioner’s right to assign appropriate error should an appeal be pursued.


text:
    Polly WITTENBARGER, Appellant, v. The CARR COMPANY, Appellee.
    Supreme Court of Tennessee.
    Oct. 3, 1977.

      Carey E. Garrett, Knoxville, for appellant.
    Arthur G. Seymour, Jr., Frantz, McConnell & Seymour, Knoxville, for appellee.
   OPINION

HENRY, Justice.

This case arises under the Workmen’s Compensation law.

Appellant suffers from bronchitis contracted as a result of exposure to paint, MEK and Toluene fumes during the course and scope of, and rising out of, her employment.

She insists (1) that bronchitis, though not a listed occupational disease, is so closely related thereto as to be compensable and (2) that her work-related bronchitis is an injury within the meaning of the Workmen’s Compensation law.

Under the authority of American Insurance Company v. Ison, 519 S.W.2d 778 (Tenn.1975), the first insistence must be rejected. After the hearing, the Chancellor handed down a memorandum opinion holding, in effect, that the first prong of the Ison test, i. e. identity of pathological effects, was established but that there was nothing in the record to establish that bronchitis was caused by the hazards of employment which are also known to cause one of the named occupational diseases. Therefore, the case was continued for the procurement and presentation of medical evidence designed to establish this portion of the Ison criteria.

Subsequently claimant’s counsel advised that he could obtain “no medical testimony that the disease in question [bronchitis] is caused by the hazards of the employment which also cause one of the named occupational diseases.”

Hence, under Ison, we must affirm the ruling of the Chancellor in this respect.

Claimant insists that work-related bronchitis is an “injury by accident” within the meaning of the law, we disagree. The workmen’s compensation statutes constitute a scheme of benefit payments based upon injury and on disease. Occupational diseases are embraced within the term “injury” and “personal injury.” Sec. 50-902(d), T.C.A. The act contains a detailed list of schedule injuries (Sec. 50-1007) and a list of occupational diseases (Sec. 50-1101).

Bronchitis is not one of the listed diseases and under the Ison standard it is not closely related thereto. Nor is it an “injury by accident”. See Morrison v. Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272 (1931). See also Meade-Fiber Corp. v. Starnes, 147 Tenn. 362, 247 S.W. 989 (1923); Gabbard v. Proctor & Gamble Defense Corp., 184 Tenn. 464, 201 S.W.2d 651 (1947).

The decree of the Chancellor is

Affirmed.

COOPER, C. J., and FONES, BROCK and HARBISON, JJ., concur.

ADDENDUM

Tax costs against appellant.

      . This action arose prior to the effective date of Chapter 339, Acts of 1977, which strikes all listed occupational diseases and provides coverage for “all diseases arising out of and in the course of employment.”


author: FONES, Justice.

text:
    HIGHLAND CONSTRUCTION COMPANY, Appellant, v. K.I.T. COAL COMPANY and Hazen Kreis, Appellees.
    Supreme Court of Tennessee.
    Oct. 3, 1977.
   ORDER OF REMAND

FONES, Justice.

This action involves more than one claim for relief and multiple parties and must be remanded to the trial court for failure to comply with the mandates of T.C.A. § 27-305. These mandates are the express subject of this Court’s opinions in Frame v. Marlin Firearms Company, Inc., 514 S.W.2d 728 (Tenn.1974), and Loyd v. State Farm Mutual Automobile Ins. Co., 521 S.W.2d 556 (Tenn.1975).

Upon remand it is suggested that the threshold issues of (1) whether or not the complaint, on its face, alleges each of the statutory prerequisites necessary to the perfection of a mechanics and materialman’s lien and (2) whether or not plaintiff has timely complied with all of the procedural steps necessary to the enforcement of a mechanics and materialman’s lien, be addressed. The issue of whether or not the work alleged to have been performed on defendant’s property, falls within the definition of “improvement” as defined in T.C.A. § 64-1101 probably cannot be determined from the face of the complaint.

Remanded to the Circuit Court of Scott County for further proceedings.

COOPER, C. J., and HENRY, BROCK, and HARBISON, JJ., concur.


author: SHRIVER, Presiding Judge.

text:
    John B. SHORES et ux., Plaintiffs-Appellants, v. William C. SPANN and Spannz Development Company, Defendants-Appellees.
    Gary W. MOORE et ux., Plaintiffs-Appellants, v. William C. SPANN and Spannz Development Company, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    April 29, 1977.
    Certiorari Denied by Supreme Court July 5, 1977.

      Michael R. Jones, Springfield, for plaintiffs-appellants.
    Robert F. Spann, Nashville, Joe K. Walker, Springfield, for defendants-appellees.
   OPINION

SHRIVER, Presiding Judge.

These cases were consolidated and tried before the Honorable Thomas Boyers, III, Judge of the Circuit Court of Robertson County, without the intervention of a jury, and at the conclusion of the trial he entered an order dismissing both cases, whereupon, the plaintiffs appealed and have assigned error.

The Pleadings and Proceedings Below

The cases were instituted in the General Sessions Court of Robertson County and from the judgment in favor of plaintiffs, were appealed to the Circuit Court. Upon motion, the civil warrants were amended in the circuit Court so as to allege that the defendant, William C. Spann, negligently constructed a house on each of the two lots, Nos. 66 and 71, in the Whispering Meadows Subdivision, with a septic tank and sewage system for each house, knowing that the system could not reasonably be expected to function correctly, and then sold said houses to the respective plaintiffs; that the defendant, knowing that a defective condition existed in the sewage disposal system, failed to disclose to the plaintiffs the condition of the premises and that said defective condition affected the health and safety of the plaintiffs and that said failure on the part of the defendant constituted actionable fraud for which he is liable for damages not to exceed $3,000.00 in each case.

The amended warrants also charged that the defendant expressly warranted that the house in question was constructed according to plans and specifications approved by the Federal Housing Administration and that as constructed said houses had defective sewage disposal systems and this constituted a breach of express warranty. And, in the alternative, plaintiffs charge that the defendant impliedly warranted the houses to be suitable for habitation and that they were constructed in a workmanlike manner and that the defendant is expressly liable to the plaintiffs under the theory of the Restatement of Torts 2d 402A for damages, not to exceed $3,000.00.

The answer of the defendant Spann denies liability and asserts that, in the event the Court should assess damages against him, he would be entitled to a set-off for the fair market rental value of the house located on Lot No. 66, in the amount of $240.00 a month for the period of time that plaintiffs lived in said house, inasmuch as they did not make any mortgage payments while they lived there and are suing for the return of their down payment on the house.

For further answer, defendant avers that he purchased the lots in question from H. L. Crowder about May 29, 1973, and at the time of the conveyance to him soil percolation tests had been made and that it was represented to him that the type and nature of the soil was such that it would percolate satisfactorily so as to dispose of sewage for the residences thereon.

He avers that if any damages accrued, it was the fault of H. L. Crowder and not defendant Spann and prays that, in the event of judgment against him, he have judgment over against the third party defendant, H. L. Crowder.

For answer, the third party defendant, Crowder, denies any liability and asserts as an affirmative defense that the property known as Whispering Meadows Subdivision has been substantially complete for more than four years and that, therefore, any action based on defective improvements on said property is barred by the Statute of Limitations, T.C.A. § 28-314, et seq., which is specifically pleaded.

After a full hearing the Court entered the following order:

“ORDER
“These causes came bn to be heard before the Thomas Boyers, III, Judge of the Circuit Court for Robertson County, Tennessee, on the 25th day of March, 1976, pursuant to Tennessee Rule of Civil Procedure 42.01 these cases were consolidated, the same being an appeal from the General Sessions Court of Robertson County, Tennessee, upon the testimony of witnesses in open Court, statement of counsel for the plaintiffs, defendant, third party plaintiff and third party defendants, from all of which the Court found that the respective plaintiffs purchased new homes from the defendant, who was the owner of the lots and builder of said homes, and that the septic tank systems installed by the defendant in said homes caused raw sewage to flow onto the surface of said lots, and that the third party defendant was the original owner of said lots, having sold these lots to the defendant, and the Court was of the opinion that the ‘caveat emptor’ doctrine demanded that the plaintiffs’ cases be dismissed.
It is, therefore, ORDERED, ADJUDGED and DECREED by the Court that the plaintiffs’ cases be dismissed on the ground that the legal theory of ‘caveat emptor’ is applicable and bars recovery.
That plaintiffs are granted thirty (30) days to perfect their appeal to the Court of Appeals.
ENTERED, this 24th day of June, 1976.
/s/ Thomas Bovers. Ill
JUDGE”.

Assignment of Error

There is a single assignment which is designated “Statement of Errors of Law”, which is as follows:

“The Trial Judge in his order specifically held that the action of the appellants was barred by the rule of caveat emptor. The appellants are contending that the doctrine of caveat emptor has outlived its usefulness and should be replaced with the implied warranty — strict liability theory announced in Waggoner v. Midwestern Development, Inc., 83 S.D. 57, 154 N.W.2d 803 (S.D.1967).”

The Facts

We have before us a narrative bill of exceptions which by proper order was amended and approved by the Trial Judge.

The testimony of plaintiff, John B. Shores, was to the effect that during the Summer of 1974, he and his wife looked at a house located on Lot No. 64 on the Plan of Whispering Meadows Subdivision (the warrant, as amended, refers to Lot No. 66); that an employee of defendant, William C. Spann, showed them the house and they noticed a wet spot in the yard but were told that it was probably a run-off from the interstate; that on August 8, 1974, they purchased the house and lot and were informed that Mr. Spann had built the house and that it had not been previously occupied; that within six or eight weeks problems developed with the septic tank system and, upon complaining about it, Mr. Spann caused more field lines to be installed but septic waste water again appeared in the yard, whereupon, a hole was knocked in the end of the field line causing the overflow to run into an open ditch in front of the house.

He testified that in purchasing the house they made a down payment of $2,000.00 and paid a closing cost of $298.92, plus $10.00 for a credit report; that they moved into the house on August 8, 1974 and that, although a house payment was due in September, 1974, they made no payments even though they had the money with which to pay; that they remained in the house from August, 1974 until April, 1975, but that in February, 1975 they conveyed the house to the Secretary of Housing and Urban Development and that they paid no rent on the house during the time they lived there.

Mrs. John B. Shores corroborated her husband’s testimony.

Plaintiff, Gary W. Moore, testified that he and his wife purchased a house on Lot No. 71 in the Whispering Meadows Subdivision from Mr. Spann on December 31,1974; that several weeks after moving in and upon mowing the yard, he discovered several wet places and that septic tank waste appeared on the ground of the lot and that thereupon they conveyed the house to the Secretary of Housing and Urban Development as his mortgage through the Guaranty Mortgage Company was FHA insured. He testified that at the time of purchase they paid $1,000.00 down payment and $501.39 closing cost and, thereafter, paid three house payments to Guaranty Mortgage in the amount of $208.00 each and did not make any other house payments.

Defendant, William C. Spann, testified that he was the owner of lots Nos. 66 and 71 above described, that he built the houses thereon for the purpose of selling them and that they were sold to the plaintiffs, Shores and Moore; that he had purchased these lots from Mr. H. L. Crowder; that the houses were new and had not been occupied prior to occupation by plaintiffs. He testified that the septic tank systems had been inspected by the Robertson County Health Department at the time of installation and met all the standards of the Health Department and that after the Shores moved into their house, he did cause additional footage of drainage field to be installed for them but he did not make any additional field lines for the Moores since he did not feel that it was necessary.

He testified that he made no representations to either purchaser that the septic tank systems would be perfect and that, in fact, the septic tank systems operated correctly.

The record of Mr. Spann’s testimony was enlarged upon so as to state that the subdivision in question was laid out with streets, water, etc., and that there were a total of 104 lots; that at the time he purchased four building lots there were several other homes that had been built in the subdivision on other lots and that he was informed by the vendor that the subdivision was approved, that percolation tests were run on various lots and that they were approved for septic tanks; that in accordance with prescribed rules and regulations he obtained a building permit from the Robertson County Health Department and that the installation of the septic tanks was inspected as they were being installed by Mr. Jerry W. Collins, Sanitarian for the Robertson County Health Department, and that the installation of the septic tanks and the plumbing was in complete accord with specifications for this subdivision and that construction and installation was approved by Mr. Collins for the Robertson County Health Department. He further testified that the houses were built in accordance with FHA specifications and the construction of the homes was also inspected by the FHA inspectors; that he had no notice or knowledge of any problem with the septic tank or overflow systems installed until after the houses were occupied by the plaintiffs. He denied that he made any representations to the purchasers concerning the houses other than that they were constructed according to FHA standards and that he knew of no defects in the construction of the houses prior to occupancy.

The testimony of the plaintiffs was amended to state:

“That after living in the houses for several months, the payments to the mortgage company were not current and they deeded the property back to the Secretary of Housing and Urban Development by deed in lieu of foreclosure.”

Our Conclusions

Counsel for the plaintiffs-appellants insists that the Trial Judge erred in holding that the rule of caveat emptor applied and that, under said rule, the cases were dismissed.

Appellants cite and discuss Smith v. Tucker, 151 Tenn. 347, 270 S.W. 66, where it is said that between the vendor and vendee of real estate, once the vendee has taken possession the vendor is not subject to liability for bodily harm to the vendee or to others while upon the premises by a dangerous condition which existed at the time of the sale. It is stated that this rule has existed in Tennessee for many years but many exceptions have been created and that through the years the pendulum has swung full circle and now the rule of caveat emptor is fast becoming obsolete.

Citing Cooper v. Cordora Sand & Gravel Co., Inc., 485 S.W.2d 261 [Tenn.App.1971], it is argued that the trend of the decisions throughout the country is to protect the purchasers and consumers because the promoters and vendors are now sophisticated and are able to protect themselves in the market.

However, in that case it should be noted that the Court held the vendor-developer liable for fraud in dealing with the purchasers.

Belote v. Memphis Development Co., 208 Tenn. 434, 346 S.W.2d 441 (1961) is cited as standing for the proposition that a vendor of land who concealed or failed to disclose to his vendee any condition involving unreasonable risk to the person upon the land is subject to liability for bodily harm caused thereby to the vendee and others if the vendee does not know of the condition and the vendor does know and has reason to believe that the vendee will not discover the condition or realize the risk.

These and the other cases relied on by appellants are clearly distinguishable from the case at bar.

Counsel for appellants also argue that there is an implied warranty of reasonable workmanship and habitability surviving the delivery of a deed.

On the other hand, as is pointed out by counsel for the defendant, the testimony in this case is for the most part undisputed, that is that the house, including the septic tanks and overflows, were built and installed in a workmanlike manner and were inspected and approved by the appropriate authorities.

The testimony of the defendant, Mr. Spann, is undisputed that at the time the houses were built and sold to the plaintiffs, other homes had already been built in the subdivision and, as far as he knew, there had been no trouble with septic tanks and overflows and that information on which he relied and which appeared to be accurate was that percolation tests had been made and the subdivision approved by the Health Department of Robertson County and, furthermore, the plumbing system, including the septic tanks and overflows, were inspected by the proper authorities and representatives of the Health Department and were approved by them at the time of the installation.

The Trial Judge heard these witnesses and concluded that there had been no misrepresentation made by the defendant to induce plaintiffs to purchase their respective properties and that defendant was not liable under the facts shown by the record.

Defendant cites and relies on the holding in Dozier v. Hawthorne Development Co., 37 Tenn.App. 279, 262 S.W.2d 705 (1953) wherein the Court dealt with a situation very similar to that involved in the case at bar. In the Dozier case plaintiffs had purchased a residence from the defendant Company and it was shown that prior to the purchase by plaintiff, the septic tank system had been approved by the Sanitary Engineer of Davidson County representing the Health Department of the County, but shortly after moving into the house the purchasers complained to their vendor that the septic tank did not properly dispose of the sewage but let it well up in the yard and they called on the vendor to refund what they had paid on the property and on their note and offered to execute a deed conveying their equity back to the vendor, provided it would assume payment of the balance of the note but the defendant Company refused, whereupon, the purchasers filed suit to recover what they had paid on account of the purchase and to obtain other incidental relief.

In an opinion written by Mr. Justice Felts it is pointed out that the plan for the subdivision had been approved and the County Health Department authorized the installation of septic tanks to take care of the sewage from the homes built on the lots. The Court stated:

“If this expert sanitary engineer, the official whose duty it was to determine the matter, was of the opinion that the soil would be adequate for the large building lots, it would seem that the vendor and its officers could safely follow that opinion. .
“The rule of caveat emptor generally applies to sales of land. Smith v. Tucker, 151 Tenn. 347, 270 S.W. 66, 41 A.L.R. 830.”

The opinion quotes the plaintiff as saying that there was no discussion between him and the seller about any septic tank before or at the time of the contract.

In the Dozier case, it was said that where purchasers bought a house which had a septic tank approved by a sanitary engineer of the Health Department, without making an investigation of sewerage disposal facilities, and where the vendor made no representations concerning the sewerage system, the purchasers could not rescind the contract when the septic tank failed, and the opinion stated:

“In order to constitute fraud or be ground of rescission, there must not only be a representation as to an existing fact but the representation must have been relied upon, and must have been so material that it determined the conduct of the party seeking relief.”

Applying the principles announced in Dozier, supra, to the case at bar, we think the Trial Judge reached the right conclusion. This is true regardless of the application or non-application of the doctrine of caveat emptor.

The Court found that there had been no fraud or misrepresentation on the part of the vendor of this property who relied on the action of the representatives of the Health Department of the County in approving the construction of residences with subsurface sewage disposal systems and actually approved the construction of such systems on the property sold to the plaintiffs.

This case comes to us for trial de novo with a presumption of correctness unless the evidence preponderates against the conclusions of the Trial Judge and must be affirmed unless the evidence preponderates against his conclusions. § 27-303, T.C.A.

It is to be borne in mind that where the case is tried without a jury on oral testimony, the judgment of the Trial Court is entitled to great weight on appeal and his finding as to the credibility of witnesses is conclusive. Early v. Street, 192 Tenn. 463, 241 S.W.2d 531 (1951), and numerous cases.

We find that the evidence clearly supports the factual conclusions of the Trial Judge in the case at bar. It, therefore, results that the assignment of error is overruled and the judgment of the Trial Court is affirmed.

AFFIRMED.

TODD and DROWOTA, JJ., concur.


author: REAVLEY, Justice.

text:
    T. H. NEEL et al., Petitioners, v. W. L. FULLER, Respondent.
    No. B-6016.
    Supreme Court of Texas.
    July 20, 1977.
    Rehearing Denied Oct. 5, 1977.
    L. Holt Magee, Monahans, Bullock, Scott & Neisig, Russell W. Neisig and Maurice R. Bullock, Midland, for petitioners.
    Turpin, Smith & Dyer, Irby L. Dyer, Midland, for respondent.
   ON MOTION FOR REHEARING

REAVLEY, Justice.

We grant the motion for rehearing filed by W. L. Fuller, set aside our former judgment, withdraw our opinion of December 22,1976, reverse the judgment of the Court of Civil Appeals, and modify and affirm the judgment of the trial court with the following opinion.

This suit concerns the effect of a sale by the owners of a royalty interest at the time that interest was in custodia legis because of a pending receivership. The receivers instituted this suit seeking a declaratory judgment to have the royalty deed declared of no force or effect insofar as it limited or interfered with the powers of the receivers, acting under control of the court. The trial court granted the receivers’ motion for summary judgment, declaring that the title to the property was not affected in any manner by the royalty deed and nullifying all claim of the grantee thereunder. The Court of Civil Appeals reversed and rendered a take-nothing judgment against the receivers. 535 S.W.2d 719. We reverse the judgment of the Court of Civil Appeals and, with modification, affirm the trial court judgment for the receivers.

Charles E. Nichols who died in 1931, and Nellie D. Nichols who died in 1945, were the owners of 32 tracts of land in Ward County. The executors of their estates and the Nichols heirs and devisees were parties to a suit filed in the District Court of Ward County which sought construction of the wills, determination of ownership, conservation and partition of the estate. Following a trial in this Cause No. 6084 the court placed the property in receivership, and the court appointed O. P. Jenson as receiver with powers to sell or rent the land and to divide the proceeds among 20 named persons according to the respective interests of each as stated in the court’s order.

In 1948 these same Nichols heirs and dev-isees, acting individually and without any participation of the court, executed a trust agreement which purported to convey title in all of this same real property to O. P. Jenson as trustee with full powers of sale and with the direction that the trustee should divide and distribute the assets to the grantors. The instrument further provided that upon the death of O. P. Jenson the same title and powers should devolve upon T. H. Neel as substitute trustee. Thereafter O. P. Jenson did make numerous sales of these lands, but the present record indicates that he made very few reports to the court on his activities. In May of 1954 he made a report which covered the transactions of the receivership from January 1, 1947 to the date of the report and showed the disposal of the bulk of the real property. 0. P. Jenson died in 1957. The Jenson family turned over the Nichols property records to T. H. Neel, who then began to act as successor trustee pursuant to the trust agreement.

In 1966 Neel reported to the court in the receivership cause that he had acted as successor trustee and had made sales of the property but that doubt had risen about his authority to do so. He alleged that the receivership should be closed, and he requested that he might be appointed receiver with authority to proceed with final disposition. In 1969 Henry B. Allen, Jr. also applied to the court to be appointed receiver to meet the need to close the receivership. The court appointed Neel and Allen co-receivers to take possession of the property, to prepare an inventory for the court, and “upon proper application to this Court and after notice to all parties and hearing thereon and confirmation by the Court, . [to] . . . adopt, correct, confirm or re-confirm any transactions of O. P. Jenson as Receiver or Trustee as may properly come before the Court, or any transaction of T. H. Neel as Trustee . . . .” The co-receivers proceeded to make an inventory of all of the assets and a list of the current owners of the property. In listing the current ownership they set forth numerous conveyances of interests in the estate by and under the original owners. They then reported to the court that the receivership was ready for closing except for a dispute over title to one of the tracts, which seems to have been the royalty interest claimed by W. L. Fuller.

In 1958 T. H. Neel and W. L. Fuller had agreed on the sale of a royalty interest in three tracts of land held in the receivership. Neel prepared the deed which recited the receivership and the trust agreement and then purported to convey the royalty interest from T. H. Neel as “receiver and trustee” to W. L. Fuller. There has been no confirmation by the court of this royalty conveyance.

The present litigation was instituted by Neel and Allen as receivers seeking a “declaratory judgment to adjudicate and declare of no force or effect . . . [the 1958 royalty deed to Fuller] . . . insofar as said instrument purports to limit or interfere with the exclusive rights of Plaintiffs, acting under control of the Court, to the possession, control and sale of the oil, gas and mineral interests purportedly conveyed thereby and to distribute the proceeds of a sale of the said oil, gas and mineral interests, as the Court may direct in the said Cause No. 6084.” The receivers alleged that Fuller claimed that, notwithstanding the existence of the receivership, the royalty deed conveyed all of the right, title and interest in the property described and that Fuller denied that the receivers could legally convey the royalty interest thereafter. The receivers further alleged that oil royalty had been paid to Fuller and that they should have judgment recovering same.

Fuller answered that he had intervened in the receivership proceeding and become a party to Cause No. 6084, which rendered moot any issue sought to be raised in the present lawsuit and left no question of law or a fact to be decided. Fuller did not pay into the receivership the amount of money he had received as royalty on the oil produced from this land. In subsequent briefs he has indicated a willingness to do this, but it is apparent that it will not be done unless he is required to do so by the judgment of the court.

The motion for summary judgment filed by the receivers described the relief sought in the same terms as their pleadings. The motion contended that its supporting affidavits showed that, except as to the amount of royalty, no issue of fact existed and that the plaintiffs were entitled to judgment:

[Declaring said Mineral Deed to be of no force and effect, insofar as it purports to limit or interfere with the exclusive rights of Plaintiffs, acting under control of the Court, to the possession, control and sale of the oil, gas and mineral interests purportedly conveyed thereby and to distribute the proceeds purportedly conveyed thereby and to distribute the proceeds of a sale as the Court may direct, and further declaring that the cloud cast upon the title of Plaintiffs by said Mineral Deed be removed.

The trial court rendered summary judgment which, in addition to ordering the recovery of the agreed amount of royalty payments received by Fuller, decreed that the royalty deed was illegal and void and of no force or effect, that the title of the property was not in any manner affected by the purported deed, and that all adverse claim of Fuller was removed.

It is apparently significant to the parties that the trial court did not restrict its declaration of the voidness of the royalty deed to Fuller to accord with the relief sought by the receivers in their pleadings and in their motion for summary judgment — i. e., by the language quoted above. The arguments at this stage seem to bear more upon the question of the effect of this royalty deed upon the interests of the Nichols devisees or heirs and their successors — rather than the legal power and control of the receivers pursuant to the direction and confirmation of the receivership court. We will give some attention to the former issue, but it is not properly the subject matter of this lawsuit since the owners of the Nichols estate are not parties here and the receivers sought the declaration of the invalidity of the royalty deed only to an extent which everyone seems to agree upon.

The judgment of the trial court is not incorrect, but the parties apparently regard it as deciding the relative position of Fuller and the parties to the receivership as to the royalty interest or whatever the court distributes in its stead. While the Court of Civil Appeals held that the royalty interest conveyed in 1958 to Fuller was subject to the pending receivership, that court then denied all relief to the receivers in the present suit. The receivers were entitled to the relief they sought. During the pendency of the receivership the property was held in custodia legis free from interference with the exclusive custody and possession which the court had assumed over it. First Southern Properties, Inc. v. Vallone, 533 S.W.2d 339 (Tex.1976); Ellis v. Vernon Ice Co. & Water Co., 86 Tex. 109, 23 S.W. 858 (1893); Russell v. Texas & P. Ry. Co., 68 Tex. 646, 5 S.W. 686 (1887); see Ex parte Britton, 127 Tex. 85, 92 S.W.2d 224 (1936).

Without confirmation by the court, the legal title to this royalty interest could not pass to Fuller, and he is not entitled to receive royalty payments from the production of the minerals. The purchase price paid by Fuller to Neel in 1958 was subsequently distributed to the parties in the receivership proceeding with the approval of the court, but that cannot be considered as a confirmation of the sale to Fuller. The details of the transaction were not presented to the court, and no express confirmation of those details and the conveyance was ever made.

It may be said that the conveyance to Fuller was a pendente lite transfer, but that cannot resolve the issues between these parties. Different pendente lite transfers have different effects. If two litigants claim the ownership to a tract of land in a lawsuit, and if lis pendens has been filed, either of the litigants may freely convey to third parties, because the court has no interest in the matter except to resolve the question of ownership. If the grantor in a deed to a third party ultimately loses the lawsuit, the grantee enjoys nothing more than whatever claim of damages he may have against his grantor. It would be incorrect to say that the deed was void. Rosborough v. Cook, 108 Tex. 364, 194 S.W. 131 (1917); Smith v. Olsen, 92 Tex. 181, 46 S.W. 631 (1898); Wortham v. Boyd, 66 Tex. 401, 1 S.W. 109 (1886). When property is placed in receivership, however, the court is concerned with more than the ownership of that property on the date of the commencement of the litigation. The court ordinarily assumes responsibility for the conservation and management of the property. Any conveyance without approval of the court has no effect upon the receivership and the accomplishment of those purposes.

Because of the 1958 royalty deed, payments from production have been made directly to Fuller in the amount of $3,547.11; and we are told that an additional sum has accrued since the payments were suspended as the result of this litigation. Under the holding of the Court of Civil Appeals this money would pass out of the receivership unscrutinized by the court. This is the type of interference that the doctrine of custodia legis was intended to prevent.

It does not necessarily follow that Fuller has obtained no rights against the grantors in the 1948 trust deed and those under whom they claim. To the extent that his claim does not interfere with the accomplishment of the purposes of the receivership or unduly complicate that proceeding, he should be entitled to step into the shoes of those who conveyed that right to him. See, Lauraine v. Masterson, 193 S.W. 708 (Tex.Civ.App.1917, writ ref’d); 2 Clark on Receivers (3rd ed. 1959) Sec. 488; 49 Tex. Jur.2d Receivers, Sec. 11.

Fuller alleged in his answer that he is a party to the receivership proceeding. The receivership court will take into consideration the rights of the parties, the avoidance of unnecessary further litigation, and justice to all. If the purposes of the receivership have been fully accomplished, and if its termination and the distribution of assets is all that remains to be done, that court may order the distribution of this particular royalty interest to Fuller. It will, of course, apply the money received from the royalty payments to meet first a proper share of the costs of the receivership and of this litigation.

Accordingly, the judgment of the Court of Civil Appeals is reversed. The judgment of the trial court is affirmed with the following modification: The royalty deed dated December 5, 1958, executed by T. H. Neel as grantor to W. L. Fuller and recorded in Volume 209 at page 282 of the Ward County Deed Records, is declared to have no force and effect insofar as said instrument purports to limit or interfere with the exclusive rights of plaintiffs, acting under control of the court, to the possession, control and sale of the oil, gas and mineral interests purportedly conveyed by said deed, and the court in Cause No. 6084 is entitled to distribute the royalty or proceeds of a sale of the royalty interest in accordance with this opinion. No determination is made hereby as to the individual rights of the parties to the receivership, Cause No. 6084.


author: POPE, Justice.

text:
    NOBILITY HOMES OF TEXAS, INC., Petitioner, v. John W. SHIVERS et al., Respondents.
    No. B-6274.
    Supreme Court of Texas.
    Oct. 5, 1977.
    Deison, Crews, Field & Boyd, James W. Stele and Charles W. Boyd, Conroe, for petitioner.
    J. Robert Liles, Conroe, for respondents.
   POPE, Justice.

This is a products liability case. It presents the question of whether a remote manufacturer is liable for the economic loss his product causes a consumer with whom the manufacturer is not in privity. John Shivers sued Nobility Homes of Texas, Inc., the manufacturer of a mobile home. Shivers purchased the home from Marvin Hurley, an independent retail dealer who is now out of business and is not joined as a party to this suit. Shivers’s purchase contract was only with Hurley; Shivers was not in privity with Nobility Homes. The trial court, sitting without a jury, found that the mobile home was defective in both its workmanship and materials. There were no findings that these defects made the unit unreasonably dangerous or caused physical harm to Shivers or his property. The trial court did find that the mobile home was negligently constructed and not fit for the purposes for which it was sold. The trial court also found the unit’s reasonable market value to be 8,750 dollars less than its purchase price. This is Shivers’s economic loss; it is the only damage which Shivers suffered. The trial court awarded judgment to Shivers. The court of civil appeals, with a divided court, affirmed that judgment. 539 S.W.2d 190. We affirm the judgments of the courts below.

The court of civil appeals allowed Shivers to recover his economic loss against Nobility Homes, a manufacturer with whom Shivers was not in privity. The primary basis of the court of civil appeals decision was “an implied warranty of reasonable fitness of a product as a matter of public policy.” 539 S.W.2d at 194. The court of civil appeals explained, “This concept is not adverse to the jurisprudence of this state. The principle was applied over three decades ago with respect to contaminated foods . . . ” in Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828 (1942). We do not believe that Decker is authority for allowing the recovery of economic loss. At the time of Decker's writing, the consumer had little remedy for losses caused by defective products. To compensate for this lack of remedy, Decker created “an implied warranty imposed by operation of law as a matter of public policy.” 164 S.W.2d at 829. This remedy has been described as, “a freak hybrid born of the illicit intercourse of tort and contract.” Prosser, The Assault Upon the Citadel, 69 Yale L.J. 1099, 1126 (1960). The protection of Texas consumers no longer requires the utilization of an “implied warranty as a matter of public policy.” Since the Decker decision, Texas has adopted section 402A of the Restatement (Second) of Torts and the Uniform Commercial Code. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967); Tex.Bus. & Comm.Code Ann. §§ 1.101-9.507 (1968). These adoptions furnish the user of defective products remedies which were unavailable at the time of Decker’s writing. Today, section 402A of the Restatement (Second) of Torts and the Uniform Commercial Code rather than Decker’s “implied warranty as a matter of public policy” should determine a manufacturer’s liability.

The important issues in this case are whether section 402A of the Restatement (Second) of Torts or the implied warranties of the Uniform Commercial Code allow a consumer to recover his economic loss against a manufacturer with whom the consumer is not in privity. We hold that Shivers may not recover his economic loss under section 402A of the Restatement (Second) of Torts but may recover such loss under the implied warranties of the Uniform Commercial Code and the theory of common law negligence. Although the court of civil appeals did not discuss negligence, it was an independent basis of the trial court’s judgment in favor of Shivers which the court of civil appeals affirmed.

Strict Liability Issue

The application of the tort doctrine of strict liability to economic loss has prompted considerable commentary. Courts of other jurisdictions are split on whether to extend strict liability to economic loss. The two leading judicial opinions are probably Santor v. A. and M. Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965) and Seely v. White Motor Co., 63 Cal .2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965). In Santor, the New Jersey Supreme Court held the purchaser of defective carpeting could sue the manufacturer, with whom he was not in privity, on either a breach of implied warranty of reasonable fitness or strict liability. In Seely v. White Motor Co., supra, the California Supreme Court rejected San-tor’s holding. The California court held that White Motor Co. breached an express warranty to Seely but condemned Santor’s application of strict liability to economic loss. Writing for the California Supreme Court in Seely, Chief Justice Traynor stated:

The distinction that the law has drawn between tort recovery for physical injuries and warranty recovery for economic loss is not arbitrary and does not rest on the “luck” of one plaintiff in having an accident causing physical injury. The distinction rests, rather, on an understanding of the nature of the responsibility a manufacturer must undertake in distributing his products. He can appropriately be held liable for physical injuries caused by defects by requiring his goods to match a standard of safety defined in terms of conditions that create unreasonable risks of harm. He cannot be held for the level of performance of his products in the consumer’s business unless he agrees that the product was designed to meet the consumer’s demands. 45 Cal. Rptr. at 23, 403 P.2d at 151.

Texas courts of civil appeals have consistently preferred the result in Seely and have held that strict liability does not apply to economic losses. A strict liability action in Texas is based upon section 402A of the Restatement (Second) of Torts. McKisson, supra. Section 402A requires that the defective product be, “unreasonably dangerous to the user or consumer or to his property . . . ” and that the product cause, “physical harm to the ultimate user or consumer, or to his property . . ..” The courts of civil appeals have correctly reasoned that economic loss is not “physical harm” to the user or his property. As stated in Melody Home Manufacturing Co. v. Morrison, 455 S.W.2d 825 (Tex.Civ.App. 1970, no writ): “There is a distinction between physical harm, or damage, to property and commercial loss.” We agree and hold that strict liability does not apply to economic losses. There is no finding in this case that the product was unreasonably dangerous to Shivers or caused physical harm to Shivers or his property.

Uniform Commercial Code Issues

Chief Justice Traynor stated in Seely that:

The law of sales has been carefully articulated to govern the economic relations between suppliers and consumers of goods. The history of the doctrine of strict liability in tort indicates that it was designed, not to undermine the warranty provisions of the sales act or of the Uniform Commercial Code but, rather, to govern the distinct problem of physical injuries. 45 Cal.Rptr. at 21, 403 P.2d at 149.

In writing about claims for economic loss, Dean Keeton has explained:

Jurisprudentially, it is difficult to understand how the Code can be ignored in dealing with such claims. Those who drafted the Code doubtless contemplated that the obligations imposed by law for commercial losses, without respect to fault, were exclusively contained in the Code.” Keeton, Torts, 1971 Survey of Tex. Law, 25 Sw.L.J. 1 (1971).

The Code was drafted specifically to govern commercial losses and obviously provides the proper remedies to recover such losses.

To support a recovery for economic loss, the Uniform Commercial Code provides both express and implied warranties. Neither the Code’s express warranty, Tex.Bus. & Comm.Code Ann. § 2.313 (1967), nor the Texas Deceptive Trade Practices Consumer Protection Act, Tex.Bus. & Comm.Code Ann. § 17.41 to .63 (Supp.1976-1977), are before us; consequently, these remedies are not affected by this decision. The Code also provides two implied warranties — the warranty of merchantability, section 2.314, and the warranty of fitness, section 2.315. Section 2.314’s warranty of merchantability is before us. Section 2.314 explains that a seller impliedly warrants that goods are merchantable, and that goods are merchantable if they are, “fit for the ordinary purposes for which such goods are used ..” Tex.Bus. & Comm.Code Ann. § 2.314(b)(3) (1967). Under the terms of the Code, a manufacturer may also be a seller. The Code does not limit its definition of seller to the immediate seller of a product. Instead, the Code defines a seller as “a person who sells or contracts to sell goods.” Tex.Bus. & Comm.Code Ann. § 2.103(4). Nobility Homes “sells or contracts to sell goods”; consequently, Nobility Homes is a seller under the Code.

Plaintiff Shivers pleaded and the trial court found that Nobility Homes breached its warranty of merchantability to Shivers by manufacturing a product which, “was unfit for the purpose for which it was purchased, to-wit, a home.” Without discussion, the court of civil appeals affirmed this holding. A critical question in this case is whether Nobility Homes’ implied warranty of merchantability runs to Shivers with whom Nobility Homes is not in privity. We now hold that a manufacturer can be responsible, without regard to privity, for the economic loss which results from his breach of the Uniform Commercial Code’s implied warranty of merchantability.

The Uniform Commercial Code as enacted by the Texas Legislature is neutral as to the requirement of privity. This neutrality is expressed in the Code’s statement that:

This chapter does not provide whether anyone other than a buyer may take advantage of an express or implied warranty of quality made to the buyer or whether the buyer or anyone entitled to take advantage of a warranty made to the buyer may sue a third party other than the immediate seller for deficiencies in the quality of the goods. These matters are left to the courts for their determination. Tex.Bus. & Comm.Code Ann. § 2.318 (1968).

For the most part, the requirement of privity has been abolished in strict liability tort actions. See, Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791 (1966). There is a split among both Texas courts and courts of other jurisdictions as to whether privity should also be abolished in implied warranty actions for economic loss. In holding that the requirement of privity should be abolished in such actions, the Alaska Supreme Court explained that it is unfair to allow a consumer to recover for his physical loss against a manufacturer with whom he is not in privity but to deny the same right to a consumer who suffers economic injury. Morrow v. New Moon Homes, Inc., 548 P.2d 279 (Alas.1976). We agree. The fact that a product injures a consumer economically and not physically should not bar the consumer’s’ recovery. Economic loss can certainly be as disastrous as physical injury. As Justice Peter’s separate opinion in Seely pointed out, economic loss as well as personal injury can constitute the “overwhelming misfortune” in one’s life which merits redress. Today, a consumer, without regard to privity, can recover against a manufacturer whose defective product causes the consumer to suffer the slightest physical injury. It would be inconsistent to demand privity as a prerequisite to the same consumer’s recovery against a manufacturer whose defective product causes the consumer to lose his entire life savings. Consequently, we hold that privity is not a requirement for a Uniform Commercial Code implied warranty action for economic loss. To hold otherwise, would encourage manufacturers to use thinly capitalized “collapsible corporations” to sell their commercially inferior products leaving no one for the buyer to sue for his economic loss. See, Roberts, The Case of the Unwary Home Buyer: The Housing Merchant Did It, 52 Cornell L.Rev. 835, 836 (1967). Further, by holding that implied warranty remedies apply to economic injuries, we are consistent with, “the well developed notion that the law of contract should control actions for purely economic losses and that the law of tort should control actions for personal injuries.” Comment, The Vexing Problem of Purely Economic Loss in Products Liability: An Injury in Search of a Remedy, 4 Seton Hall L.Rev. 145, 175 (1972).

Courts which have declined to overturn the privity requirement in warranty actions for economic loss have reasoned that economic loss is more subjective and less predictable than physical loss. These courts fear that holding manufacturers liable for economic loss imposes unlimited and unforeseeable liability upon manufacturers. These fears are justified when manufacturers are held strictly liable for economic loss under the terms of section 402A of the Restatement (Second) of Torts. But, these fears are not justified when manufacturers are held liable by the Uniform Commercial Code because the Code, itself, protects manufacturers against unlimited and unforeseeable liability. First, the Uniform Commercial Code allows manufacturers to restrict their liability by the exclusion or modification of both implied and express warranties. Tex.Bus. & Comm.Code Ann. § 2.316 (1967). Second, manufacturers’ liability is restricted by the very terms of the Uniform Commercial Code sections which furnish the consumer’s implied warranty remedies, sections 2.314 and 2.315.

Section 2.314 provides an implied warranty that the goods are merchantable but only “if the seller is a merchant with respect to goods of that kind.” Tex.Bus. & Comm. Code Ann. § 2.314(a). Section 2.314 also states that merchantable goods, “are fit for the ordinary purposes for which such goods are used . ..” Tex.Bus. & Comm. Code Ann. § 2.314(b)(3). The manufacturer has liability, under section 2.314, only if the consumer uses the goods for an ordinary purpose, ff the goods are employed for a purpose other than “the ordinary purposes for which such goods are used,” the manufacturer is not liable.

Section 2.315 furnishes the consumer his second implied warranty protection. The section provides an implied warranty of fitness for a particular purpose. Tex.Bus. & Comm.Code Ann. § 2.315 (1968). This implied warranty only arises where, “the seller at the time of contracting has reason to know any particular use for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods . . Unless the manufacturer has this specific knowledge, he is not liable upon an implied warranty of fitness for a particular purpose. The Uniform Commercial Code provisions provide a predictable definition of a manufacturer’s potential liability. These provisions adequately protect a manufacturer against unlimited and unforeseeable liability.

Many manufacturers have, in fact, always paid for the consumer’s economic loss. As the New York Court of Appeals stated in Randy Knitwear, Inc. v. American Cyanamid Co., 11 N.Y.2d 5, 226 N.Y.S.2d 363, 181 N.E.2d 399 (1962):

It is true that in many cases the manufacturer will ultimately be held accountable for the falsity of his representations, but only after an unduly wasteful process of litigation. Thus, if the consumer or ultimate business user sues and recovers, for breach of warranty, from his immediate seller and if the latter in turn, sues and recovers against his supplier in re-coupment of his damages and costs, eventually, after several separate actions by those in the chain of distribution, the manufacturer may finally be obliged “to shoulder the responsibility which should have been his in the first instance.”

Dean Prosser explains that this chain of actions is “an expensive, time-consuming and wasteful process, and it may be interrupted by insolvency, lack of jurisdiction, disclaimers, or statutes of limitations.” Prosser, The Assault Upon the Citadel, 69 Yale L.J. 1099, 1124 (1960). Our holding avoids such wasteful litigation.

The Negligence Issue

Consumers have other remedies for economic loss against persons with whom they are not in privity. One of these remedies is a cause in negligence.

Shivers alleged negligence against the manufacturer Nobility. He asserted that Nobility was negligent in: improperly designing the frame; improperly constructing the frame, roof, paneling, bathroom fixtures, and water system; and in failing to inspect the home prior to the sale. The trial judge made findings that Nobility’s negligence was a proximate cause of Shivers’s damages. Nobility attacked those findings in the court of civil appeals, asserting that there was no evidence or insufficient evidence to support the findings. The court of civil appeals overruled each of those points, holding that there was some evidence to support the findings. Nobility does not challenge this separate and independent ground of recovery; consequently, we must also affirm the judgment for Shivers on the negligence point. See State Farm Mutual Automobile Ins. Co. v. Cowley, 468 S.W.2d 353, 354 (Tex.1971); City of Deer Park v. State, 275 S.W.2d 77, 84, 85 (Tex.1955).

The judgments of the courts below are affirmed.

      . Economic loss may be either direct or consequential. The distinction between direct and consequential economic loss has been summarized as follows:
      Direct economic loss may be said to encompass damage based on insufficient product value; thus, direct economic loss may be “out of pocket” — the difference in value between what is given and received — or “loss of bargain” — the difference between the value of what is received and its value as represented. Direct economic loss also may be measured by costs of replacement and repair. Consequential economic loss includes all indirect loss, such as loss of profits resulting from inability to make use of the defective product.
      Note, Economic Loss in Products Liability Jurisprudence, 66 Colum.L.Rev. 917, 918 (1966).

      . Sales, Perdue, Strict Liability in Texas, 14 Houst.L.Rev. 1, 144 (1977); Speidel, Products Liability, Economic Loss and the UCC, 40 Tenn.L.Rev. 309 (1973); Keeton, Torts, 1971 Survey of Tex.Law, 25 Sw.L.J. 1 (1971); Comment, Products Liability in Commercial Transactions, 60 Minn.L.Rev. 1061 (1976); Comment, Implied Warranties and “Economic Loss,” 24 Baylor L.Rev. 370 (1972); Comment, The Vexing Problem of Purely Economic Loss in Products Liability: An Injury in Search of a Remedy, 4 Seton Hall L.Rev. 145 (1972); 16 A.L.R.3d 683 (1967); Note, Economic Loss in Products Liability Jurisprudence, 66 Colum.L. Rev. 917 (1966); Comment, Manufacturers’ Liability to Remote Purchasers for “Economic Loss” Damages — Tort or Contract?, 114 U.Pa. L.Rev. 539 (1966).

      . Apart from our own Texas decisions, cases which refuse to extend strict liability’s coverage to economic loss include: Fredonia Broadcasting Corp. v. RCA Corp., 481 F.2d 781 (5th Cir. 1973); Southwest Forest Indus., Inc. v. Westinghouse Elec. Corp., 422 F.2d 1013, 1020 (9th Cir.), cert. denied, 400 U.S. 902, 91 S.Ct. 138, 27 L.Ed.2d 138 (1970); Cloer v. General Motors Corporation, 395 F.Supp. 1070, 1071—1072 (E.D.Tex.1975); Noel Transfer & Pkg. Delivery Serv., Inc. v. General Motors Corp., 341 F.Supp. 968, 970 (D.Minn.1972); Morrow v. New Moon Homes, Inc., 548 P.2d 279 (Alas.1976); Hiigel v. General Motors Corporation, 544 P.2d 983 (Colo.1975); Avenell v. Westinghouse Electric Corp., 41 Ohio App.2d 150, 324 N.E.2d 583 (1974); Hawkins Construction Co. v. Matthews, Inc., 190 Neb. 546, 209 N.W.2d 643, 653 (1973); Beauchamp v. Wilson, 21 Ariz.App. 14, 515 P.2d 41, 44 (1971); Price v. Gatlin, 241 Or. 315, 405 P.2d 502, 503 (1965); Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965).
      Cases which have extended strict liability’s coverage to economic loss include: Air Products & Chem., Inc. v. Fairbanks Morse, Inc., 58 Wis.2d 193, 206 N.W.2d 114 (1973); Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968); Cova v. Harley Davidson Motor Co., 26 Mich.App. 602, 182 N.W.2d 800 (1970); Santor v. A. and M. Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965).

        .Emmons v. Durable Mobile Homes, 521 S.W.2d 153 (Tex.Civ.App.1974, no writ); Pioneer Hi-Bred Intern, Inc. v. Talley, 493 S.W.2d 602 (Tex.Civ.App.1973, no writ); Eli Lilly & Co. v. Casey, 472 S.W.2d 598 (Tex.Civ.App.1971, no writ); Thermal Supply of Texas, Inc. v. Asel, 468 S.W.2d 927 (Tex.Civ.App.1971, no writ); Melody Home Manufacturing Co. v. Morrison, 455 S.W.2d 825 (Tex.Civ.App. 1970, no writ).

      . In its entirety section 402A of the Restatement (Second) of Torts states:
      (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
      (a) the seller is engaged in the business of selling such a product, and
      (b)-it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought ■ the product from or entered into any contractual relation with the seller.

      . Texas courts of civil appeals decisions requiring privity in implied warranty actions are Foremost Mobile Homes Mfg. Corp. v. Steele, 506 S.W.2d 646 (Tex.Civ.App.1974, no writ); Eli Lilly & Co. v. Casey, supra, and Thermal Supply of Texas, Inc. v. Asel, supra. The one court of civil appeals decision which has not required privity in such an action is Ford Motor Co. v. Lemieux Co., 418 S.W.2d 909 (Tex.Civ.App.1967, no writ).
      Foreign cases retaining the privity requirement in implied warranty actions for economic loss include: Koellmer v. Chrysler Motors Corp., 6 Conn.Cir. 478, 276 A.2d 807 (1970); General Motors Corp. v. Halco Instruments, Inc., 124 Ga.App. 630, 185 S.E.2d 619 (1971); Necktas v. General Motors Corp., 357 Mass. 546, 259 N.E.2d 234 (1970); Hupp Corp. v. Metered Washer Service, 256 Or. 245, 472 P.2d 816 (1970); State ex rel. Western Seed Prod. Corp. v. Campbell, 250 Or. 262, 442 P.2d 215 (1968); Price v. Gatlin, supra; Henry v. John W. Eshelman & Sons, 99 R.I. 518, 209 A.2d 46 (1965); Dimoff v. Ernie Majer, Inc., 55 Wash.2d 385, 347 P.2d 1056 (1960).
      Foreign cases no longer demanding privity as a prerequisite to the recovery of economic losses in implied warranty actions include: Lynne Carol Fashions, Inc. v. Cranston Print Works Co., 453 F.2d 1177 (3d Cir.1972) (stating Pennsylvania law); Morrow v. New Moon Homes, Inc., supra; Gherna v. Ford Motor Co., 246 Cal.App.2d 639, 55 Cal.Rptr. 94 (1966); Manheim v. Ford Motor Co., 201 So.2d 440 (Fla.1967); Rhodes Pharmacal Co. v. Continental Can Co., 72 Ill.App.2d 362, 219 N.E.2d 726 (1966); State Farm Mut. Auto. Ins. Co. v. Anderson-Weber, Inc., 252 Iowa 1289, 110 N.W.2d 449 (1961); Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873 (1958); Beck v. Spindier, 256 Minn. 543, 99 N.W.2d 670 (1959); Santor v. A. & M. Karagheusian, Inc., supra; Lang v. General Motors Corp., 136 N.W.2d 805 (N.D.1965); Kassab v. Central Soya, supra.

      . Section 2.316 does not give the seller unbridled power to exclude warranties. As to the exclusion of express warranties, section 2.316(a) states:
      (a) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this chapter on parol or extrinsic evidence (Section 2.202) negation or limitation is inoperative to the extent that such construction is unreasonable.
      As to the exclusion of implied warranties, section 2.316(b) states:
      (b) Subject to Subsection (c), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied war-ratifies of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.”
      (c)Notwithstanding Subsection (b)
      (1) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is”, “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and
      (2) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and
      (3) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.


author: BROWN, Commissioner. ONION, Presiding Judge.

text:
    Gary PRASKA, Appellant, v. The STATE of Texas, Appellee.
    No. 52994.
    Court of Criminal Appeals of Texas.
    July 6, 1977.
    Appellant’s Motion for Rehearing Denied Oct. 19, 1977.
    Appellant’s Second Motion for Rehearing Denied Nov. 9, 1977.

      Stayton, Maloney, Hearne & Babb, Austin, for appellant.
    Robert 0. Smith, Dist. Atty., and Richard E. Banks, Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for possession of hashish. Appellant was tried before the court which assessed punishment at three years in the Texas Department of Corrections. Imposition of sentence was suspended and appellant was placed on probation.

In his sole ground of error appellant contends that the trial court erred in admitting into evidence the contraband seized from appellant’s automobile because the evidence was the product of an illegal search and seizure.

At the hearing on appellant’s motion to suppress Officer William Alexander of the Austin Police Department testified that he was driving west on Seventh Street in Austin at approximately 2:00 a. m. on November 30, 1974, when he observed appellant’s vehicle facing north in the 700 block of the east frontage road of Interstate 35. The officer said that appellant’s vehicle was either stopped or slightly moving and then turned left into the parking lot bordering the frontage road. The officer stated that he also pulled into the parking lot to stop appellant’s vehicle because he believed that he had committed a traffic violation, specifically, failure to signal intent to make a left turn. The officer stated that the vehicle was equipped with signal lights and he did not see the lights blinking when appellant turned. However, he also stated that he could not testify that appellant failed to use a hand signal before making the left turn. The officer testified that he issued appellant a citation for failure to make a left turn signal. The citation was introduced into evidence and is part of the record now before this Court.

Officer Alexander further stated that he spoke with appellant and the passenger in the car while he stood at the driver’s window. He stated that he asked appellant “what the problem was” and “why they changed their position in the middle of 7th and the east frontage and turned into a public parking area at 2:00 in the morning.” He further stated that the appellant and his passenger acted confused or lost and he did not get an answer as to what the problem was. He also said he saw that both occupants of the ear were leaning forward and that the passenger indicated with a motion of his arm that his attention was centered around something on the floor area. The officer said he then ordered the pair to put their hands on the dashboard where he could see them.

The officer testified that he then opened the driver’s door of the vehicle and asked appellant to step out and at this time he said he detected the odor of marihuana. He said that he frisked appellant for weapons and that a fellow officer was present on the passenger side of the vehicle frisking the occupant of the car. Officer Alexander said that he then searched appellant’s car and found a tin containing the contraband on the front floor of the car.

The disposition of this case turns on a single issue: Was Officer Alexander justified in stopping appellant?

Relying on Willett v. State, 454 S.W.2d 398 (Tex.Cr.App.1970) and Hall v. State, 488 S.W.2d 788 (Tex.Cr.App.1973) appellant contends that the officer was not justified. Both of those cases involved the introduction into evidence of contraband seized as a result of a traffic stop and in both cases the alleged justification for the traffic stop was a failure to signal before making a turn, in violation of Article 6701d, Sec. 68(a), Vernon’s Ann.C.S.

Section 68(a) in effect at the time of both Hall and Willett provided that:

“(a) No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in Section 65, or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement." (Emphasis added).

In both Hall and Willett the testimony of the arresting officers was to the effect that no other traffic was affected by the defendants’ failure to signal their intention to turn. Therefore, we held in each case that the officer was not justified in stopping the defendants because no offense had been committed.

Section 68(a) has subsequently been amended and the provision in effect at the time of appellant’s arrest provides that:

“(a) No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in Section 65, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with safety. Except under conditions set out in Section 24(a) no person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided.”

Both signal lights and hand and arm signals are appropriate signals under the provisions of Section 69, but contrary to the old provision, supra, one or the other signal is required regardless of other traffic. See Beck v. State, 547 S.W.2d 266 (Tex.Cr.App. decided July 7, 1976).

It is appellant’s contention that because Officer Alexander could not testify that appellant failed to use a hand signal “the officer observed no violation” of Section 68(a) and, therefore, the traffic stop was not justified and the subsequent search was illegal under the rationale of Willett. We cannot agree.

From Officer Alexander’s vantage point on Seventh Street at 2:00 a. m. he observed a vehicle turn left without any visible signal. He saw what appeared to him to be a violation of Section 68(a). He issued a traffic citation charging appellant with that offense. The fact that appellant may have used a hand signal which Officer Alexander could not see from his vantage point is certainly a defense to the charge that he committed the traffic offense, but it just as certainly would not negate the officer’s justification for stopping appellant’s vehicle in the first place.

The principle of Willett and Hall remains viable. In both cases the officers’ own testimony that there was no traffic affected by the defendants’ failure to signal established that the officers had observed no offense under the old Section 68(a). In the instant case the officer’s testimony establishes that he observed activity which constituted probable cause that an offense had been committed under the new Section 68(a). The existence of such probable cause authorized Officer Alexander to stop appellant. Soileau v. State, 156 Tex.Cr.R. 544, 244 S.W.2d 224 (1952).

The instant case is likewise distinguishable from our recent decision in Hooper v. State, 533 S.W.2d 762 (Tex.Cr.App.1976). We reversed a conviction for possession of obscene material with intent to distribute because the only evidence justifying the stop of the truck in which the material was found was the hearsay statement that the truck had defective brake lights. The arresting officer did not testify.

We find that Officer Alexander was justified in stopping appellant’s vehicle. He was, therefore, legitimately in a position to observe the facts and circumstances authorizing the search which led to the discovery of the contraband, and, indeed, appellant does not question his authority for the search. See Duff v. State, 546 S.W.2d 283 (Tex.Cr.App.1977).

Appellant’s ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

ODOM, J., dissents.

OPINION ON APPELLANT’S MOTION FOR REHEARING

ONION, Presiding Judge.

On original submission appellant’s sole contention was that the court erred in admitting into evidence the contraband seized from his automobile because of an illegal search and seizure.

Austin Police Officer Alexander testified that at 2 a. m. on November 30, 1974 he stopped appellant’s automobile for failure to signal intent to make a left turn from a public road into a parking lot. Alexander stated appellant’s vehicle was equipped with signal lights and he did not see the lights blinking when appellant turned. He could not testify that appellant failed to use a hand signal before making the turn.

The opinion on original submission stated:

“From Officer Alexander’s vantage point on Seventh Street at 2:00 a. m. he observed a vehicle turn left without any visible signal. He saw what appeared to him to be a violation of Section 68(a). He issued a traffic citation charging appellant with that offense. The fact that appellant may have used a hand signal which Officer Alexander could not see from his vantage point is certainly a defense to the charge that he committed the traffic offense, but it just as certainly would not negate the officer’s justification for stopping appellant’s vehicle in the first place.”

On rehearing appellant argues there can be no justification'for the stop if the officer did not observe all of the facts necessary to a traffic violation, and he did not see a violation because he could not ascertain whether appellant gave a hand signal.

He further maintains that the fact that a hand signal was given is not a defensive matter as stated in the opinion on original submission but rather it is the State’s burden to plead and prove that no type of appropriate turn signal was used in order to show the offense in question.

It is true that the State cannot prove a “no turn signal” case without proving that no appropriate signal was given. The giving or not of a hand signal is not fundamentally a defensive issue, and the language in the opinion on original submission may therefore be somewhat misleading, but it should be borne in mind this is a prosecution for possession of hashish and not a prosecution on a “no turn signal” case. The sole question is whether the officer had probable cause to stop the vehicle.

In Drago v. State, 553 S.W.2d 375, 377 (Tex.Cr.App.1977), it was stated:

“Appellant’s second ground of error contends that an offense was not shown to have been committed in the officers’ presence and, therefore, the stopping of appellant was unlawful and the evidence seized thereafter illegally acquired. As stated above, proof of the actual commission of the offense is not a requisite. The facts above set out were sufficient observable facts by the officers to reasonably justify said belief and, thus, afford them probable cause for the stopping of appellant. * * * The primary purpose of the Exclusionary Rule is to deter police activity which could not have been reasonably believed to be lawful by the officers committing same. United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975). ...” See also Soileau v. State, 156 Tex.Cr.R. 544, 244 S.W.2d 224 (1951).

It is significant that the record in the instant case reflects the following testimony by Officer Evans:

“Q In your own mind did you believe that the defendant had committed a traffic violation?
“A Yes, sir, that’s why I went after him.
“Q That’s why you pulled the car over?
“A Yes.”

The facts in the instant case were sufficient observable facts by Officer Evans to reasonably justify said belief and thus afford him probable cause for the stopping of appellant.

Appellant’s motion for rehearing is overruled.