ON MOTIONS FOR REHEARING
Ford Motor Company, appellant, and Russell & Smith Ford Company, appellee, have each filed motions for rehearing in this cause. As a result thereof we have again reviewed the record.
Relative to Russell & Smith’s motion, we stated in the original opinion that “Russell & Smith failed to warn LaRocca of the dangers and defects involved though the facts were at hand, and the dealer was negligent toward LaRocca.” Later in the original opinion we stated that “Russell & Smith failed properly and timely to warn LaRocca and such failure was a proximate cause of LaRocca’s injuries based upon admissions and the uncontradicted evidence.” By assignments of error numbers 7-18 Russell & Smith has challenged such statements above as being error, and after further consideration we agree.
While Russell admitted that no warning of the dangers and defects to his knowledge was given to LaRocca at the time of or subsequent to the sale of the Econoline van, and LaRocca testified that no warning was given, we do not believe that we can correctly say that such failure was a proximate cause of the resulting injuries to LaRocca as a matter of law under all the circumstances.
Contributory negligence must be pleaded by the defendant in this indemnity action if it is relied upon. On reconsideration, we find no such pleadings. Rule 94, T.R.C.P.; 2 McDonald, Texas Civil Practice, Sec. 7.36.2, p. 256 (1970 Rev.Vol.). Appellee was given no notice that the above matter would be relied upon by Ford, and no special issues were submitted thereon. While there is respectable authority holding that in an action for personal injuries allegedly caused by the negligence of a defendant (cross-defendant here) where plaintiff’s (Russell & Smith’s) own case necessarily puts in issue all the facts relied upon by defendant to show plaintiff’s contributory negligence, and the burden of proof is on the plaintiff to acquit himself of fault, and in such case no plea of contributory negligence is necessary on the part of a defendant [See Murray v. Gulf, C. & S. F. Ry. Co., 73 Tex. 2, 11 S.W. 125 (1889); T. & P. R. W. Co. v. Murphy, 46 Tex. 356, 363 (Tex.Sup.1876, per Roberts, C. J.); 2 McDonald, Texas Civil Practice, Sec. 7.36.1 (1970 Rev.Vol.); and other authorities applying the rule], we hold that such rule is not here applicable when such evidence is not wholly undisputed and admitted or proven by Russell & Smith, cross-plaintiff. Russell & Smith’s assignments of error above are sustained so far as they pertain to the matters in the opinion which are herein discussed. We withdraw our statements and holding as mentioned above, but we adhere to our original opinion in all other respects.
We reaffirm our views and our holding that since no optional equipment such as air conditioning was ever authorized for the Econoline commercial van, Russell & Smith installed or had installed the air conditioner on LaRocca’s van strictly on its own volition and on its own responsibility, without any authority whatsoever from Ford Motor Company, and that Russell & Smith, as a matter of law, had sufficient knowledge of the facts and the consequences thereof at the time of installation to become a tortfeasor who breached a duty, or a duty to exercise ordinary care, to Ford as Ford’s authorized dealer. Also, *563under the supported fact findings, Ford breached a duty to Russell & Smith. And as we have stated, the acts concurred to cause LaRocca’s injuries.
The matter of warning and proximate cause discussed above being unnecessary to our decision in this case, all motions for rehearing are respectfully overruled.