(dissenting).
I respectfully dissent.
While the Court recognizes that Puskar in this suit seeks recovery against Roach, the dealer, and Ford, the manufacturer, on grounds of breach of warranty and negligent misrepresentation, it has failed to properly interpret the instruments containing the representations and to evaluate the evidence which supports the findings of the jury which fix the responsibility of Roach and Ford insofar as the representations in the “Owner’s Manual” and the representations made by Roach are concerned.
The Court not only makes the same mistake as that made by the Court of Civil Appeals, but apparently accepts the argument of Ford that the only way for Puskar to recover is to establish and secure a finding that the 1959 Thunderbird was defective at the time it left the control of the manufacturer.
This dissent takes note of the evidence relating to Puskar’s cause of action based on the ground of negligence of Roach in refusing to repair the Thunderbird only so far as such evidence is related to his major grounds for recovery, breach of warranty and negligent misrepresentation. If there is any doubt as to Puskar’s principal contentions, such doubt will disappear upon reading Puskar’s pleadings and his testimony beginning with the first pages of the statement of facts.'
Puskar recognizes that there is no proof in this record of any defect in the Thunderbird at the time it left Ford’s control. Pus-kar contends, however, that defectiveness in the design of the Thunderbird or its manufacture is not the question before the Court. I agree with Puskar’s contention that the cases relied upon by Ford do not limit the theory of false or negligent mis*271representation to defects in the design or manufacture of the Thunderbird.
In the very beginning of the trial the testimony of Puskar was introduced to show a history of Puskar’s origin, background, training and experience as a musician. The testimony in regard to the Thunderbird begins immediately thereafter. In April, 1959, a friend was responsible for his meeting with a Roach representative. The evidence shows that Puskar purchased the 1959 Thunderbird on May 2, 1959; that Don Ferguson was the salesman for Roach who handled the sale. Puskar, in his testimony, presented the primary basis for his cause of action for damages. Early in connection with his testimony there appears in the statement of facts plaintiff’s exhibit No. 2, designated as a dealer warranty. This warranty was delivered to Puskar at the time of delivery of the Thunderbird. Pus-kar’s attorney immediately read to the jury a part of the dealer’s warranty, which reads:
“The dealer warrants to the purchaser, except as hereinafter provided, that each part of each Ford Motor Company product sold by dealer to purchaser, to be free, under normal use and service, from defect in materials and workmanship, for a period of 90 days from the date of delivery of such product to purchaser or until such product has been driven, used, or operated for a distance of 4,000 miles, whichever event shall first occur.”
Immediately thereafter, Puskar introduced exhibit No. 3, the “Owner’s Manual”, and read to the jury a part thereof beginning at page 26 (of the manual) as follows:
“Master guide power steering. Up to 75% of the effort needed to steer your Thunderbird is. taken over by master guide power steering, yet this optional hydraulically operated steering allows you to retain the natural feel of the steering wheel, but particularly when you are driving your car along the open highway. Master guide power steering provides a power assist only when your Thunderbird’s engine is running; However, even if your engine is stopped or if the power system should not he operating normally, you will have safe steering and sure control of your car with conventional steering. [Emphasis added.] “Swift sure power brakes. The low level bevel of the optional vacuum operated swift sure power brake system will operate with approximately one-third less pressure than the conventional brake pedal for most normal stops. If for any reason swift sure power brakes should completely lose their brake assisting power, your Thunderbird’s conventional hydraulic brake system will remain fully effective, and it will take over to permit you to stop the car safely when you push down on the brake pedal.” [Emphasis added.]
Puskar gave the same testimony as to the dealer’s warranty.
To recite all of the evidence bearing on the question which the jury was allowed to hear would unduly lengthen this dissent. However, some of the evidence will be set out to demonstrate misrepresentations in the “Owner’s Manual” were emphasized by the representatives of Roach both before and after the sale of the Thunderbird. As a consequence it was negligently represented to Puskar that when the engine of the automobile in question was stopped or if the power system should not be operating normally that he would still have safe steering and full control of the Thunderbird with its conventional steering. The representations made by the salesman were in harmony with Puskar’s interpretation of the language of the “Owner’s Manual”. Puskar relied upon all such representations not only at the time of purchase but continued to rely thereon until the time of the accident. Puskar’s testimony follows:
“When the automobile was delivered he read the Owner’s Manual and understood the instructions. He believed them. He relied upon the statements. He had no reason to disbelieve them. He also read *272over the warranty, understood it, believed it, relied upon it and had no reason to disbelieve it.
“When he first obtained the car it seemed to operate ‘fairly normal’ with a few exceptions. One thing he noticed shortly after he began to drive it was that he ‘would realize that the automobile was idling unusually’. He described this further as ‘idling kind of roughly.’ He likened it to a motor boat engine that was idling and sort of ‘rocking’. It would cause vibrations inside the car. It acted like it was ‘idle tuned’. On several occasions when he was backing from his carport to the driveway the ‘automobile stalled on me.’ This happened several times thereafter in the course of slow or congested traffic.
“He did not know what caused it, not being schooled in mechanics. The first time this happened was when he started up the car. When he would pull up to a stop sign, apply the brakes, or in idling, standing in traffic, idling, it would stop. It happened several times. On these occasions, when the motor would die, he would have no real opportunity to use the power brakes or power steering because it happened in the course of very slow driving. He had no chance to ‘test it out’. The brakes would take an extra special effort to stop the automobile on these occasions. On none of these other occasions had he had any opportunity or necessity to turn the wheel. None of these failures had occurred in an emergency.
“He called Jack Roach and talked to Ferguson, and .told him the troubles he had. Ferguson reassured him that the car was ‘operating normally’, ‘it was getting the kinks out of it so to speak, and once again, he mentioned that the Ford product was a letter perfect automobile.’ The court admitted this testimony for the limited purpose of showing why he continued to drive the vehicle in view of these
assurances, but not for the purpose of proving up an ‘oral’ warranty.
“Ferguson reassured him that the automobile was in the ‘breaking-in’ stage, and that the automobile would be handled by the Service Department at Jack Roach ‘upon proper time’. Ferguson told him that the problem was ‘just in the course of breaking in a new automobile that these things would happen; that I would have nothing to worry about.’ At this point the Court overruled an objection upon the grounds that the evidence indicated an ‘oral warranty’.
“The first conversation with Ferguson occurred approximately a week after he had purchased the automobile, possibly ten days. The stalling continued on several occasions,, and ‘it was a frustrating situation.’ He called back and talked to Ferguson a few days to a week before the accident, on May 20, May 21 or May 22. He did not have a thousand miles on the auto. He was reassured again and told to ‘write down anything that I thought was the matter with the car, and when I would take it in for my check-up, then I would present this notebook to the people in the Service Department, at which time, he told me I should talk to someone in the Service Department’. He did talk to someone in the Service Department, but he could not remember his name. It was something like the Sales Manager or someone connected with handling customers.
“The people in the Service Department were very nice and stated that T should wait until my 1000-mile check-up and I would have all these things taken care of at one time’. He continued to drive the car after this conversation. The car continued to act in approximately the same way and did not improve. It continued to die on him.
“On the 30th day of May, 1959, he made another telephone call to Jack Roach for the purpose of getting the car taken care of. It was before lunch on a Saturday, *273and he talked to someone in the Sales Department. He was ‘very displeased with the way the automobile had been handling, and * * * was hoping to have the car fixed, repaired, tuned up, or whatever it took to get it in operating condition.’ He was once again reassured that the car was acting the way any new automobile would and that, ‘I was being possibly a little presumptuous or a little nervous about driving a new car and I shouldn’t worry about it.’ ”
Puskar described the events leading to the accident as follows:
“I drove until I saw in front of me an intersection, which I have come to find out that this is the intersection of Ruark and Aleif Road. Realizing that this was an intersection, and right in front of me was a dead stop, a dead end, I started to apply my brakes, at which time I got no response, and realizing that I could not stop the automobile or handle it at that time the way I felt I should be able to handle it, I stepped on the brake and I felt as though I might be pushing against the floorboard, with no response from the brake; and still moving ahead, I started to turn the wheel. I was able to turn the wheel only slightly, and this slight turn and me not being able to stop the automobile, I headed into a small ditch and embankment with the left front side of my automobile.
“When he first applied the brakes there was practically no response. The brakes seemed a little ‘spongey, and then it was as though I was pushing against the floorboard. Nothing happened.' It did not reduce the speed. It did not cause the brakes or wheels to lock. He was only able to turn the steering wheel slightly ‘after I seemed to get out in the middle of the road.’ He then described when he was able to make a turning movement in the following manner:
“ ‘When I got the front end of the car out into the road, by just force, I guess, I was able to turn it just a little bit.’ ”
James L. Melton, a witness called by the plaintiff, Puskar, testified in substance as follows:
“He was a professor at the University of Oklahoma and a consulting engineer. He stated he was familiar with the engineering principles concerning power brakes and power steering of the 1959 Thunderbird. The power steering system is a ‘closed’ system using a separate, distinguishable reservoir in pumping the system into a second reservoir. The braking system is essentially vacuum operated and it applies assisting power. For either or both to operate properly it is necessary that the engine of the car be operating.
“Ralph [Miller — plaintiff’s attorney] posed a hypothetical question to him concerning the manner in which the accident occurred and he had an opinion as to some of the possible causes for the malfunctioning of the steering wheel and the brakes on the occasion in question. He had an opinion as to the reasonable probability as to the cause of the difficulty the plaintiff experienced. There was probably an additional input of air into the system so that you had a loss of vacuum which tends to give you a lean mixture so that a loss of power can result. He then said ‘this loss of power will further tend to aggravate the condition as far as the power brakes are concerned, since it is directly connected to the manifold through which this mixture is administered to the cylinders.’ Additionally, ‘in the loss of power, depending on the gear ration applied to the power drain, itself, the engine may or may not function. Its rotational speed might drop below the minimum necessary to produce the necessary pressure in the system to react, as far as the power steering is concerned.’
“The power brake system is tied directly to the manifold, such that if there is some failure of any type, such that we have a loss of the vacuum that is produced by the drawing of the fuel, or the air through the carburetor and mixing it *274with fuel, we do have some mixing, but in addition to that, then we get excess air in our system. He positively testified that a car with power steering and power brakes which fails will not operate as easily as a car with only conventional equipment. Then, significantly, he gave the following testimony:
‘Q. I will ask you whether or not it takes considerably more effort to put the brakes and steering into effect whenever the motor dies on a car that is equipped with a power system, than it does a car with conventional steering and conventional brakes ?
‘A. On steering, yes. Brakes, no.
He explained this as follows:
‘Since we have added additional linkages or valving and a boost cylinder (which was replaced), a cylinder that actually boosts the pressure up to move the steering linkage, itself, the steering linkage is connected directly to the power cylinder and the difference between reaction, between the non-power-assist steering and the conventional steering, is essentially that you must move the fluid back and forth in your system as well as the connecting linkage.
‘In the conventional system, you do not have this additional work to do.’
“He had conducted tests with 1959 Thun-derbirds and with other cars as well when the motor is not running with reference to the amount of pressure required to turn a steering wheel. While he did not recall the exact values he did ‘know that the normal force necessary on a conventional car is about 12 pounds at the rim of the wheel, about 7 pounds with power steering, and with the power assist steering assisting, and that it will run up, depending on the automobile itself, as much as 18 to 36 pounds, and even beyond that when the power steering is inoperative.’ ”
The evidence introduced in the trial court presents a case of joint liability against Roach and Ford. The jury absolved Pus-kar of contributory negligence. The fact that Puskar continued to operate the Thunderbird after he realized that the Thunderbird was “idling unusually”, etc. does not preclude recovery. Puskar was not required to refuse to continue to operate the Thunderbird as a condition precedent to maintaining his cause of action on the grounds of breach of warranty and negligent misrepresentation. Puskar relied on the “Owner’s Manual” and dealer’s warranty as well as the sales advertising to the public generally. Such reliance is sufficient to support a cause of action based on breach of warranty and negligent misrepresentations. See Inglis v. American Motor Company, 3 Ohio St.2d 132, 209 N.E.2d 583 (1965), Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 901 (1962); Lang v. General Motors Corporation, N.D., 136 N.W.2d 805 (1965) ; Ford Motor Company v. Lonon, 398 S.W.2d 240, 242 (Sup.Ct.Tenn. 1966).
The facts here bring this case within the rule that where a manufacturer has misrepresented the quality of his product or negligently makes misrepresentations as to his product generally, such manufacturer should be held responsible for harm resulting from a characteristic common to all such products of that kind. The evidence and jury findings also support the breach of warranty theory advanced by Puskar. It has been held that express misrepresentations are also to be regarded as express warranties. Cases in other jurisdictions where liability has been predicated on misrepresentations of facts have, in the main, been cases where there was no miscarriage in the manufacturing process, but where there was a misrepresentation in the quality of the goods the defendant was selling, even when the product turned out to be what it was intended to be. For example, see Baxter v. Ford Motor Co., 168 Wash. 456, 462, 12 P.2d 409, 15 P.2d 1118, 88 A.L.R. 521 (1932). In that case the manufacturer ad*275vertised that “shatter proof” glass was contained in its cars. The plaintiff, in reliance on this representation, bought one of the cars from a dealer. The cars did not have shatter proof glass as they were advertised to have. The court held the manufacturer liable for a misrepresentation of all cars, even though the product turned out as it was supposed to be. Liability was not placed on the manufacturer for a condition that was unintended, nor due to its negligence. In the present case, liability could be placed on the manufacturer for its misrepresentation in the quality of the steering of all Thunderbirds, even if that steering was what it was intended to be.
The rule applicable to this case is stated in Section 402B 1 of the Restatement of Torts (2d Ed.). The rule is a clear pronouncement of the present status of the law as it affects this case. This rule, if followed, would hold the manufacturer or assembler and at the same time would hold the dealer to strict liability. Under Section 402B it is unnecessary that the “misrepresentation” be made fraudulently or negligently. The type of misrepresentation contained in the “Owner’s Manual” renders not only the manufacturer or assembler liable, but extends to the dealer as well. The Court does not see fit to deal with the question of strict liability in the sense that it fails to discuss the theory of misrepresentation. The Court seems to assume that Puskar’s misrepresentation theory excludes the idea that he also sought to establish liability upon the theory of warranty in the trial court. In taking this position, the Court loses sight of one other significant aspect of Section 402B, supra, under the misrepresentation theory (which is also a warranty) Puskar did not have the burden of proving a “defect” as such. In showing that the Thunderbird was not as represented or advertised, Puskar established that the quality of the Thunderbird was not as represented. The Thunderbird was defective in the sense that it would not perform as warranted. Thus, it is not important whether the misrepresentation form of “strict liability” be classified as an “express” or an “implied” warranty. I cannot agree with the Court of Civil Appeals wherein it holds otherwise. This Court’s holding that there is no evidence to support a holding of strict liability is untenable. The Court seems to adhere to a theory that strict liability is not absolute liability, and since there is no proof that a “defect” existed at the time the Thunderbird left Ford’s control, there can be no liability. Obviously, the Court has completely ignored the evidence in this case which shows that Ford has made a misstatement in its “Owner’s Manual” of a material fact, the quality of 1959 Thunder-birds in general. The Court seems to give very little, if any, weight to the testimony which shows that the representations in the Owner’s Manual were read and understood by Puskar. The Court gives no significance to the testimony that the salesman for Roach made the same representations orally to Puskar that were contained in the “Owner’s Manual”. The Court has failed to properly evaluate the evidence and apply the law apparently because some argument is made that Puskar does not make his position clear in his briefs. The evidence, in my judgment, and Puskar’s arguments in the light of such evidence, demands that Texas fall in line with many jurisdictions and not permit the defendants, the manufacturer and the dealer, to define the scope of their responsibility through the specious argument that Puskar failed to show a particular “defect” in the Thunderbird existed before it left the control of the manufac*276turer. It may be argued that so far as the dealer is concerned, the position taken in this dissent runs contrary to our holding in Bowman Biscuit Co. of Texas v. Hines, 151 Tex. 370, 251 S.W.2d 153 (1952). Such is not the case. The factual background there was entirely different from the facts here. In Bowman, we said in regard to hidden imperfections, such as a small wire in a sealed package, the consumer must be deemed to have relied on the care of the manufacturer and not the wholesaler. Thus, we refused to extend the doctrine which had been previously announced by this Court in Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942). There was no contention in that case that misrepresentations were made in an “Owner’s Manual” and that the purchaser read, understood and relied upon the representations. Cases in other jurisdictions which support my position in addition to Baxter v. Ford Motor Co., supra, are: Worley v. Procter & Gamble Mfg. Co., 241 Mo.App. 1114, 253 S.W.2d 532 (1952); Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E.2d 612, 75 A.L.R.2d 103 (1958); Greenman v. Yuba Power Products, Inc., supra, and a number of others.
1 think it appropriate to quote from the opinion in Greenman v. Yuba Power Products, Inc., supra, a case decided by the Supreme Court of California, in order to point up my views as to the disposition to he made of the present case:
“We need not recanvass the reasons for imposing strict liability on the manufacturer. They have been fully articulated in the cases cited above. (See also 2 Harper and James, Torts, §§ 28.15— 28.16, pp. 1569-1574; Prosser, Strict Liability to the Consumer, 69 Yale L.J. 1099; Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 461, 150 P.2d 436, concurring opinion.) The purpose of such liabiltiy is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves. Sales warranties serve this purpose fitfully at best. (See Pros-ser, Strict Liability to the Consumer, 69 Yale L.J. 1099, 1124-1134.) In the present case, for example, plaintiff was able to plead and prove an express warranty only because he read and relied on the representations of the Shopsmith’s ruggedness contained in the manufacturer’s ■ brochure. Implicit in the machine’s presence on the market, however, was a representation that it would safely do the jobs for which it was built. Under these circumstances, it should not be controlling whether plaintiff selected the machine because of the statements in the brochure, or because of the machine’s own appearance of excellence that belied the defect lurking beneath the surface, or because he merely assumed that it would safely do the jobs it was built to do. It should not be controlling whether the details of the sale from manufacturer to retailer and from retailer to plaintiff’s wife were such that one or more of the implied warranties of the sales act arose. (Civ.Code, § 1735). ‘The remedies of injured consumers ought not to be made to depend upon the intricacies of the law of sales.’ (Ketterer v. Armour & Co., D.C., 200 P. 322, 323; Klein v. Duchess Sandwich Co., 14 Cal.2d 272, 282, 93 P.2d 799.) To establish the manufacturer’s liability it was sufficient that plaintiff proved th^t he was injured while using the Shopsmith in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the Shopsmith unsafe for its intended use.” [Emphasis added.]
It is clear that the California Supreme Court’s opinion stands for the proposition that the plaintiff in Greenman was able to plead and prove an express warranty “only because he read and relied on the representations * * Puskar proved, just as Greenman, that he was injured while using the Thunderbird in the way it was in*277tended to be used and that “as a result of a defect and design and manufacture” of which he was not aware. While in Green-man there was evidence introduced that inadequate set screws were used to hold parts of a machine together, etc., the Court did not rest its holding on this testimony in imposing strict liability. Recovery was allowed because of reliance upon the representations contained in the manufacturer’s brochure.
When we look solely to the evidence in a light most favorable to the jury findings, as we are required to do, such evidence, in my opinion, supports the findings. Therefore, the judgment of the trial court in favor of Puskar and against Ford and Roach in the sum of $60,815.33 on the theories of breach of warranty and negligent misrepresentation should be sustained. The extent of the damages sustained by Puskar is not in dispute. Ford and Roach seem to admit that the theory of law which allows recovery upon proof of negligent misrepresentation is well recognized in this and other jurisdictions, but argue that there was no evidence as to the falsity of the representations, hence, there is a complete absence of negligence. I do not agree with this argument.
Ford and Roach have taken portions of the evidence out of context and presented arguments thereon. Thus, they have successfully led the Court of Civil Appeals to interpret the representations contained in the Owner’s Manual contrary to the interpretation by Puskar of the language of the manual. It is not unreasonable to conclude, as Puskar argues, that the representation was intended to assure the buyer that the power steering system was a great aid when working but that when it failed he would have the same type of steering as he would have had “if he had not been induced to buy the power package.” The Court of Civil Appeals has evolved an erroneous test2 in arriving at its definition of “conventional steering”, hence its erroneous conclusion: “The result is that no witness testified to facts from which the inference could reasonably be drawn that the representation was false.” The Court of Civil Appeals in disregarding all of the evidence in support of Puskar’s theory has done so because of its unwarranted interpretation of “the clear misrepresentation that when the engine stops or fails the advertised victim will ‘have safe steering and full control of your car with conventional steering.’ ”
It is clear from the evidence that regardless of the extent to which Puskar’s ability *278to control the Thunderbird was affected by sudden engine failure, and loss of power steering, the jury was warranted in believing that the engine failed on the Thunderbird while Puskar was operating it under normal and reasonable circumstances, and that such failure resulted in his inability to control the vehicle in the same manner as would have been true had it been equipped only with conventional steering.
The judgment of the trial court should be affirmed.
POPE, J., joins in this dissent.I. “Misrepresentation by Seller of Chattels to Consumer
“One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though
(a) It is not made fraudulently or negligently, and
(b) the consumer has not bought the chattel from or entered into any contractual relation with the seller.”
. “Here appellee [Puskar] bases his support of the jury’s answers on the contention that the representation was that without the power steering operating the operator still would have safe steering and full control of the car with conventional steering. Conventional steering, he [Puskar] asserts, means the same steering as an automobile not equipped, with a power steering system would have. He then urges it takes more exertion to turn the steering wheel where the automobile is equipped with a power steering system where the power system is not operating, than it does to steer an automobile not so equipped because if the power system does not operate additional manual force is needed to force the fluid through the linkage.
“First, we must look at the whole of the language used by Ford to determine what its representation really was. The very first sentence of the representation about power steering states: ‘Up to 75% of the effort needed to steer your Thunderbird is taken over by Master-Guide Power Steering. * * * ’ Then in the next paragraph this is stated: ‘Master-Guide Steering provides power assist only when your Thunderbird’s engine is running.’ Then follows the statement that if the power system is not operating the operator will have ‘safe steering and full control’ of the car ‘with conventional steering.’ When all of the language is considered the representation is that if the power system is not working you will still have safe steering and control of the ear because you will still have steering but it will require 75% more effort to operate than when the power system is working. The representation thus defines what is meant by conventional steering. And the opinion of all the experts is that with such you should be able to control the car." [Emphasis added.]