(concurring).
In concurring in the disposition of this cause, I can but repeat the old adage known *45to all lawyers, “bad facts make bad law.” We have an abbreviated record arising out of a venue hearing where the only witness was a young man who had purchased a tractor while a minor, a few years before the hearing. Testifying frequently in answer to leading questions of his counsel, Tenberg established that he bought the tractor from Hajek, a “John Deere dealer” in Lavaca County, paying cash therefor. His testimony was clear that the tractor did not perform satisfactorily despite the efforts of Hajek to make it do the job which Tenberg expected of it. Although a minor at the time of the purchase of the tractor, he did not plead minority as a part of his cause of action.
Two issues of the “Progressive Farmer”, a magazine of general circulation devoted to farming, were offered in evidence to indicate the type of advertising which had been made about the tractor model in question. In each instance, the name and address of the manufacturer was given as “John Deere, Moline, Illinois.” Two issues of “The Furrow”, apparently a promotional type of brochure sent out by the manufacturer of “John Deere” tractors, were also admitted into evidence. The publisher’s name and address in each instance is given as “John Deere, Moline, Illinois.” A careful examination of an “operator’s manual” which Tenberg says he got from Hajek does not indicate who manufactured the tractor. The same is true of a brochure describing the “1010” tractors bearing the trade name of “John Deere.”
In his original petition, Tenberg alleged that “The Defendant John Deere Company of Kansas City is a manufacturer and distributor of John Deere tractors, and at some time prior to October 30, 1965 manufactured and delivered to John F. Hajek a certain John Deere No. 1010 diesel tractor * * * ”
While no proof was made of either of the facts so alleged against the appellant (that it was either the manufacturer or distributor of the tractor or that it delivered the same to Hajek), if plaintiff made out a bona fide cause of action against Hajek, the petition itself would be sufficient under Subdivision 4, Article 1995, Vernon’s Ann. Civ.St., to hold appellant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302 (1936).
All of the evidence showing Hajek’s relationship with the appellant is to be found in this colloquy between appellant’s counsel and the court:
“THE COURT: Is there any denial of his [Hajek] being your authorized agent, Mr. Coleman?
“MR. COLEMAN: No denial that Mr. Hajek was a John Deere dealer.
“THE COURT: Had been for several years ?
“MR. COLEMAN: Not an authorized agent, but an authorized dealer.
“THE COURT: I meant dealer.
“MR. COLEMAN: We are talking about dealers, and he was a John Deere dealer.
“THE COURT: It will be so stipulated in the record then.” 1
The comments found in General Motors Corp. v. Ewing, 300 S.W.2d 714, 718 (Waco, Tex.Civ.App., 1957, no writ), are appropriate :
“Our view of the record is that the testimony fails to show that the defendant had any dealings or transactions with the plaintiff as regards the sale of the Buick *46car; plaintiff made his purchase from an independent automobile dealer. It seems to us that the dealer is in no way connected with defendant other than being in a position to resell the automobiles it buys from defendant.”
The dissent, p. 43, comments upon the fact that the appellant did not contend that “ * * * it did not manufacture this tractor * * Appellant had no burden to make any contention, one way or the other. The plea of privilege, regular upon its face, placed the burden of proof upon the plaintiff, Tenberg. In Coalson v. Holmes, 111 Tex. 502, 240 S.W. 896 (1922), the court said:
“With the venue challenged, under proper plea, by one sued without his county, as shown by the plaintiff’s pleading, or by proof, the burden not only to allege but to prove that the case is within one of the exceptions to the statute rests on the plaintiff.”
See also: Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062, 1063, 1064 (1938) ; Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758, 761 (1956); 1 McDonald, Texas Civil Practice (1965 Rev.), § 4.55(b), p. 612; 60 Tex.Jur.2d, Venue, § 204, pp. 53-56.
Tenberg relied upon subdivisions 4, 23, and 27 of Article 1995, V.A.C.S., to overcome the prima facie right of the appellant to be sued in the county of its domicile. Under subdivision 4, it was incumbent upon Tenberg to show by a preponderance of the evidence three venue facts: (a) one defendant, Hajek, resides in the county of suit; (b) the party asserting the plea of privilege is at least a proper party to the claim against the resident defendant; and (c) the plaintiff has a bona fide claim against the resident defendant. 1 McDonald, Texas Civil Practice (1965 Rev.), § 4.10.2, p. 434, and cases therein cited.
Under subdivisions 23 and 27, Tenberg labored under the burden of establishing a prima facie cause of action against the non-resident corporate defendant. McDonald, supra, § 4.30.2, p. 518, and cases therein cited. Thus, whether or not Tenberg established a cause of action against either defendant becomes of utmost importance; for, until he brought himself clearly within one of the exceptions, he could not maintain venue in Lavaca County against appellant. Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969, 972 (1951).
As indicated previously, there was no evidence showing or tending to show the nature of the contractual relationship, if any, between appellant and Hajek or the extent of his authority, if any, to act for appellant. Cf. Ford Motor Co. v. Revert, 428 S.W.2d 139 (Amarillo, Tex.Civ.App., 1968, no writ). It was shown, however, that Hajek, a resident of Lavaca County, sold the tractor to Tenberg in Lavaca County, where the suit was brought. Thus, he met McDonald’s subsection (a), supra, as to subdivision 4 of the statute. Because of the contention of the dissent that the so-called “warranty” quoted in the majority opinion should not be considered because defensive in nature,2 I turn directly to the claim which Tenberg asserted against Hajek.
So avoiding the tactical maneuver of whether the written instrument between *47Tenberg and Hajek was or was not “defensive” in nature, I meet my dissenting brother vis-a-vis on the issue of the proof of a cause of action under this record. Here I encounter the renewed effort to import into our law the “implied warranty” of fitness in the face of a record which denies the existence of any warranty. I question the validity of the base of the opinion in Ford Motor Co. v. Grimes, 408 S.W.2d 313 (Eastland, Tex.Civ.App., 1966, error dism.), both factually and legally.3 Grimes, it is to be noted, antedated the effective date of the Uniform Commercial Code discussed hereinafter. Factually, too, our case is much more similar to Ford Motor Co. v. Revert, supra, than it is to Grimes.
In my opinion, insofar as it relates to transactions entered into before the effective date of the Uniform Commercial Code, Pyle v. Eastern Seed Co., 145 Tex. 385, 198 S.W.2d 562, 563 (1946), has continuing vitality. This is so notwithstanding the modern change in the course of the law with respect to products liability and the caveat raised by the per curiam opinion, refusing the writ of error, n. r. e., in Perry Co. v. Sherwin-Williams Co., 431 S.W.2d 310 (Tex.Sup., 1968). The enigmic words used by the court in Perry may well be considered as notice that an extension of Pyle is not to be entertained, but do not necessarily constitute a repudiation of Pyle.
Chief Justice Calvert has recently reviewed the law on the subject of products liability in Texas as developed over the last twenty-seven years, Pittsburg Coca-Cola Bottling Works v. Ponder, 443 S.W.2d 546 (Tex.Sup., 1969), and it should do much to restore stability in this rapidly changing field of the law.
His counterpart on the California Supreme Court, Chief Justice Traynor, is also known for his far-reaching opinions in the field of products liability and in the extension of the doctrine of strict liability to non-food products, e. g., Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049 (1962). In a scholarly opinion, Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145, 151 (1965), Chief Justice Traynor reviewed the policy reasons underlying the adoption of the strict liability rule where injury to person or property results from the use of the product. He then contrasted these policy reasons with those which would deny liability for consequential damage from the use of the product. There are cases to the contrary, e. g., Santor v. A and M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305, 16 A.L.R.3d 670 (1965), cited in the dissent; and, possibly, the opinion of Ms court in Ford Motor Co. v. Lemieux Lumber Co., 418 S.W.2d 909 (Beaumont, Tex.Civ.App., 1967, no writ), with which I am not in complete agreement. Cf. Ford Motor Co. v. Revert, supra (428 S.W.2d at 141).
In the search for a legal theory in this field which could be made to fit the needs of a modern society, the courts of the land have had a long and arduous task. Finally, the theory of strict liability in tort, ignoring and brushing aside the time-honored but inadequate privity doctrine, emerged as it is now stated in the Restatement of the Law of Torts, § 402A. This section has been adopted in its entirety in Texas, Ponder, supra, and cases therein reviewed.
*48However, the doctrine of implied warranty of fitness of the product when it does not cause personal injury or damage to property is something entirely different, and is not included in § 402A, supra. Such a rule, which would include the case at bar, has been “ * * * criticized as a bastard combination of tort liability and contract terminology * * * ” 16 A.L.R.3d 683, 688 (1967). The theory is described in Santor, supra, in these words: “Its character is hybrid, having its commencement in contract and its termination in tort.” 207 A.2d at 311.
So far, there are two distinct lines of authority on the subject, each being based upon a well-reasoned opinion from a strong court. Santor extends the rule of strict liability to consequential damages, i. e., loss of the bargain, while Seely would deny its entry into that field of law. In Seely the strong dissent further emphasizes the argument for the adoption of the rule to cases such as this. I submit, however, that there is a third approach to the problem, that of the Uniform Commercial Code which became effective July 1, 1966. Unfortunately, this third approach is not available to us in this instance. § 12.102, U.C.C.
This being a venue case, the opportunity for review is severely limited. Article 1728, V.A.C.S.; Brown v. Gulf Television Co., 157 Tex. 607, 306 S.W.2d 706 (1957); Harry Eldridge Co. v. T. S. Lankford & Sons, Inc., 371 S.W.2d 878 (Tex.Sup., 1963). On this interlocutory appeal, we have an incomplete record without a full factual development of the case. Under these circumstances, I think that we would be well advised to refrain from attempting to choose between the conflicting lines of cases exemplified by Santor and Seely, respectively. In the immediate future, the provisions of the Uniform Commercial Code, §§ 2.313-2.318, on the subject of warranties, will become of ever increasing importance. See: Keeton, “Products Liability,” 23 S.W. Law Jrl. 1, 7 (1969).
If any additional reason need be assigned for abstaining from writing upon a subject not absolutely required by our record m a field of such expanding interest and change, we have but to point to Justice Norvell’s remarks in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 791 (Tex.Sup., 1967), and leave such extension of the common law doctrine, if it is to be extended, to our court of last resort.
Our case' is adequately covered by Chief Justice Parker and I concur in the result. The view of my dissenting brother would, in my opinion, open Pandora’s Box, from which new and unanticipated problems may fly, even though there be hope left in the bottom of the box. In all reasonable probability, the bench and the bar of this state will live with the Uniform Commercial Code for many years and solutions will be found for the myriad of problems which will emerge therefrom. We should not, I submit, multiply the number or increase the complexity of these problems by an ill-considered and unwarranted extension of a common law doctrine of doubtful validity into a field which has now been pre-empted by statute.
. The term “dealer” is defined in the Certificate of Title Act, regulating the sale of motor vehicles, Article 1436-1, § 19, V.A.P.C., as “ * * * any person purchasing motor vehicles for resale at retail to owners.” The tractor in question may or may not have been a “motor vehicle” under the Certificate of Title Act, depending upon its use. Article 1436-1, § 2, V.A.P.C.; Article 6675a-2, §§ (b) and (c), Y.A.C.S.
. I accept without hesitation the rule of law that in the hearing on the plea of privilege the issue for determination is venue, not liability. Stockyards Nat. Bank v. Maples, supra (95 S.W.2d at 1304) ; Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675, 677 (1935). I do not, however, subscribe to the proposition that testimony from a plaintiff which negatives the existence of a cause of action cannot be considered simply because it was elicited on cross-examination. Such is not a “hearing” in any sense of the word as was clearly stated in Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 95 (1935). Tenberg’s dealings with Hajek, including the “warranty”, constituted a part of a single over-all transaction making up, if it did, his cause of action. It was a part of his case to establish a bona fide cause of action against Hajek, and the instrument was an integral part thereof.
. Detailed proof in Grimes, established the direct connection of Ford with the faulty vehicle. No such proof is in evidence here. Indeed, only by spéculation can we even guess the name of the manufacturer of the tractor. “John Deere, Moline, Illinois” may very well be the corporation known as “John Deere Company of Kansas City”, but it cannot be learned from this record. See generally: General Motors Corp. v. Ewing, supra, and Ford Motor Go. v. Revert, supra.
I am not ingenuous enough to believe that there is no connection between our appellant and the manufacturer of the tractor ; but, in this modern age of discovery practice, courts should not be required to rely upon speculation when evidence could be produced.