On Motion for Rehearing or to Certify. Out of deference to the able and forceful motion for rehearing filed herein by appellant, we shall again endeavor to briefly restate our reasons for the prior holding.
Vigorous assault is made on our holding that the admission of the testimony of the two employees of the defendant engaged in the sale of washing machines of the character and type of the one involved here, that they had never heard of anyone being injured using such machine, was not error.
An act or failure to act has the quality of negligence only when injury may be anticipated therefrom. This we take to be a basic and fundamental principle as to which it is unnecessary to cite authority. Where there is a question of negligence vel non any evidence is relevant that tends reasonably either to show that injury might not or might have been anticipated from the action or nonaction in question.
Here the plaintiff charges defendant was negligent in failing to inspect the washing machine before *Page 345 delivering it to his wife for use (that is, the safety device thereon). Granted that defendant's agents failed to do so, this does not necessarily show negligence on their part in failing so to do. If there was no reasonable ground to anticipate that failure to inspect would result in injury, such failure would not constitute negligence. The two witnesses in question were experienced in a degree in the sale of washing machines of this type. It may be fairly presumed that they were in constant contact with the users thereof. If they had never heard of the safety device failing to function prior to Mrs. Pound's injury this might at least be some evidence that there was no necessity of an inspection. This, we think, also is true as to their alleged representations that the machine with the safety device could be used with safety. It was not held in the original opinion that this testimony was competent to show that the machine did not fail to function on the occasion in question. We deem it incompetent for that purpose; likewise, it was incompetent for the purpose of showing that the machine was free from defect. However, if it was admissible on the issue of negligence as alleged and submitted, the action of the court in overruling the objection was proper. Upon request the court might have limited the purpose of the testimony to the issue on these grounds of negligence. If plaintiff desired the court to do this, it was incumbent to make such request. Burrell Engineering Const. Co. v. Grisier, 111 Tex. 477, 240 S.W. 899.
We are of the opinion, insofar as the testimony of these witnesses was based on lack of knowledge subsequent to the injury of plaintiff's wife, that the testimony was inadmissible. However, this objection was not made.
We shall again briefly discuss the question as to the effect of the erroneous admission of the testimony in relation to the dismissal of plaintiff's suit against the Borg-Warner Company. In a consideration of this question the issues involved in the case should be considered and the findings thereon. Further must be considered the nature of the testimony in relation to whether or not it was reasonably calculated to operate to the prejudice of the plaintiff.
The verdict establishes the warranty substantially as alleged by plaintiff, but finds against plaintiff on the issue of a breach of the warranty. The finding was that plaintiffs wife did not properly operate the safety device on the occasion in question. On the trial the washing machine with the safety device was exhibited before the jury. The safety device was manipulated before the jury. This device was, according to plaintiff's theory at least, in the same condition that it was at the time of the injury. The theory of the submission was that in order to recover on either the ground of warranty or of negligence, the establishment that she properly invoked the aid of the safety device, and it failed to function, was necessary. Failing to establish this, under the charges submitted she could not recover. There is no complaint made as to the charge. On this issue the testimony in question was certainly without probative effect.
The testimony admitted in the case of International Travelers' Ass'n v. Bettis, 120 Tex. 67, 35 S.W.2d 1040, was relevant and material on the vital and material issue in the case, although inadmissible. In fact it was held to be the only testimony establishing the vital issue in the case. Its admission was positively prohibited by statute as involving a transaction with the deceased. In the case of Bell v. Blackwell, Tex.Com.App., 283 S.W. 765, strongly relied upon by plaintiff, the argument there complained of was wrongful argument as to the vital issue in the case. In Bain Peanut Co. v. Pinson, Tex.Com.App., 294 S.W. 536, it was held that the improper testimony there admitted was in its nature prejudicial.
We believe the true rule is, that in order to support the presumption of harm, the testimony wrongfully admitted must be such as is reasonably calculated to harm the complaining party.
If this is the case, Bell v. Blackwell, supra, and International Travelers' Ass'n v. Bettis, supra, apply. If the testimony erroneously admitted is not in its nature calculated to harm the complaining party, then we think Rule 62a applies.
Rule 62a: "No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial *Page 346 of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the cause to the appellate court; and if it appear to the court that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error: Provided, if the erroneous action or failure or refusal of the trial judge to act shall prevent the proper presentation of a cause to the Court of Civil Appeals, and be such as may be corrected by the judge of the trial court, then the judgment shall not be reversed for such error, but the appellate court shall direct the said judge to correct the error, and thereafter the Court of Civil Appeals shall proceed as if such erroneous action or failure to act had not occurred." Golden v. Odiorne, 112 Tex. 544,249 S.W. 822; Burrell Engineering Const. Co. v. Grisier, supra.
We do not hold that it is necessary that it be shown that the inadmissible testimony caused the rendition of the verdict. What we do hold is that, in a case where the testimony is not of a nature reasonably calculated to prejudice the rights of the plaintiff, it must be shown that it might have affected the verdict.
A discussion of the cases on the subject of harmless error and presumed error would unduly lengthen this opinion.
As has been before stated, in our opinion, the testimony complained of is clearly irrelevant and immaterial. If irrelevant and immaterial, the prejudicial effect thereof must be in some other way than as to logical bearing on the issue involved. It is asserted that it was prejudicial in that the jury might have believed that plaintiff still had a remedy as against the Borg-Warner Company. Now the evidence of the dismissal taken in connection with the testimony of Mr. Flournoy seems to us to explain adequately why plaintiff's remedy was not prosecuted against that defendant. If the finding represents the facts, presumptively plaintiff did not have a cause of action against anybody. Had they thought she was wronged under the evidence the finding would hardly have been that she did not properly invoke the safety device.
We have given careful and painstaking consideration of appellant's motion for rehearing and adhere to our views as expressed. The motion to certify is likewise overruled. If what we have held herein conflicts with the holding of the Supreme Court, there is jurisdiction to review same.
The motions are overruled.