TEXAS SLING COMPANY et al., Petitioners, v. Samuel EMANUEL et al., Respondents, 431 S.W.2d 538

NORVELL, Justice. H. A. Lott, Inc. was the general contractor for the construction of a school building in Houston, Texas. It leased from H. A. Lott, individually, a Koehring No. 605 crane to be used to lift heavy buckets of concrete from the ground to the various levels of the construction project. It became necessary in the progress of the work to extend the reach of the crane by lengthening its boom twenty feet. H. A. Lott, individually, as owner of the crane, contracted with American Powerstage Company to furnish the twenty foot extension, including extensions for the pendant lines of the crane.

American Powerstage in turn contracted with Texas Sling Company, a specialist in the splicing of wire ropes, to splice the twenty foot) extensions. American Powerstage furnished the wire rope. While in operation, approximately six weeks after the extended boom and pendant lines were delivered to H. A. Lott, Inc., one of the splices on one of the pendant line extensions pulled apart and the boom and bucket crashed to the floor level causing personal 'injuries to Samuel Emanuel, an employee of H. A. Lott, Inc.

Emanuel, a respondent here, sued petitioners, Texas Sling Company and; American Powerstage Company, for damages; also, H. A. Lott, individually. The workmen compensation carrier for respondent’s employer intervened. H. A. Lott, Inc., respondent’s employer, also sued Texas Sling and American Powerstage for damages to property. All suits were consolidated and tried to a jury. A judgment awarding a recovery of $75,182 was rendered for Emanuel against Texas Sling; out of this sum, the intervening workmen’s compensation carrier was awarded $5,837. The judgment also awarded H. A.

Lott, Inc. a joint and several recovery of $7,000 against Texas Sling and American Powerstage for property damage. Texas Sling appealed from the judgment in favor of Emanuel, but only American Powerstage appealed from the judgment in favor of H. A. Lott, Inc. H. A. Lott, individually, was discharged with a take-nothing judgment and no appeal was taken therefrom.

The opinion of the Court of Civil Appeals treated the appeal of Texas Sling separately from that of American Powerstage and held that no reversible error had been shown by either Texas Sling or American Powerstage as appellants in that court. 418 S.W.2d 565. We agree with the appellate court’s holding that no error was shown with reference to the appeal of American Powerstage. That court’s opinion' adequately disposes of the contentions and arguments for reversal.

However, we are of the opinion that the Court of Civil Appeals erred in affirming the trial court’s judgment insofar; as it awarded a recovery by Emanuel (and the compensation carrier) against Texas Sling. Accordingly, the cause of action asserted by H. A. Lott, Inc. against American Powerstage Company is severed from the cause of action asserted by Emanuel against Texas Sling Company. The judgments of the Court of Civil Appeals and the trial court disposing of the claim asserted by H. A. Lott, Inc. against American Powerstage Company are affirmed.

The judgments of the trial court and the Court of Civil Appeals relating to the claim of Emanuel against Texas Sling Company and the recovery of the workmen’s compensation carrier are reversed and said cause of action is remanded to the trial court for a new trial. The trial court’s judgment insofar as it affects nonappealing parties is left undisturbed. While the opinion of the Court of Civil Appeals mentions the jury’s answers to Special Issues Nos. 23 to 26, inclusive, its judgment of affirmance is predicated upon the jury’s answers to Special Issues Nos. 14, 15 and 16.

The brief filed by Emanuel in the Court of Civil Appeals, which is incorporated in the reply to the application for writ of error, contained two counterpoints, one relying upon “the failure to inspect” set of issues, that is, Nos. 14,15 and 16, and the other upon the jury’s answers to Special Issues Nos. 23 to 26, inclusive, which Emanuel contends are products liability issues. The root or primary issue of this cluster or series of issues relates to a transaction or agreement between Texas Sling and American Powerstage, viz.: “Do you believe and find from a preponderance of the evidence that Mr.

Eddie Coffer, acting for and on behalf of Texas Sling Company, orally agreed with Mr. John Goss (a representative of American Powerstage) to furnish splices as necessary to make two 20-foot wire ropes suitable for use as boom pendant cables ?” This issue seems to suggest something in the nature of an express agreement or warranty. We have difficulty in ascertaining the exact theory upon which Emanuel sought recovery under this issue and those immediately following it. The pleadings afford no help.

Recovery under the doctrine of implied warranty or strict liability in tort is applicable to certain specialized situations and from an inspection of the pleadings, we conclude that the cause was pleaded as a negligence case and not one of implied warranty or strict liability. The Court of Civil Appeals sustained the trial court’s judgment upon the theory that Texas Sling failed to inspect the splice that failed (Issue No. 14); that such failure was negligence (Issue No. 15) and the proximate cause of Emanuel’s injuries.

We agree with that court’s observation that such evidence is “scanty and circumstantial in nature,” but disagree with its holding that such evidence has probative force. In our opinion, the evidence furnishes nothing more than a basis for a surmise, guess or conjecture, and consequently Texas Sling’s “no evidence” points should be sustained. In discussing the evidence, we point out that this lawsuit was not tried as a res ipsa loquitur case. There were no pleadings specially invoking the doctrine but on the contrary, Emanuel set forth a number of grounds which he said constituted negligence.

As mentioned by the Court of Civil Appeals, the question of whether Texas Sling failed to use the number of tucks in making the splice that “a splicer of ordinary prudence would have used in the exercise of ordinary care” was submitted to the jury and was not answered in the affirmative. On this issue, the plaintiff Emanuel failed to meet the burden of proof. The testimony as to failure to inspect, if it can be considered as evidence at all, was highly circumstantial. No one testified that the splice in question was not inspected. H. G.

Sutton, Jr., the President of Texas Sling, testified that it was the practice of the company to inspect the splices made by it after they had been completed and that E. W. Coffer was charged with this responsibility.. Coffer testified that in 1961, at the time the particular splice was made, he was occupying a managerial position with Texas Sling; that it was customary for a senior employee to inspect completed splices, but he did not remember whether he had made an inspection of this particular splice or not. The jury answered that no inspection was made.

The only circumstance available to show that no inspection was made was the fact that the splice failed, i. e., the fact that the splice broke shows that it had not been inspected. On the issue of proximate cause, it is necessary to go further into the realm of surmise and conjecture. The splice did not part until after it had been in use for some six weeks. Yet it is urged that had an inspection been made, Emanuel would not have been injured. This, despite the circumstance that the specific defect which caused the splice to fail is not known.

To reach this result, one must first presume that an inspection was not made, then presume that had an inspection been made, it would have disclosed the defect which caused the splice to part some six weeks later. The basis of all this speculation and the piling of one presumption upon another is nothing more than the fact that the splice failed to hold. It is one thing to imply negligence generally from the happening of an event, but quite another thing, when the defect in an instrumentality is unknown, to infer that the cause of the unknown defect would have been discovered had an inspection been made.

In attempting to construct a bridge with these presumptions having no factual basis, the argument seems to run as follows: We do not know the specific cause of the event, but we assume that it was negligent in nature because the resulting event or accident would not have occurred in the absence of negligence and then, having thus established negligence, we supply the previously unknown cause by the simple assumption that there being no1 other explanation, we will simply infer that the unknown defect would have been discovered had an inspection been made.

General negligence is a recognized basis of tort liability, but the rules relating thereto are rather formalized and must be followed if a recovery is to be sustained upon that theory. A case tried upon specific acts or omissions of negligence is a different type of action. However, in the present case, the establishment of general negligence is reached by reasoning similar to that employed in a res ipsa loquitur case. The root issue — failure to inspect — generally the first to be decided, is reached by a species of backward reasoning, so to speak. It is an interesting but unsound technique.

Even one with small imagination may by surmise supply a number of possible defects or reasons why the splice failed. The circumstance that one of these surmises may correspond with a similar surmise made by a jury cannot raise the surmise to anything more than a conjecture which will not support a jury finding. In Fort Worth Belt Ry. v. Jones, 106 Tex. 345, 166 S.W. 1130 (1914), Chief Justice Brown, writing for this court in answering a certified question, laid down the following rule which has been generally followed in this state. (See, Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791 [1955]).

The court in Forth Worth Belt Ry. v. Jones said: “A presumption of fact cannot rest upon a fact presumed. The fact relied upon to support the presumption must be proved. ‘No inference of fact should be drawn from premises which are uncertain. Facts upon which an inference may legitimately rest must be established by direct evidence, as if they were the facts in issue. One presumption cannot be based upon another presumption.’ 16 Cyc. 1051; Mo. Pac. Ry. Co. v. Porter, 73 Tex. 307, 11 S.W. 324. * * *” See also, Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059; Farnie v.

Fair Store, Inc., 304 S.W.2d 752 (Tex.Civ.App.1957, writ ref'd n. r. e.). Ordinarily, when we hold that a jury’s findings relied upon to support a judgment lack support in the evidence as a matter of law, we render judgment rather than remand the case. However, this rule is not invariably applied. Both this court and the Courts of Civil Appeals “have a wide discretion in determining whether or not a case should be remanded for new trial on reversal.” Yarbrough v. Booher, 141 Tex. 420, 174 S.W.2d 47, 150 A.L.R. 1369 (1943); Scott v. Liebman, 404 S.W.2d 288 (Tex.Sup.1966).

As a majority of the court is of the opinion that in the interests of justice, a remand for a new trial should be entered, it is accordingly so ordered. Judgments of the trial court and the Court of Civil Appeals affirmed in part and reversed in

part in the terms indicated in the forepart of this opinion. Dissenting opinion by STEAKLEY, J., joined by SMITH and POPE, JJ. Dissenting opinion by GRIFFIN, J. . The jury also found in the three issues following No. 23 that one of such splices was not suitable; that such splice caused the boom pendant to be immediately dangerous, and that the action of Texas Sling in furnishing the splice was the proximate cause of the accident. See 418 S.W.2d 567. . The accepted method of splicing cables is set out in the opinion of the Court of Civil Appeals. See footnote, 418 S.W.2d 568.

The evidence discloses that the brazing of cable ends was done to facilitate the handling of the cable by eliminating protruding wires rather than to strengthen the splice. . In the theory of general negligence or res ipsa loquitur, control of a defective device by the party sought to be charged with liability is often an important consideration in determining the applicability of the doctrine.