John C. ARCHIBALD, III, Petitioner, v. ACT III ARABIANS, et al., Respondents, 755 S.W.2d 84

SPEARS, Justice. The issue in this case is whether there is an implied warranty of good and workmanlike performance that applies to horse training services. Petitioner John Archibald placed an Arabian mare in the training program offered by respondent Act III Arabians. While under the care of Act III Arabians, the mare was injured and eventually had to be destroyed. Archibald sued Act III Arabians, alleging negligence, gross negligence, and violations of the Texas Deceptive Trade Practices Act (DTPA). Tex.Bus. & Comm.Code Ann. § 17.41 et seq. (Vernon 1987).

The jury answered all issues on the DTPA claim in Archibald’s favor. The trial court, however, ruled that no implied warranties for services exist under Texas law, and rendered a take nothing judgment against Archibald. The court of appeals affirmed the judgment of the trial court. 741 S.W.2d 957. We reverse the judgment of the court of appeals and remand the cause to that court for a consideration of the points of error not previously reached. Archibald placed four Arabian horses with Act III Arabians for training as show horses.

One of the horses, a mare named Gayle Silva Robyn, was to be trained in an English pleasure riding style. The mare proved difficult to train, bucking each time she was commanded to trot. One of the trainers for Act III Arabians, in an attempt to break the mare’s bucking habit, put the horse through a particularly strenuous training session. The trainer used the riding crop extensively, and welts developed on the mare’s hindquarters. A veterinarian treated the mare for abrasions and swelling. Within a few days, the mare’s skin became dry and sloughed off.

The skin condition was beginning to improve when the mare developed founder, a disease that causes lameness as a result of impaired circulation of the blood to the hoof. The disease so incapacitated the mare that she had to be destroyed. Archibald sued Act III Arabians for damages resulting from the mare’s death. He alleged negligence, gross negligence, and violations of the DTPA. Archibald asserted that Act III Arabians had violated the DTPA by breaching the implied warranty that its horse training services would be performed in a competent, safe, and humane manner.

The jury found that Act III Arabians was negligent but that its negligence was not the proximate cause of the mare’s death. On the DTPA claim, the jury found that

(1) Act III Arabians failed to train the mare in a good and workmanlike manner;

(2) Act III Arabians’ failure to perform in a good and workmanlike manner was a producing cause of the mare’s death; and (3) the mare had a fair market value of $75,000. Nevertheless, the trial court rendered a take nothing judgment against Archibald on the basis that no implied warranties for services exist under Texas law. The court of appeals affirmed the judgment of the trial court. The dispositive issue in this case is whether horse training services fall within the scope of the implied warranty enunciated in Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349 (Tex.1987).

In that case, we recognized that an implied warranty of good and workmanlike performance applies to services involving the repair or modification of existing tangible goods or property. Id. at 354. The warranty articulated in Melody Home extends, by its very terms, to a broad range of services. The term “existing tangible goods” refers generally to all moveable personal property other than money. See Tex.Bus. & Comm.Code Ann. § 2.105 (Vernon 1968); Trunkline LNG Co. v. Trane Thermal Co., 722 S.W.2d 722, 724 (Tex.App.—Houston [14th Dist.] 1986, writ ref d n.r.e.).

Similarly, the term “modification” broadly includes any change or alteration that “introduces new elements into the details [of the subject matter] or cancels some of them” but which leaves “the general purpose and effect of the subject matter intact.” Webb v. Finger Contract Supply Co., 447 S.W.2d 906, 908 (Tex.1969); Black’s Law Dictionary 905 (5th ed. 1979). A horse is an existing tangible good. See Tex.Bus. & Comm.Code Ann. § 2.105 (Vernon 1968); Texas Imports v. Allday, 649 S.W.2d 730, 738-39 (Tex.App.—Tyler 1983, writ ref’d n.r.e.).

The trainer of a horse seeks to alter the demeanor and skills of the animal by instruction, discipline, and drill. Webster’s Third New International Dictionary 2424 (1961). Training introduces new elements to enhance the horse’s capabilities and personality and extinguishes undesirable traits. The result is a modification of the horse’s intrinsic ability to perform and obey commands. Equally important, horse training modifies the value of the animal. Properly conducted training may substantially increase the worth of the animal; improper training may render the animal worthless.

Horse training services, therefore, fall within the scope of the implied warranty of good and workmanlike performance recognized in Melody Home because horse training involves the modification of an existing tangible good. The judgment of the court of appeals is reversed and the cause remanded to that court for a consideration of points of error not previously reached. PHILLIPS, C.J., not sitting. WALLACE, J., dissents, joined by CULVER, J. GONZALEZ, J., dissents.