Campbell Hausfeld/Scott Fetzer Company v. Paul Johnson

FILED

Dec 29 2017, 11:01 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE

J. Curtis Greene Theodore L. Stacy

Mark J. Crandley Valparaiso, Indiana

Meredith Thornburgh White

J.T. Larson

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Campbell Hausfeld/Scott Fetzer December 29, 2017

Company, Court of Appeals Case No.

Appellant-Defendant, 64A03-1705-CT-984

Appeal from the Porter Superior

v. Court

The Honorable Mary R. Harper,

Paul Johnson, Judge

Appellee-Plaintiff Trial Court Cause No.

64D05-1407-CT-5893

Altice, Judge.

Case Summary

[1] Paul Johnson lost his eye and suffered other facial injuries after using a tool

designed and sold by Campbell Hausfeld/Scott Fetzer Company (Campbell

Hausfeld). In response to the products liability suit filed by Johnson, Campbell

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Hausfeld alleged the defenses of misuse, alteration, and incurred risk and filed a

motion for summary judgment primarily based on these defenses. The trial

court determined that Campbell Hausfeld had established misuse as a matter of

law due to Johnson’s failure to wear safety glasses. Accordingly, the trial court

granted summary judgment in favor of Campbell Hausfeld on Johnson’s

defective design claim. The trial court, however, denied summary judgment

with regard to the failure to warn claim. On appeal, Campbell Hausfeld argues

that it is entitled to summary judgment on both claims, while Johnson contends

that neither claim warrants summary judgment.

[2] We affirm in part, reverse in part, and remand.

Facts & Procedural History

[3] Campbell Hausfeld sells various power tools to consumers through retailers

throughout the United States. Around 2000, Campbell Hausfeld undertook a

project to work with outside manufacturers to design and produce a line of

pneumatic tools targeted to the consumer do-it-yourself market. As part of this

project, Campbell Hausfeld designed a mini air die grinder called the TL1120

(the Grinder), which it sold in stores through 2011. The Grinder is an eight-

inch, handheld, air-powered tool intended for grinding, polishing, deburring,

and smoothing surfaces in close spaces. It is packaged with wrenches to be

used to loosen the metal receiver at the end of the tool to add and remove

different attachments, which are not included with the Grinder. The Grinder

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does not include a safety guard. If permanently affixed, a guard would prevent

users from grinding in tight areas and would obscure users’ view.

[4] The Grinder also came with a set of operating instructions. Included within

these instructions are the following two relevant warnings:

Appellant’s Appendix Vol. III at 201-202. The instructions indicate that a warning

symbol “alerts you to a hazard that COULD result in death or serious injury”.

Id. at 201. Additionally, the surfaces of the Grinder direct users to read the

manual, wear safety glasses, and use accessories rated at or above 25,000 RPM.

[5] Although the Grinder was expressly intended for grinding, polishing, deburring,

and smoothing, the instructions reference using a cut-off disc with the Grinder.

Specifically, in plain text and without a warning or other symbol, Instruction 15

states: “Do not use a cut-off disc mandrel on this tool unless a safety guard is in

place.” Id. As stated above, however, no safety guard was provided for use

with the Grinder.

[6] Johnson, an experienced tool user, purchased the Grinder for a welding project

several months prior to August 2012. After reading the operating instructions,

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he attached a wire wheel accessory that he already owned to the Grinder and

used it to clean film off the weld. Johnson did not use the Grinder again until

the night of August 20, 2012.

[7] That night, Andrew Reed came over to Johnson’s pole barn to visit. Johnson

indicated that he wanted to work on replacing the headlights on Reed’s truck, a

project the two had been contemplating for some time. The project required the

cutting of fiberglass and a metal headlight bezel. Because he would be working

in a tight space, Johnson decided to use the Grinder with a cut-off disc, which

he connected using a mandrel, instead of his angle grinder.1 Though aware

that the Grinder did not have a guard, Johnson claims that he did not realize

that there was a risk of personal injury if he used a cut-off disc on the Grinder

without a guard. The cut-off disc likely had a maximum RPM rating of 19,000.

Reed expressed concern that the RPM rating for the disk was too low, but

Johnson promptly put him at ease.

[8] Johnson wore prescription glasses as he cut around the headlights with the

Grinder. He thought the glasses, which contained safety glass, were sufficient

to constitute safety glasses. Johnson quickly completed the cuts around the first

headlight and moved to the second. He took a break while cutting the second

opening in order to allow his air compressor to regain pressure. When he began

1

On all previous occasions in which he used a cut-off disc, Johnson attached the disc to an angle grinder that

had an affixed guard. He felt the angle grinder was “too big and bulky to hold and make the cuts” for this

project. Appendix Vol. II at 153.

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the final cut, the disc disintegrated and a piece struck him in the left side of his

face, breaking his eyeglasses and causing serious injury to his cheek and eye.

Johnson ultimately lost his left eye.

[9] In 2014, Johnson timely filed suit against Campbell Hausfeld for damages he

sustained as the result of using the Grinder. Johnson asserted failure to warn

and defective design claims under the Indiana Products Liability Act (IPLA).

On September 29, 2016, Campbell Hausfeld filed a motion for summary

judgment in which it argued, among other things, that the evidence established

each of the three defenses provided by the IPLA (misuse, alteration, and

incurred risk) and that no reasonable jury could find Johnson less than 51% at

fault for his injuries. Both parties designated evidence and filed briefs with the

trial court.2

[10] Along with other evidence, Johnson designated the affidavit of Lloyd

Sonenthal, a professional forensic engineer and products liability attorney. 3 In

2

Campbell Hausfeld notes that Johnson has provided us with evidence that was not designated below. For

example, he includes in his appendix a nearly 200-page deposition, the bulk of which was not specifically

designated by either party. This is improper. Accordingly, we will limit our review to the designated

evidence. See Baker v. Heye-Am., 799 N.E.2d 1135, 1139 (Ind. Ct. App. 2003) (“This court may not search the

entire record but may only consider the evidence that has been specifically designated.”), trans. denied. The

manner in which Johnson designated evidence certainly leaves much to be desired, but we reject Campbell

Hausfeld’s additional blanket challenge to Johnson’s designated evidence, which is improperly raised for the

first time in its appellate reply brief.

3

Campbell Hausfeld argues that Sonenthal is not qualified to give an expert opinion in this case because he

“is not a die grinder or power tool expert or an expert on warnings or product safety design”. Appellant’s Brief

at 38. Thus, Campbell Hausfeld contends that the affidavit should not be considered on summary judgment.

The difficulty with this argument is that Campbell Hausfeld did not file a motion to strike the affidavit below.

Therefore, the trial court did not have an opportunity to exercise its gatekeeping function under Ind.

Evidence Rule 702. Moreover, Sonenthal is a professional forensic engineer who examined most if not all of

the available evidence, including the Grinder, and offered his opinions regarding design defect and failure to

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his lengthy affidavit, Sonenthal opines that faulty instructions, inadequate

warnings, and lack of a safety guard (or specific information regarding a proper

guard) rendered the Grinder unreasonably dangerous when it left the

manufacturer. Sonenthal addresses the danger inherent in using a cut-off disc

with a die grinder and observes that ISO 11148-9:2001(E)4 paragraph 6.2.2.9,

titled “Accessory hazards” provides in relevant part: “Never mount a grinding

wheel, cut-off wheel or router cutter on a die grinder. A grinding wheel that

bursts can cause very serious injury or death.” Appellant’s Appendix Vol. III at

196. Sonenthal also notes that ISO 11148-9:2001 paragraph 4.2.6 states in part:

“die grinders intended for use with accessories larger than 50 mm in diameter

shall have a wheel guard.” Id. Campbell Hausfeld did not provide users of the

Grinder with a guard, even though Instruction 15 suggested that a cut-off wheel

could be used with the Grinder and the instructions did not limit the size of

accessories. Further, Sonenthal observes that Campbell Hausfeld did not warn

users of the dangers associated with using a cut-off wheel on the Grinder.

Sonenthal opined that these defects were proximate causes of Johnson’s injuries

and that Johnson’s use of a disc with an RPM rating of 19,000 was not a

warn. “Engineering is a recognized field of study.” Fueger v. Case Corp., 886 N.E.2d 102, 107 (Ind. Ct. App.

2008), trans. denied. The arguments asserted by Campbell Hausfeld appear more suited to cross-examination

at trial regarding the appropriate weight that should be given his expert testimony. See id. (“any gaps in his

knowledge of skid loaders could be exploited at trial through vigorous cross-examination and should not

have been weighed by the trial court in a motion to strike and motion for summary judgment”).

4

ISO 11148-9:2001(E) provides international safety standards applicable to die grinders.

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contributing factor because the disc was rotating below its designed speed by a

wide margin.

[11] Following a hearing, the trial court entered an order on March 10, 2017,

concluding that Johnson misused the Grinder as a matter law by failing to wear

safety glasses. The court granted summary judgment in favor of Campbell

Hausfeld on the defective design claim but denied summary judgment with

respect to the failure to warn claim. Campbell Hausfeld moved to certify the

order for interlocutory appeal. The trial court granted the motion, and this

court subsequently accepted jurisdiction. Additional facts will be provided

below as needed.

Standard of Review

[12] We review the propriety of summary judgment de novo and apply the same

standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

Summary judgment is appropriate where the designated evidence establishes

that there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law. Id. On review, we liberally construe all

designated evidentiary material in the light most favorable to the nonmoving

party to determine whether there is a genuine issue of material fact for trial.

Barnard v. Saturn Corp., 790 N.E.2d 1023, 1028 (Ind. Ct. App. 2003), trans.

denied.

Discussion & Decision

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[13] There is no dispute that the IPLA governs this case. See Ind. Code § 34-20-1-1.

Under the IPLA,

a person who sells, leases, or otherwise puts into the stream of

commerce any product in a defective condition unreasonably

dangerous to any user or consumer … is subject to liability for

physical harm caused by that product to the user or consumer…:

(1) that user or consumer is in the class of persons that the

seller should reasonably foresee as being subject to the

harm caused by the defective condition;

(2) the seller is engaged in the business of selling the

product; and

(3) the product is expected to and does reach the user or

consumer without substantial alteration in the condition in

which the product is sold by the person sought to be held

liable under this article.

I.C. § 34-20-2-1. “A product may be defective within the meaning of the IPLA

because of a manufacturing flaw, a defective design, or a failure to warn of

dangers in the product’s use.” Baker, 799 N.E.2d at 1140. In this case,

Johnson’s claims against Campbell Hausfeld fall within the last two categories

of alleged defects and are intermingled. Essentially, Johnson claims that the

Grinder was defective in design because it was sold without a safety guard and

with no information on how to obtain or use such a guard, which is not readily

available for purchase from Campbell Hausfeld. Johnson also claims that the

instructions failed to warn regarding the dangers of using the Grinder with a

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cut-off wheel without a safety guard. Both of these claims require Johnson to

establish at trial that Campbell Hausfeld “failed to exercise reasonable care

under the circumstances in designing the product or in providing the warnings

or instructions.” I.C. § 34-20-2-2.

[14] The IPLA provides three affirmative defenses to a products liability action,

which are generally referred to as misuse, incurred risk, and alteration. I.C. §§

34-20-6-3 through -5. Campbell Hausfeld asserts all three defenses against

Johnson’s lawsuit and in support of its motion for summary judgment.

[15] Before addressing each defense, we observe that comparative fault principles

apply in products liability cases. I.C. § 34-20-8-1(a) (“the fault of the person

suffering the physical harm, as well as the fault of all others who caused or

contributed to cause the harm, shall be compared by the trier of fact in

accordance with IC 34-51-2-7, IC 34-51-2-8, or IC 34-51-2-9”). For purposes of

the IPLA, “fault” is defined as:

an act or omission that is negligent, willful, wanton, reckless, or

intentional toward the person or property of others. The term

includes the following:

(1) Unreasonable failure to avoid an injury or to mitigate

damages.

(2) A finding under IC 34-20-2 [] that a person is subject to

liability for physical harm caused by a product,

notwithstanding the lack of negligence or willful, wanton,

or reckless conduct by the manufacturer or seller.

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Ind. Code § 34-6-2-45(a). Notably, this definition does not include “incurred

risk” which is expressly included in the definition of fault applicable to general

tort claims. I.C. § 34-6-2-45(b).

Misuse

[16] Pursuant to I.C. § 34-20-6-4, it is a defense to a products liability action that “a

cause of the physical harm is a misuse of the product by the claimant…not

reasonably expected by the seller at the time the seller sold or otherwise

conveyed the product to another party.” The defendant bears the burden of

proving that the plaintiff misused the product in an unforeseeable manner.

Barnard, 790 N.E.2d at 1029. “Foreseeable use and misuse are typically

questions of fact for a jury to decide.” Id. at 1028.

[17] Misuse is not a complete defense but instead is considered along with all other

fault in the case under the comparative fault scheme. See id. at 1029-30; Weigle

v. SPX Corp., 729 F.3d 724, 739 (7th Cir. 2013). The determination and

allocation of fault is a question for the jury, except where there is no dispute in

the evidence and the jury could come to only one conclusion. See Green v. Ford

Motor Co., 942 N.E.2d 791, 795 (Ind. 2011); Barnard, 790 N.E.2d at 1031.

[18] Campbell Hausfeld asserts that Johnson misused the Grinder in three ways: he

did not wear proper safety glasses; he attached and used a cut-off disc without a

safety guard in place; and, the cut-off disc had an inadequate RPM rating.

Campbell Hausfeld notes that Johnson’s actions were in direct contravention of

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the operating instructions, which Johnson received and read after purchasing

the Grinder.

[19] There is no dispute that Johnson did not wear safety glasses when operating the

Grinder or that the operating instructions and the handle of the Grinder warned

users to wear safety glasses. However, Johnson, as well as Reed, testified that

on the night of his injury, Johnson believed his prescription eyeglasses

constituted sufficient safety glasses. Although they did not, we cannot say as a

matter of law that Campbell Hausfeld could not reasonably foresee a user

confusing other eyewear with safety glasses. Further, even assuming that

Johnson’s failure to wear eyeglasses constituted misuse, his fault in this regard

would need to be weighed by the jury based on principles of comparative fault.

[20] Turning to Johnson’s use of the cut-off disc without a guard, we observe that

Instruction 15 establishes Campbell Hausfeld foresaw that the Grinder might be

used as a cut-off tool in addition to its primary purposes of grinding, polishing,

deburring, and smoothing. The instruction states: “Do not use a cut-off disc

mandrel on this tool unless a safety guard is in place.” Appellant’s Appendix Vol.

III at 201. Despite this foreseeable use, Campbell Hausfeld did not provide a

safety guard with the Grinder or explain to users how to obtain a proper safety

guard or what in fact constitutes such a guard. Additionally, Campbell

Hausfeld did not designate this instruction as a warning or otherwise expressly

bring the user’s attention to the dangers associated with such use.

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[21] Johnson designated evidence regarding the danger of using a cut-off disc with a

die grinder. Specifically, Sonenthal’s affidavit discusses safety standards

applicable to die grinders. Sonenthal references ISO 11148-9:2001(E)

paragraph 6.2.2.9, which indicates that a cut-off wheel should never be

mounted on a die grinder, and ISO 11148-9:2001 paragraph 4.2.6, which

provides that die grinders intended for use with accessories larger than 50 mm

in diameter shall have a wheel guard. Campbell Hausfeld did not expressly

limit the size of accessories that could be attached to the Grinder and suggested

that a cut-off wheel could be used, yet did not provide users with a guard.

[22] Campbell Hausfeld responds that the ISO standards cited by Sonenthal did not

become effective until December 1, 2011. There is no designated evidence

supporting Campbell Hausfeld’s claim in this regard. Moreover, the designated

evidence indicates that the Grinder was sold by Campbell Hausfeld through

2011. Thus, even accepting Campbell Hausfeld’s unsupported statement

regarding the effective date of the ISO standards at issue, the evidence indicates

that Johnson could have purchased the Grinder after that date.

[23] Despite the dangers associated with using a cut-off disc on the Grinder,

Campbell Hausfeld did not provide users with an express warning. Instruction

15 simply indicated in plain text that a cut-off disc mandrel should not be used

without a safety guard. No doubt Johnson ignored this instruction, but the

designated evidence does not establish that Campbell Hausfeld provided a

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legally sufficient warning in this regard.5 Thus, although Johnson’s use of the

Grinder in disregard of the instruction to use an unprovided safety guard likely

constitutes misuse, such misuse must be compared with any fault attributable to

Campbell Hausfeld’s, such as its failure to warn.

[24] The final misuse alleged by Campbell Hausfeld is that the cut-off disc had a

maximum RPM rating of 19,000 and that instructions for the Grinder, as well

as writing on the body of the tool, warned users to use attachments rated for a

minimum of 25,000 RPM. Johnson clearly disregarded this warning. Sonethal

opined, however, that the inadequate rating was not a contributing factor in

Johnson’s injury because the disc was rotating well below its designed speed.

Sonenthal explained that given the low-capacity air compressor and the set up

used by Johnson, it was his belief that Johnson’s die grinder was incapable of

reaching a rotational speed above 13,000 RPM. Campbell Hausfeld’s engineer

Brandon Cross testified, “hypothetically, if the tool’s running at 13,000 RPM,

then it would be safe to use a 19,000 RPM cut-off disc.” Appellee’s Appendix Vol.

II at 9. In light of this designated evidence, whether Johnson’s use of an

5

A presumption exists that where an adequate warning is provided by the seller, the warning will be heeded

by the user. See Kovach v. Caligor Midwest, 913 N.E.2d 193, 199 (Ind. 2009). The adequacy of a warning,

however, is generally a question of fact. Weigle, 729 F.3d at 731. A seller must provide both adequate

instructions for safe use of the product and a warning as to dangers inherent in improper use. Id. Potential

harmful consequences must be made apparent to the user, with warnings of such intensity as to cause a

reasonable person to exercise for his or her own safety caution commensurate with the potential danger. Id.

(citing Jerrell v. Monsanto Co., 528 N.E.2d 1158, 1162-63 (Ind. Ct. App. 1988), trans. denied). On appeal,

Campbell Hausfeld seems to argue that an instruction (i.e., Instruction 15) is the same as a warning but its

own safety legend provided in the operating instructions indicates otherwise.

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inadequately rated disc was a “cause of [his] physical harm” remains a material

issue of fact for the jury to decide. I.C. § 34-20-6-4.

[25] In sum, we cannot agree with Campbell Hausfeld that Johnson wearing

eyeglasses instead of safety glasses or using an inadequately rated cut-off wheel

constituted misuse, as defined by I.C. § 34-20-6-4, as a matter of law. Further,

Johnson’s use of the Grinder in disregard of Instruction 15 is just one part of the

comparative fault analysis. The designated evidence simply does not establish

as a matter of law that Johnson was at least 51% at fault and that the jury, when

allocating fault, could come to only one conclusion. Accordingly, Campbell

Hausfeld is not entitled to summary judgment based on the defense of misuse.

Alteration

[26] Campbell Hausfeld also asserts the defense of alteration in support of its motion

for summary judgment. This defense applies where:

a cause of the physical harm is a modification or alteration of the

product made by any person after the product’s delivery to the

initial user or consumer if the modification or alteration is the

proximate cause of the physical harm where the modification or

alteration is not reasonably expectable to the seller.

I.C. § 34-20-6-5. “The modification or alteration of the product must be

independent of the expected and intended use to which the product is put.”

Smock Materials Handling Co., Inc. v. Kerr, 719 N.E.2d 396, 404 (Ind. Ct. App.

1999).

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[27] The Grinder is designed to be used with attachments that are purchased

independently by the user. Moreover, the operating instructions imply that a

“cut-off disc mandrel” may be attached to the Grinder, which effectively

modifies the tool from a die grinder to a cut-off tool. Thus, Campbell Hausfeld

cannot seriously contend that it could not have reasonably expected that a user

would attach a cut-off disc using a mandrel. Campbell Hausfeld is not entitled

to summary judgement based on this defense.

Incurred Risk

[28] Campbell Hausfeld also asserts the defense of incurred risk in support of its

motion for summary judgment. Unlike misuse, in the context of products

liability cases, this defense is a complete defense and not subject to comparative

fault. See I.C. § 34-6-2-45. The defense applies where “the user or consumer

bringing the action: (1) knew of the defect; (2) was aware of the danger in the

product; and (3) nevertheless proceeded to make use of the product and was

injured.” I.C. § 34-20-6-3. A defendant is entitled to summary judgment on the

basis of incurred risk only if “the evidence [is] without conflict and the sole

inference to be drawn is that the plaintiff had actual knowledge of the specific

risk and understood and appreciated that risk.” Cole v. Lantis Corp., 714 N.E.2d

194, 200 (Ind. Ct. App. 1999).

[29] The doctrine of incurred risk focuses on a plaintiff’s venturousness and requires

a subjective determination. Pfenning v. Lineman, 947 N.E.2d 392, 403 (Ind.

2011). It “teaches that a person who proceeds in the face of what he knows to

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be a risk of a certain consequence cannot complain if the consequence

materializes.” Traylor v. Husqvarna Motor, 988 F.2d 729, 732 (7th Cir. 1993).

“To incur risk, the injured party must have been more than generally aware of

the potential for injury, but must have had actual knowledge of the specific

risk.” Meyers v. Furrow Bldg. Materials, 659 N.E.2d 1147, 1149-50 (Ind. Ct. App.

1996), trans. denied.

[30] Campbell Hausfeld directs us to two cases in which we affirmed summary

judgment based on incurred risk. In each of these cases, however, the

manufacturer provided users with express warnings. See Coffman v. PSI Energy,

Inc., 815 N.E.2d 522, 529 (Ind. Ct. App. 2004) (plaintiff’s testimony showed he

was “fully aware of the risks of injury associated with his conduct” and

“disregarded all warnings that were provided”, including an obvious “label

warning of the dangers posed by overhead power lines”), trans. denied; Meyers,

659 N.E.2d at 1149-50 (because plaintiff had extensive knowledge of and

experience using concrete and had read the multiple warnings on the bags, he

was aware of the specific risk of burns from wet concrete).

[31] In this case, the designated evidence does not establish that Campbell Hausfeld

provided a legally sufficient warning regarding the dangers of using the Grinder

without a guard. Users were not warned that using the Grinder in this manner

could result in serious injury or death. Further, although Johnson had

experience with tools in general, including ones with attached guards, he

testified that prior to his injury, he was not aware of any risk of injury if he used

the cut-off disc on the Grinder without a guard. He testified that he would not

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remove a safety guard that came affixed to a tool, such as on his angle grinder,

but the Grinder did not have such a guard. A jury could certainly determine

that Johnson, an experienced tool user, was aware of and accepted the specific

risk involved in using the Grinder without a guard, but this is not the sole

inference that can be drawn from the evidence. Thus, Campbell Hausfeld is not

entitled to summary judgment based on the defense of incurred risk.

Defective Design Claim

[32] In passing, Campbell Hausfeld argues that even if not precluded based on the

statutory defenses, Johnson’s claim of defective design fails as a matter of law.

Campbell Hausfeld does not specifically set out the elements of such a claim.

Rather, it attacks Sonenthal’s affidavit, arguing that Sonenthal “displays his

lack of industry awareness by asserting another brand’s two-in-one die

grinder/cut-off tool is an alternative design.” Appellant’s Reply Brief at 20.

Campbell Hausfeld then notes that the Sonenthal affidavit “does not engage in

any cost-benefit analysis”. Id. These slender arguments do not establish

Campbell Hausfeld’s entitlement to summary judgment. We remind Campbell

Hausfeld that in Indiana it is not sufficient for a party moving for summary

judgment to point out alleged failings in the nonmovant’s evidence. Rather, it

is the movant’s burden to designate evidence and affirmatively demonstrate the

absence of a genuine issue of fact as to a determinative issue. See Jarboe v.

Landmark Cmty. Newspaper of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994).

Conclusion

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[33] Campbell Hausfeld is not entitled to summary judgment based on any of its

asserted statutory defenses. Moreover, the designated evidence establishes a

genuine issue of material fact regarding whether Campbell Hausfeld provided

adequate warning concerning the use of the Grinder with a cut-off disc,

especially where the operating instructions imply that the Grinder may be used

as a cut-off tool. Finally, we conclude that Campbell Hausfeld has failed to

establish its entitlement to summary judgment on the defective design claim.

The trial court, therefore, improperly granted summary judgment on the

defective design claim.

[34] Judgment affirmed in part, reversed in part, and remanded.

Baker, J. and Bailey, J., concur.

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