Appendix — Fibreboard Paper Products Corp. v. Borel

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Ix The

SUPREME COURT OF THE UNITED STATES

Ocroper Term, 1974

Fisresoakp Paper Provuctrs Corporation, ET AL,

Petitioners,

v.

CLARENCE Bonen,

Respondent.

APPENDIX

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INDEX TO APPENDIX

Opinion of the Fifth Cireuit dated September 10, 1973,

493 BF. 2d 1076.

Opinion of the Fifth Circuit on Motion for Rehearing

entered May 13, 1974.

Copy of Article 8806, See. 20(n), and Article 8306,

See, 26, Revised Civil Statutes of Pexas,

Opinion Ct. Civ. App. Tex., Kasch v. Anton, 81 S.W.

Pd O97, 1100,

Copy of The Asbestos Worker, October, 1956,

Copy of The Asbestos Worker, July, 1997.

Copy of The Asbestos Worker, November, 1961,

Copy of The Asbestos Worker, April, 1957.

Aflidavit re other cases involving claims for damages

resulting from asbestos exposure,

List of other cases pending.

Opinion, Sup. Ct. Tex., Pittsburg Coca-( ‘ola Bottling

Works v. Ponder (1969), 445 S.W. 2d 546, 548,

Opinion, Sup. Ct. Tex., Howle v, Camp Amon Carter

(Tex. 1971), 470 S.W. 2d 629.

Opinion, Sup. Ct. Tex., MeKisson v. Sales Affiliates,

Inc. (Tex. 1967), 416 SW. 2d 787.

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Ix Tue

UNITED STATES COURT OF APPEALS

For Tue Firru Cirevir

CLARENCE Bonen,

Plaintiff-A ppellee,

Vv.

Fipresoarp Paper Propucts CORPORATION, ET AL,

Defendants-Appellanis,

NaTIONAL Surety Corporation,

Intervenor-A ppellee,

APPEAL FROM THE UNITED STATES District Court

FOR THE EASTERN District or TEXAs

(September 10, 19738

493 F.2d 1076

Before TUTTLE, WISDOM and SIMPSON,

Cireuit Judges.

WISDOM, Circuit Judge: This product liability case

involves the scope of an asbestos manufacturer’s duty to

warn industrial insulation workers of dangers associated

with the use of asbestos.

Clarence Borel, an industrial insulation worker, sued

certaiz, manufacturers of insulation materials containing

asbestos to recover damages for injuries caused by the

defendants’ alleged breach of duty in failing to warn of the

dangers involve in handling asbestos. Borel alleged that

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he had contracted the disease of asbestosis and mesotheli-

oma as a result of his exposure to the defendants’ products

over a thirty-three year period beginning in 1936 and

ending in 1969. The jury returned a verdict in favor of

Borel on the basis of strict liability. We affirm.

I.

Clarence Borel began working as an industrial insulation

worker in 1936. During his career, he was employed at

numerous places, mostly in Texas, until disabled by the

disease of asbestosis in 1969. Borel’s employiient neces-

sarily exposed him to heavy concentrations of asbestos

dust generated by insulation materials. In his pre-trial

disposition, Borel testified that at the end of a day working

with insulation material containing asbestos his clothes

were usually so dusty he could “just barely pick them up

without shaking them.” Borel stated: “You just move them

a little and there is going to be dust, and T blowed this

dust out of my nostrils by handfuls at the end of the day,

trying to use water too, I even used Mentholatum in my

nostrils to keep some of the dust from going down in my

throat, but it is impossible to get rid of all of it. Even

your clothes just stay dusty continually unless you blow

it off with an air hose.”

3orel said that he had known for years that inhaling

asbestos dust “was bad for me” and that it was vexatious

and bothersome, but that he never realized that it could

‘usc any serious or terminal illness. Borel emphasized

that he and his fellow insulation workers thought that the

dust “dissolves as it hits your lungs”. He said:

A. Yes, I knew the dust was bad but we used to talk

fabout] it among the insulators, [about] how bad

was this dust, could it give you TB, could it give

you this, and everyone was saying no, that dust

et

A-5

don’t hurt vou, it dissolves as it hits vour lungs. That

was the question you get all the time.

Q). Where would you have this discussion, in your

Union Hall?

A. On the jobs, just among the men.

Q. In other words, there was some question in your

inind as to whether this was dangerous and whether

it was bad for vour health?

A. There was always a question, you just never know

how dangerous it was. I never did know really. If

I had known I would have gotten out of it.

Q. All right, then you did know it had some degree of

danger but you didn’t know how dangerous it was!

A. I knew I was working with insulation.

@. Did you know that it contained asbestos?

A. Yes, sir, but 1 didn’t know what ashestos was.

When asked about the use of respirators, Borel re-

plied that they were not furnished during his early work

years. Although respirators were later made available on

some jobs, insulation workers usually were not required to

wear them and had to make a special request if they wanted

one. Borel stated that he and other insulation workers found

that the respirators furnished them were uncomfortable,

could not be worn in hot weather, and — “you can’t breathe

with the respirator.” Borel further noted that no respira-

tor in use during his lifetime could prevent the inhalation of

asbestos dust. As an alternative precaution, therefore, he

would sometimes wear a wet handkerchief over his nostrils

or apply mentholatum, but these methods were also unsatis-

factory and did not exclude all the dust.

Borel stated that throughout his early working life and

until the mid-1960’s he was in good health, except for pains

caused by lung congestion that his doctor attributed to

pleurisy. In 1964, a doctor examined Borel in connection

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with an insurance policy and informed him that x-rays of

his lung were cloudy. The doctor told Borel that the cause

could be his ocewpation as an inswlation worker and there-

fore advised him to avoid asbestos dust as much as he

possibly could.

On January 19. 1969, Borel was hospitalized and a lung

biopsy performed. Borel’s condition was diagnosed as pul-

monary asbestosis. Since the disease was considered irre-

versible, Borel was sent home. Borel testified in his depost-

tion that this was the first time he knew that he had

asbestosis.

Borel’s condition gradually worsened during the re-

mainder of 1969, On February 11, 1970, Borel underwent

surgery for the removal of his right lung. The examining

doctors determined that Borel had a form of Junge cancer

known as mesothelioma, whieh had been caused by ashe.-

tosis. As a result of these diseases, Borel later died before

the district case reached the trial stage.

The medical testimony adduced at trial indicates that

inhaling asbestos dust in industrial conditions, even with

relatively light exposure, can produce the disease of as-

hestosis.' The discase is difficult to diagnose in its early

stages because there is a long latent period between initial

exposure and apparent effect, This latent period may vary

according to individual idiosvnerasy, duration sand tien

ity of exposure, and the type of asbestos used. Tn some

cases, the disease may manifest itself in less than ten vears

after initial exposure, In general, however, it) does not

lnanifest itself until ten to twenty-five or more venrs after

initial exposure. This Litent period is explained by the

tor a discussion of asbestosis and its effeet on industrial tusula-

tion workers, see Selikoff, Bader, Bader, Churg and Tammond,

Asbestos and Neoplasia, 42 Am. J. Med. 487 (1967); Selikel?,

Churyg, and Hammond. The Qeeurrence of Asbestosis Amony

Insulation Workers. 132 Aun. New York Aead. Se. 139 01965),

AT

fact that asbestos fibers, onee inhaled, remain in place in

the lung, causing a tissue reaction that is slowly progres-

sive and apparently irreversible. Even if no additional

asbestos fibers are inhaled, tissue changes may continue

undetected for decades. By the time the disease is diagnos-

able, a considerable period of time has clapsed since the

date of the injurious exposure. Furthermore, the effect

of the disease may be cumulative since each exposure to

asbestos dust can result in additional tissue changes. A

worker's present condition is the biologieal product of

many years of exposure to asbestos dust, with both past

and recent exposures contributing to the overall effect. Al

of these factors combine to make it impossible, as a practi-

eal matter, to determine which exposure or exposures io

ashestos dust caused the disease.

A second disease, mesothelioma, is a form of lung cancer

caused by exposure to asbestos. It affects the pleural and

peritoneal cavities, and there is a similarly long period

between initial contact and apparent effeet. As with ashes-

tosis, it is difficult to determine which exposure to asbestos

dust is responsible for the disease.”

At issue in this case is the extent of the defendants’

knowledge of the dangers associated with insulation prod-

ucts containing asbestos. We pause, therefore, to sum-

marize the evidence relevant to this question.

Asbestosis has been recognized as a disease for well over

fifty years.* The first reported cases of asbestosis were

2 Td.

* Asbestos has been known to man since ancient times. As a generic

term, it applies to a number of inorganic, fibrous, silicate min-

erals that possess a erystaline structure. Asbestos is incombust-

ible in air and separable into filaments. It was used as an insula-

tor against heat as early as 1866, and asbestos cement was intro-

duced about 1870. Asbestos insulation material has been com-

mercially produced since at least 1874.

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among textile workers. In 1924, Cooke in England dis-

covered a case of asbestosis in a person who had spent

twenty years weaving asbestos textile prodnets.* In the next

decade, numerous similar cases were observed and dis-

cussed in medical journals, An investigation of the problem

among textile factory workers was undertaken jn Great

Britain in 1928 and 1929.5 In the United States, the first

official claim for compensation associated with asbestos was

in 1927.° By the mid-1930's, the hazard of ashestoxis as a

pneumoniotie dust was universally aecepted.? Cases of

1 Cooke, Fibrosis of the Lungs Due to the Inhalation of Asbestos

Dust. 2 Brit. Med. J. 147 (19243): Cooke, Pulmonary Askestosis.

2? Brit. Med. J. 1024 (1927

> Merewether and Price, Report on the Effects of Asbestos Dust

on the Lungs and Dust Suppression ‘1 the Asbestos Industry

(1930).

6 Lanza. Asbestosis. 106 J. A. M.A 368 (19505.

7H. R. Rep. No. 14316, 90th Cong, 'd Sess. 349, 555 (1680. Dr.

L. J. Selikoff of the School of Environmental Sciences; Labora-

tory. Mount Sinai School of Medicine, City University of New

York, stated:

In 1924. which is a little over 40 years ago, Dr. Cooke in

England described a case of a woman dying of severe lung

scarring who had spent 26 years in a textile factory, weaving

asbestos, and in the next deeade many similar cases were

reported, so that by the mid-1930's the hazard of asbestos

as a pheumovoniotic dust was pretty universally accepted.

Textile factories in this country. most of them in’ the

southern part of our country. were also studied and our

Publie Health Service fully documented the very significant

risks involved in asbestos textile factories and a classic report

by Dreessen and his colleagues which was published by the

GPO in W288! Precautionary measures were urged in this

report and elimination of hazardous e Xpostires were strongly

recommended,

As [sit here now, Lam unhappy to say that unfortunately

implementation of these recomie sndations has been haph: ward

and inadequate and that conditions and dangers so well

ch “ee and so well described 40 years ago are still with

It is an unhappy reflection on all of us — government,

sanbie health authorities. and my own medical profession —

that at this time in the United States in the 1960's 7 percent

of all deaths ameng insulation workers in this country are

due to a completely preventable cause, pulmonary asbestosis.

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asbestosis in insulation workers were reported in this

country as early as 1934.8 The U.S. Public Health Service

fully documented the significant risk involved in asbestos

textile factories in a report by Dreessen, et al., in 1938.° The

authors urged precautionary measures and urged elimina-

tion of hazardous exposures.

The first large-scale survey of asbestos insulation workers

was undertaken in the United States by Fleischer-Drinker,

et al., in 1945.'° The authors examined insulation workers

in eastern Navy shipyards and found only three cases of

asbestosis. They concluded that “asbestos covering of naval

vessels is a relatively safe operation.” Signiticantiy, ninety-

five percent of those examined had worked at the trade for

less than ten years. Since asbestosis is usually not diagno-

sable until ten to twenty vears after initial exposure, the

authors’ conclusion has been eriticized as misleading.

Perhaps recognizing this possibility, the authors cautioned

that the study did not “give a composite picture of the

ashestos dust that a worker may breathe over a period

of years”, and that “if pipecoverers had worked steadily

funder conditions| where the amount of asbestos dust in

the air was consistently high, the incidence of asbestosis

among these workers would have been considerable

9 T

greater.” The authors stated that “the sugegestions relative

to exhaust ventilation and respiratory protection are there-

* Elman, Pnenmoconiosis, 14 Brit. J. Radiol. 361 (1934).

* Dreessen et al. A Study of Asbestosis in the Asbestos Textile

Industry, Public Health Bull. No. 241 (1958),

™ Fleischer, Viles. Gade and Drinker. A Health Survey of Pipe-

Covering Operations in Constructing Navat Vessels, 28 J. fidust.

Hyg. 9-16.

M Selikoff, et al, Asbestosis and Neoplasia, 42 Am. J. Med. 487

(1967).

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fore of value in maintaining this low incidence of asbes-

tosis’)?

In 1947, the American Conference of Governmental In-

dustrial Hygienists, a quasi-official body responsible for

making recommendations concerning industrial hygiene,

issued gnidelines suggesting threshold limit values for

exposure to asbestos dust. In its first report, the ACGIIT

recommended that there should be no more than five mil-

lion parts per cubie foot of air. It later determined im 1968

that the threshold limit value should be reduced to two

million.'*

Throughout the 1950's and 1960's, further studies and

medical reports on asbestosis were published. In 1965, 1. J.

Selikoff and his colleagues published a study entitled “The

Qecurrenee of Asbestosis Among lasalation Workers in

the United States.”'!* The authors examined 1,552 members

of an insulation workers union in the New York-New Jersey

metropolitan area. Evidence of pulmonary asbestosis was

12 Fleischer, supra note 10 at 15.

1 See Documentation of the Threshold Limit Values for Sub-

stances in Workroom Air, A.C.G.LH. (3ed 1971). The A.CLG.

I.H. has described the threshold limit values as “conditions

under which it is believed that nearly all workers may be re-

peatedly exposed, day after day, without adverse effect. The

values listed refer to time-weighted average concentrations for a

normal workday. The amount by which these figures may be

exceeded for short periods without injury to health depends

upon a number of factors such as the nature of the contaminant,

whether very high concentrations even for short periods pro-

duce acute poisoning, whether the effects are cumulative, the

frequenes with which high concentrations occur, and the dura-

tion of such periods.”

See Threshold Limit Values for 1961, A.C.G.LH. (1961).

Selikoff, Churg, and Hammond, The Occurrence of Asbestosis

Among Industrial Insulation Workers, 132 Ann. New York

Aead. Se. 139 (1965).

1

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found in almost half of the men examined. Among those

with more than forty years experience, abnormalities were

found in over ninety pereent. The authors concluded that

“asbestosis and its complications are significant hazards

among insulation workers.’ Other studies have since con-

firined these findings.'®

The plaintuf introduced evidence tendiigz to establish

that the defendant manufacturers either were, or should

Have been, fully aware of the many articles and studies on

ashestosis. The evidence also indicated, however, that

during Borel’s working career no manufacturer” ever

15 The authors state:

Among the asbestos insulation workers examine } by us,

evidence of pulinonary asbestosis was present in almost half

the men examined. Tn this evaluation, radiologien! elecsee

has been used as the sole criteria. (See Table 5) We under-

stand. of course, that evaluation of the presenee amd extent

of asbestosis Timited only to X-ray findings tends to result

in underestimation of the ineidence of asbestosis. but few

instances of disabling disease will be so overlooked. Atialysis

of our data indicates that radiologically evident pulmonary

asbestosis varied directly with the durzetion of exposure. tue

sulation workers with relatively short periods of exposure

have a siguifieantiy lower incidence of pulmonary asbestosis

and this, when present, was generally of minimal extent.

OF S46 men whose exposure had begun less than ten years

before examination. only 36 or 10.4 per cent showed any

radiological abnormality. In each of these eases. the retientar

tifiltration was iniuanal in extent and in tone was there

evidence of pleural caleitication. In ony four was pleural

fibrosis seem. OY S79 men whose exposure had begun from

10 to 19 vears before examination. nore than hall still had

normal N-rays. Some abnormality was seen on N-ray in 167

of these eases but only nine was the asbestosis greater than

miniwal ta 35 of these men there was some plearal {lrosis

and in five, evidence of calcification.

n the other hand, among the 392 men with more than

20 years elapsed from onset of exposure, the very large

inajority had X-ray evidence of pulmonary asbestosis. Among

the 77 whose exposure began from 20 to 29 years prior to

examination, 56 showed abnormal films. Among 194 whose

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warned contractors or insulation workers, including Borel,

of the dangers associated with inhaling asbestos dust or

informed them of the ACGIH’s threshold limit values for

exposure to asbestos dust. Furthermore, no manufacturer

ever te-ted the effect of their products on the workers using

them or attempted to discover whether the exposure of

insulation workers tu asbestos dust exceeded the suggested

threshold limits.

On October 20, 1969, Borel initiated the presci:t diver-

sity action in the United States District Court for the

Eastern District of Texas. Borel named as defendants

eleven manufacturers of asbestos insulation materials used

by him during his working career. He settled with four

examination took place from 30 to 39 years following onset

of exposure, almost 9 of 10 showed abnormal films while,

of those with more than 40 years from onset of exposure

only one in 20 showed no abnormality. Moreover, the asbes-

tosis in these cases tended to be considerably more extensive

and several and pleural calcification and fibrosis were com-

monly seen.

TABLE 5

X-RAY CHANGES IN ASBESTOS INSULATION WORKERS

Onset of

exposure % &% Asbestosis (grade)

(yrs.) No. Normal Abnorma i & 2 3

40 + 121 D.8 94.2 35 51 28

30-39 194 12.9 87.1 102 49 18

20-39 77 27.2 72.8 339 17 4

10-12 379 5.9 14.1 158 9 0

0-9 346 89.6 10.4 36 0 au

1.117 51.5 48.5 366 126 50

Selikoff. et al, supra note 15 at 147.

16 Recognition of the grave occupational health problem posed by

asbestos and other toxic and physically harmful substances has

led to the passage of the Occupational Safety and Health Act

of 1970, 29 U.S.C. § 651 et seq., 84 Stat. 1590. The Act gives the

Secretary of Labor the authority to establish standards for

_ permissible concentrations of airborn asbestos fibers.

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defendants before trial. The trial court instructed a ver-

diet as to a fifth. The remaining defendants were: Fibre-

board Paper Products Corporation, Johns-Manville Prod-

ucts Corporation, Pittsburgh Corning Corporation, Philip

Carey Corporation, Armstrong Cork Corporation, and

Ruberoid Corporation, a Division of GAF Corporation..7

Borel died before trial and his widow was substituted as

plaintiff under the Texas wrongful death statutes. Tex. Rev.

Civ, Stat. arts. 4671, 5525.

The plaintiff sought to hold the defendants liable for

negligence, gross negligence, and breach of warranty or

strict liability. The negligent acts alleged in the complaint

were: (1) failure to take reasonable precautions or to ex-

ercise reasonable care to warn Borel of the danger to which

he was exposed as a worker when using the defendants’

asbestos insulation products; (2) failure to inform Borel

as to what would he safe and sufficient wearing apparel

and proper protective equipment and appliances or method

of handling and using the various products; (3) failure to

test the asbestos products in order to ascertain the dangers

involved in their use; and (4) failure to remove the prod-

ucts from the market upon ascertaining that such products

would cause asbestosis. The plaintiff also alleged that the

defendants’ products were unreasonably dangerous because

of the failure to provide adequate warnings of the foresce-

able dangers associated with them.

The original complaint also named as defendents Owens-Corning

Fiberglass Corporation, Standard Asbestos Manufacturing and

Insulating Company, Unarco Industries, Ins.. Eagle-Picher

Industries, Ine., and Combustion Engineering, Ine. The first

four firms settled before trial. The trial court instructed a ver-

dict in favor of Combustion Engineering, Ine.. because the plain-

nf had failed to show that he had been exposed to any product

of that company.

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The defendants denied the allegations in the plaintiffs

complaint and interposed the defenses of contributory neg-

ligence and assumption of risk.

The trial court submitted the case to the jury on general

verdicts accompanied by a special interrogatory ax to

Borel’s contributory negligence. As to the negligence count,

the jury found that all the defendants, except Pittsburgh

and Armstrong, were negligent but that none of the de-

fendants had been grossly negligent. It found also, how-

ever, that Borel had been contributorily negligent.

As to the strict liability count, the jury found that all

the defendants were liable and determined that the total

damages were $79,436.24. Sinee four defendants originally

named in the complaint had previously settled, paying a

total of $20,902.20, the trial court gave full credit for the

sums paid in settlenrent and held the remaining six de-

fendants jointly and severally liable for the balance of

£58,534.04. The defendants appealed.

Il.

At the outset, we meet the question whether the trial

court properly instructed the jury on strict liability. Since

federal jurisdiction is based on diversity of citizenship,

the substantive law of the forum state, Texas, controls.

Erie R.R. Co. v. Thompkins, 1938, 304 U.S. 64, 58 S.Ct. 817,

82 L.Ed. 1188.

Under Texas law, a manufacturer of a defective product

may be liable to a user or consumer in either warranty or

tort.* With respect to personal injuries caused by a defec-

18 The Restatement (Second) of Torts and its Reporter at the time

Section 402A was drafted, Professor Prosser, in his writings,

treoted breach of implied warranty not in the language of con-

ee.

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tive product, the Texas Supreme Court has adopted the

theory of strict Jiability in tort as expressed in section

402A of the Restatement (Second) of Torts (1964).2% Me-

Kissoun v. Sales Affiliates, lic., V967., 416 SW 2d 787: Sham-

rock Fuel & Oil Sales Co. v. Tanks, 1967, 416 S.W.2d 779;

Tersun Feed Yards, luc. y. Ralston Purina Co. 5 Civ. V1.

447 F.2d 660, Section 4024 provides, in relevant part:

“One who sells any product in a defective condition un-

reasonably dangerous to the user or consumer... ix sub-

ject to liability for physical harm thereby caused to the

ultimate consumer or vser”,

tractural warranty but in the language of strict liability im tort.

Sec Prosser, The Assanlt Upon the Ciadel (Strict Liability te

the Consumer), 69 Yale L. J. 100%, 1126-1127 (160) 2 Prosser.

The Fall of the Citadel (Striet Liability to the Consumer). 50

Minn. L. Rev. 791. 804-05 (19660. Typically. in Greeno vo Clark

Equipment Co.. NLD. Ind. 1965, 237 F. Supp. 427. 42! the

court noted that strict liability in tort as imposed by section

MOZA of Restaten, t (Second) of Torts (14) is

“hardly more than what exists under nuplied warranty when

stripped of the contract doctrines of privity. disclaimer. re-

quirements of notice of defect, and limitation through in-

consistencies with express warranties.”

es S024. Special liability of Seller of Product for Physical

Harm to User or Consumer.

(1) One who sells any product in a defective condition un-

reasonebly dangerous to the tser or consumer or to his prop-

erty is subject to the ultimate user or consumer. or te his

property, if

(a) the seller ts engaved in the business of selling

such a product, and

tb) it is expected to and does reach ite tser or con-

sumer Without substantial change in the condition in

which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the

preparation and sale of his product. asd

(b) the user or consumer has not bought the product

from or entered into any contractural relation with the

seller.

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Under the Restatement, liability may not be imposed

merely because a product involves some risk of harm or

is not entirely safe for all uses. Products liability does

not mean that a seller is an insurer for all harm result-

ine from the use of his product. Rather, a product is

“defective” under the Restatement only if it is “unreason-

ably dangerous” to the ultimate user or consumer.?” The

requirement that the defect render the product “unreason-

ably dangerous” reflects a realization that many products

have both utility and danger. The determination that a

product is unreasonably dangerous, or not reasonably safe,

means that, on balance, the utility of the product does not

outweigh the magnitude of the danger. See Helene Curtis

Industries, Inc. v. Pruitt, 5 Cir, 1967, 385 F.2d S41: James,

Products Liability, 33 Tex. L. Rev. 114 (1955); Wade,

Strict Tort Liability of Manufacturers, 19 S.W.L.J. 5, 15

(1965); Keeton, Produets Liability-Inadequacy of Infor-

mation, 48 Tex.L.Rev. 398, 403 (1970). The fulerum for

this balancing process is the reasonable man as consumer

or as seller, Thus, a product is unreasonably dangerous

only when it is “dangerous to an extent beyond that con-

templated by the ordinary consumer who purchases it.”

Restatement (Second) of Torts, $ 402A, comment i. In

other words, for a product to be unreasonably dangerous,

“it must be so dangerous that a reasonable man would

not sell the product if he knew the risk involved”.?! Helene

20 As used in the Restatement, “defective” means “unreasonably

dangerous” ; it has no independent significance. Sce Wade, Strict

Tort Liability of Manufacturers, 19 S.W.L.J. 5, 14-15 (1965).

21 The consumer-oriented standard in the Restatement is essen-

tially identical to the seller-oriented standard in Helene Curtis

Industries ,Inc. v. Pruitt, supra. In Welch v. Outboard Marine

Corp., 5 Cir. 1973,...... F.2d...... [No. 72-1974, April 20, 1973] we

said :

We see no necessary inconsistency between a seller-oriented

standard and a user-oriented standard when, as here, each

turns on foreseeable risks. They are two sides of the same

A-17

Curtis Industries, Inc. v. Pruitt, 385 F.2d at 850. See

Wade, supra at 15: Keeton, Products Liability-Liability

Without Fault and the Requirement of a Defect, 41 Tex. L.

Rev. 855, 859 (1963).

Here, the plaintiff alleged that the defendants’ produce:

Was unreasonably dangerous because of the failure to give

adequate warnings of the known or knowable dangers in-

volved. As explained in comment j to section 402A, a seller

has a responsibility to inform users and consumers of

dangers which the seller either knows at the time the prod-

uct is sold. The requirement that the danger be reasonably

forseeable, or scientifieally discoverable, is an important

limitation of the seller’s liability.22 In general, “[t]he rule

of strict liability subjects the seller to liability to the user

or consumer even though he has exercised all possible care

in the preparation and sale of the products’. Section 402.4,

Comment a. This is not the case where the product is alleged

to be unreasonably dangerous because of a failure to give

adequate warnings. Rather, a seller is under a duty to

warn of only those dangers that are reasonably foresee-

standard. A product is defective and unreasonably danger-

ous when a reasonable seller would not sell the product if he

knew of the risks involved or if the risks are greater than a

reasonable buyer would expect. As Dean Wade has pointed

out, since the test for imposing strict liability is whether the

product. was “not reasonably safe”, this test characterizes the

seller’s or manufacturer’s conduct as well as the product. If

the defendant has actual or constructive knowledge of the

condition of the product, it would be unreasonable for him to

sell it. Wade, Strict Tort Liability of Manufacturers, 19 Sw.

L.J. 5, 15 (1965).

*2 Several commentators, including Dean Kenton, have argued that

the seller should be strictly liable if the sale of the product is

under circumstances that would subject someone to an unreason-

able risk in fact. Under this standard, the fact that the maker

was excusably unaware of the extent of the danger would be

irrelevant. See Keeton, P., Inadequacy of Information, 48 Tex.

L. Rev. 388, 404, 409 (1970).

A-18

able. The requirement of foreseeability coincides with the

standard of due care in negligence cases in that a seller

must exercise reasonable care and foresight to discover a

danger in his product and to warn users and consumers of

that danger. Davis v. Wyeth Laboratories, Inc., 9 Cir. 1968,

399 F.2d 121. See Basko v. Sterling Drug, Ine., 2 Cir. 1969,

416 F.2d 417, 427.

As the plaintiff has argued, insulation materials contain-

ing asbestos may be viewed as “anavoidably unsafe prod-

ucts”. As explained in comment k io section 4024 of the

Resialement, “wavoidably unsafe products” are those

which, in the present state of human knowledge, are in-

eapable of being made safe for their ordinary and intended

use, Strict liability may not always be appropriate in such

vases because of the important benefits derived from the

use of the produet. This is especially so with respect to

new drugs that are essential in treating disease but involve

a high degree of risk.2’ It niay also be so with respect to

other commereial products possessing beth waparalleied

utility and unquestioned danger. As a practical matter,

the decision to market such a product requires a balancing

of the product's utility against its known or foresceable

danger. But, as comment k makes clear, even when such

balancing leads to the conclusion that marketing is justi-

fied, the seller still has a responsibility to inform the user

or consumer of the risk of harm. The failure to give ade-

quate warnings in these cireumstances renders the product

unreasonably dangerous. See Alman Bros, Fara & Feed

Mill, Luc. v. Diamond Lab. Inc., 5 Cir. 1971, 437 Ftd 129);

Davis v. Wyeth Laboratories, Tac., 9 Cir, 1968, 399 Patd

121: Basko v. Sterling Drug, Inc., 2 Cir. 1969, 416 Fad 417;

25 See Merrill, Compensation for Prescription Drug Injuries, 99

Va. L. Rev. 1, 20-50 (1973); Keeton, P.. Products Liability-

Drugs and Cosmeties, 25 Vand. L. Rev. 137 (1972).

~

A-19

Sterling Drug, Inc. v. Yarrow, 8 Cir. 1969, 408 F.2d 978;

Sterling Drug v. Cornish, 8 Cir. 1966, 370 F.2d 82. The

rationale for this rule is that the user or consumer is en-

titled to make his own choice as to whether the products’

utility or benefits justify exposing himself to the risk of

harm, Thus, a true choice situation arises, and a duty to

warn attaches, whenever a reasonable man would want to

be informed of the risk in order to decide whether to expose

himself to it.

In Davis y. Wyeth Laboratories, Inc.. for exaniple, the

defendant manufacturer sold polio vaccine witheut warn-

ing of the statistical risk that one person in a million would

contract polio by taking the vaccine. The court held that the

manufacturer had a duty to warn the consumer of the

risks involved and that the failure to meet this duty ren-

dered the drug “unfit” and “unreasonably dangerous” with-

in the meaning of section 402A. The court stated:

In such cases, then, the drug is fit and its danger is

reasonable only if the balance is struck in favor of its

use. Where the risk is otherwise known to the consumer,

no problem is presented, since choice ix available.

Where not known, however, the drug ean properly be

marketed only in such faxhion as to permit. the

striking of the balance; that is, by full disclosure of

the existence and extent of the risk involved.

There will, of course, be eases where the personal

risk, although existent and knowa, is so trifling in

comparison with the advantage to be gained as to be

de minimus. Appellee so characterizes this case. It

would approach the problem from a purely statistical

point of view: less than one out of a million is just

not unreasonable. This approach we reject. When, in a

particular case, the risk qualitatively (e.g., of death or

major disability) as well as quantitatively, on balance

with the end sought to be achieved, is such as to eall

A-20

for a true choice judgment, medical or professional, the

warning must be given.

399 F.2d at 129-130.

So it is with the case at bar. The utility of an insulation

product containing asbestos miuay outweigh the known or

foreseeable risk to the insulation workers and thus justify

its marketing. The product could still be unreasonably

dangerous, however, if unaccompanied by adequate warn-

ines. An insulation worker, no less than any other produet

user, has a right to decide whether to expose himself to the

risk.

Furthermore, in eases such as the instant case, the manu-

facturer is held to the knowledge and skill of an expert.

This is relevant in determining (1) whether the manu-

facturer knew or should have known the danger, and (2)

whether the manufacturer was negligent in failing to com-

municate this superior knowledge to the user or consumer

of its product. Wright v. Carter Products, Ine., 2 Cir. 1957,

244 F.2d 53. The manufacturer’s status as expert Means

that at a minimum he must keep abreast of scientifie knowl-

edge, discoveries, and advances and is presumed to know

what is imparted thereby.** But even more importantly, a

manufacturer has a duty to test and inspect his product.

The extent of research and experiment must be commensu-

rate with the dangers involved. A product must not be made

available to the public without disclosure of those dangers

24.8; Keeton, Products Liability — Problems Pertaining to Proof

of Negligence, 19 S.W.L.J. 26, 30-33 | 1965).

25 Sp 1 Frumer & Friedman, Products Liability, § 6.01 [1] and

cases cited: Noel, Manufacturer's Negligence of Design or Di-

rections for Use of a Product, 71 Yale L. J. 816, 853 (1962). See

also Roginsky v. Richardson-Merrell, Inc., 2 Cir. 1967, 378 F.2d

832: Tinnerholm v. Parke-Davis & Co., S.D.N.Y. 1968, 285 KF.

Supp. 432. aff'd, 411 F.2d 48; Schnenbeck vy. Sterling Drug, Ine.,

D.D. Ark. 1968, 291 F. Supp. 368.

A-2]

that the application of reasonable foresight would reveal.

Nor may a manufacturer rely unquestioningly on others

to sound the hue and ery concerning a danger in its prod-

uct. Rather, each manufacturer must bear the burden of

showing that its own conduct was proportionate to the

scope of its duty.

We now turn to the ebarge in the present ease and the

defendants objections to it. The trial judge instructed the

jury in terms of both breach of warranty and. strict

liability in tort. He stated that strict liability could be

imposed only if the product was unreasonably dangerous

to the user or consumer at the time it was sold. He defined

“unreasonably dangerous as dangerous to an extent

“beyond that contemplated by [an] insulation contractor

or insulator {i.e. asbestos insulation worker] with know-

ledge available to them as to the characteristics of the

product™. Furthermore, the court stated that the danger

“must have been reasonably foreseen by the manufacturer”

and that the produet’s unreasonably dangerous condition

must have been the proximate cause of Borel’s injury.°

°6 The trial court stated, in part:

Now, turning our attention to the matter of the defenses

of the defendants in connection with the implied Warranty

or strict liability, you are charged that if there is any un-

reasonable risk or danger from using defendants’ products

containing asbestos, which risk or danger must be the risk

or danger beyond that which would be contemplated by in-

sulation contractor or insulator with the knowledge available

to them as to characteristics of the product, such unreason-

able risk or danger from using defendants’ product must

have been reasonably foreseen by the manufacturer. There

fore, if you find from a preponderance of the evidence that

Mr. Borel came in contact with the defendants’ product and

developed asbestosis thereafter and at such time of contact;—— >

the product containing asbestos manufactured by the de-

fendant and that the danger of the use of the said asbestos

seen by the manufacturer, then there could be no proximate

products by Mr. Borel could not have been reasonably fore-

A-22

The defendants first object to the court's use of breach

of warranty language in some parts of the charge. It is

argued that such terms a= “unmerchantable’, and “unfit

for ordinary purposes” may have led the jury to believe

that liability could be imposed simply because the product

caused harm in its ordinary and intended use.

Although we agree that a reference to “breach of war-

ranty” in a produet liability charge may be unnecessarily

confusing in some cases, sitiee that is the language of

contracts not torts, we are persuaded that no prejudice

resulted to the defendants from its use in this case. Con-

sistent with Shamrock Fuel & Oil Sales v. Tanks, the trial

court accurately instructed the jury on strict liability in

torts as defined in section 402 A of the Pestatement, With

cause and your verdict would be for the defendants. In other

words. there would be no proximate cause of the breach of

the warranty or striet liabilit, that would justify your find-

ine in favor of the plaintiff. but you would have to fine for

the defendants. Also. in connection with the implied war-

ranty theory. you are instructed that the burden of proof ts

on the plaintiff in this case. Before they are entitled to re-

cover any damages against any of the defendants to establish

by a preponderance of the evidence that the product sold by

the particular defendant or defendants was defective’ at the

time it was sold. Before a product can be found to be defee-

tive ii must establish that it was unreasonably dangerets to

the user of consumer at the time it was sold. You are further

instructed that the burden of proof is on the plaintiff te

establish also by a preponderance of the evidence not only

that the product was defective but also that the defect in the

product was a proximate catise of the death of Claretice

Borel,

By the term DEFECTIVE as used in this charge is

meant a condition not contemplated by the insulator, con-

tractor or ultimate user. Accordingly, you are instructed

that in the event plaintiff has failed to prove by a prepond-

erenee of the evidence the existence of a defect in the product

at which time the product was sold and that such defeet was

the proximate cause of the death of Clarence Borel, then

you cannot find for the plaintiff on the theory of breach of

implied warranty or strict liability and you must return a

verdict against the plaintiff and in faver of the defendants.

A-25

respect to breach of implied warranty, the court specifically

equated “unfitness” or “unmerchantability’ with the “un-

reasonably dangerous” standard of strict liability in tort.27

Viewing the charge as a whole, we think that the jury fully

understood that liability could be imposed only if the

product was unreasonably dangerous.

The defendants also contend tuat the trial court erred

in refusing to instruct the jury that liability could not be

imposed if the utility of the product outweighed the danger

involved. The trial court, however, did tell the jury that

liability could not be imposed unless the preduct was “un-

reasonably dangerous,” a concept that necessarily implies

a balancing of a product's utility against the danger,

Furthermore, as we noted earlier, even when suehi a bal-

aneing leads to the conclusion that marketing is justified,

the seller still has a responsibility to inform the user or

consuiner of the risk. The failure to give adequate warn-

ings in such circumstances can render the product wu-

reasonably dangerous. See Restatement (Second) of Torts.

$402A, comment k: Daris vo Wyeth Laboratories, Tue.

That was precisely the contention of the plaintiff in this

‘vase. We therefore find no error.

The defendants next contend that it was error for the

trial court to imply that the defendants had an independent

duty to test their product. As we have made clear, however,

the manufacturer’s duty to test his product is well-estab-

lished.*

Finally, the defendants contend that the district court

erred in refusing to instruct the jury that a product ean-

*7 Breach of warranty cases invariably speak in terms of fitness

for the particular purposes for which the products were sold.

This formulation parallels the “unreasonably dangerous” rule

applied in strict liability in tort cases. See Lartigue vy. R. J.

Reynolds Tobacco Co., 5 Cir. 1963, 317 F.2d 19, 37: Greenman

v. Yuba Power Prods., Ine., Cal. Sup. Ct. 1963, 377 P_2d 897.

28 See footnote 25.

A-24

net be unreasonably dangerous if it conforms to the reason-

able expectations of the industrial purchasers, here, the

insulation contractors. The defendants assert, in effect,

that it is the responsibility of the insulation contractors,

not the manufacturers, to warn insulation workers of the

risk of harm. We reject this argument. We agree with the

Restatement: a seller may be liable to the ultimate con-

sumer or user for failure to give adequate warnings. The

seller's warning must be reasonably caleulated to reach

such persons and the presence of an intermediate party will

not by itself relieve the seller of this duty. Sterling Drag

Co. x. Cornish, 8 Cir. 1966, 370 F.2d 82; Yarrow v. Sterling

Drug. & Cir. 1969, 408 F.2d 978; Noel, Products Defective

Because of Inadequate Directions or Warnings, 23 S.W.L.J.

(1969). In general, of course, a manufacturer is not liable

for miscarriages in the communication process that are not

attributable to his failure to warn or the adequacy of the

warning. This may oceur, for example, where some inter-

mediate party is notified of the danger, or discovers it for

himself, and proceeds deEberately to ignore it and to pass

on the product without a warning.’ But there is nothing im

the trial court’s charge in the present case to imply that

the seller or manufacturer would be liable in such a situa-

tion. To the contrary, the trial court fully instructed the

jury that the defect rendering the product unreasonably

dangerous must be the proximate cause of the plaintiff's

injury.

We conclude, therefore, that ihe trial court did not err

in instructing the jury on strict liability.

29 See Prosser. The Fall of the Citadel, (strict Liability to the

Consumer). 50 Minn. L. Rev. 791, 826-828 (1966). Where 2

product is extremely dangerous, however, the seller or manufae-

turer cannot rely upon the intermediate party to transmit 2

warning. See Prosser, id.; Noel, Products Defective Because of

inadequate Directions or Warnings, 24 S.W.LJ. 256 (1969).

Bex

A-25

Ill.

We now turn to the question whether the trial court erred

in denying the defendants’ motions for a directed verdict

and for judgment notwithstanding the verdict. In diversity

“ases, a federal rather than a state test is applied to deter-

mine whether there was sufficient evidence to create a jury

question. Planters Manufacturing Co. +. Protection Mut.

Ins, Co., 5 Cir, 1967, 386 F.2d 869: Helene Curtis Industries.

Tne. v. Pruitt, 5 Cir. 1967, 385 F.2d 841. In Boving Coa. v.

Shipman, 5 Cir, 1969, 411 F.2d 365, 374, we defined the test

as follows:

On motions for direeted verdict and for judgment

notwithstanding the verdict the Court should con-ider

all of the evidence — not just the evidence that sup

ports the non-mover'’s case — but in the light and with

ili reasonable inferences most favorable to the party

opposed to the motion. If the facts and inferences point

“0 sArongiy and overwhelmingly in faver of one party

that the Court believes that reasonable men could not

arrive at a contrary verdict, granting of the motions

is proper. On the other hand, if there ix substantial

evidence opposed to the motions, that is, evidence of

such quality that reasonable and fair-minded men in

the exercise of impartial judgment might reach dif-

ferent conclusions, the motions should be denied and

the case submitted to the jury.

An appellate court, of course, must serupuiously avoid

usurping the function of the jury by weighing conflicting

evidence and inferences or by judging the credibility of

Witnesses and then arriving at its own conclusion conceri-

ing the merits of the parties’ contentions. Rather, our task

is limited to determining whether there is a conflict in <ub-

stantial evidence sufficient to create a jury question.

A. First, we approach the question whether the danger

ie Borel and other insulation workers was foreseeable at

A-26

the time the products causing Borel’s injury were sold.

The defendants’ position is that they did not breach their

duty to warn because the danger from inhaling asbestos

ax not foreseeable until about 1968 and that, in view of

the long latent period of the disease, Borel must have con-

tracted asbestosis well before that date.

To begin, we note that the disease of asbestosis is cumu-

lative. Thus, both Borel’s earliest exposure to asbestos

dust, oceurring in the late 1930’s and his most recent ex-

posure, oecurring in 1°68, could have contributed to lis

overall condition. The defendants’ failure to warn of the

dangers of the expesures occurring in 1968 may have

resulted in an actionable injury to Borel. But even if it is

assumed that Borel’s condition was attributable principally

to his earlier exposures, the defendants argument still fails

since there is ample evidence in the record that the danger

of inhaling asbestos, including the disease of asbestosis,

was widely recognized at least as early as the 1930's, An

expert witness, Dr. Hans Weill, testified that prior to 1935

* of articles on

asbestos and its effect on man. Dr. Clark Cooper, an expert

witness for the defendants, stated that it was known in the

1920's that inhaling asbestos dust caused asbestosis and

there were literally “dozens and dozens’

that the danger could be controlled by maintaining a modest

level of exposure. Dr. Cooper testified as follows :

“Q. The state of knowledge in the 1930's, let’s say, in

your opinion was asbestosis as a disease known

about and recognized as a danger caused by inhaling

asbestos dust?

“A. Yes.

“Q. And would you say that would have been rather com-

mon knowledge known in the 1930's?

“A. Yes, I would say that. The answer to that would be

yes.”

A-27

As stated in our recital of the facts, several studies pub-

lished during the 1930's and 1940's reported the danger to

asbestos plant workers and others exposed to asbestos dust

and urged precautionary measures to eliminate hazardous

concentrations, The American Conference of Governmental

Industrial Hygienists, beginning in 1947, issued enidelines

suggesting threshold limit values for exposure to asbestos

dust. Even the Fleischer-Drinker report in 1945, relied on

by the defendants, cautioned that exposure to high concen-

trations of asbestos dust could cause asbestozie and recom-

mended the use of ventilation and respiratory protection

devices,

The evidence also tended to establish that none of the

defendants ever tested its product to determine its effect

on industrial insulation workers. Nor did any defendant

ever attempt to determine whether the exposure of insula-

tion workers or others to asbestos dust exceeded the

ACG. Ss recommended threshold limit values, or indeed,

whether those standards were accurate or reliable.

As previously mentioned, the foreseeability of the danger

inust be measured in light of the manufacturer's status as

an expert and the manufacturer's duty to test its product.

Ini these cirewmmstanees, we think the jury was entitled to

find that the danger to Borel and other insulation workers

from inhaling ashe-tos dust was foreseeable to the defen-

dants at the time the products causing Borel’s injuries

were sold.

The defendants next challenge the jury's finding that

their products were unreasonably dangerous for failure to

vive warnings, They cannot deny, however, that once the

danger became foreseeable, the duty to warn attached.

Davis v. Waeth Laboratories, lic. Were, the defeudants

gave ne warning at all. They attempt to ciremnvent this

A-28

finding by arguing, disingenuously, that the danger was

obvious. For present purposes, it is sufficient to note that

Borel testified that he did not know that inhaling asbestos

dust could cause serious illness until his dovtors advised

him in 1969 that he had asbestosis. Furthermore, we can-

net say that, as a matter of law, the danger was sufficiently

obvious to asbestos installation workers to relieve the de-

fendants of the duty to warn.

The jury found that the unreasonably dangerous condi-

tion of the defendants’ product was the proximate cause

of Borel’s injury. This necessarily included a finding that,

had adequate warnings been provided, Borel would have

chosen to avoid the danger. Daris v. Wyeth Laboratories,

Inc.; Charles Pfizer & Co. v. Branch, Tex. Civ. App. 1965,

365 S.W.2d 832.

B. Two defendants, Pittsburgh and Armstrong, argue

that, as to them, the jury’s finding of strict liability can-

not stand because it is inconsistent with the jury's finding

in a separate general verdict that they were not negligent.

As previously discussed, when a failure to give adequate

warning is alleged to have made a product unreasonably

dangerous, the standard for strict liability is essentially

similar to the standard for establishing negligence: the

seller or manufacturer has a duty to warn of foreseeable

dangers. In the present ease, the plaintiff sought to recover

on the basis of both negligence and striet liability in war-

ranty and tort. The trial court submitted the case to the

jury in the form of two general verdicts acompanied by

a special interrogatory on contributory negiigence. On the

negligence count, the jury found that Pittsburgh and Arm-

strong were not negligent in failing to warn of a foresee-

able danger, and on the strict liability count, that their

products were unreasonably dangerous because of the fail-

ure te warn of the same danger.

A-29

This inconsistency in the jury's verdicts, although puz-

aling, need not detain us. It hax long been the rule that

consistency in general verdicts is not required. Dann v.

Uuited States, 1932, 284 U.S. 391, 52 S.Ct. 180. 76 Ld.

309. “Whether the jury’s verdict wa. the result of care-

lessness or compromise or a belief that the responsible

individual should suffer the penalty . 2. is imunaterial.

Juries may indulge in precisely such motives or vagaries.”

Vuited States vy. Dotterweich, 1943, 320 US. 277, 279. 64

S.Ct. 134, 88 L.Ed. 48. Thus, even if the general verdicts

are internaily inconsistent, such is the jury’. prerogative

if, as we have found, there is evidence to support the find-

ing reached by the jury.

(. We next consider whether there was substantial

evidence to support the jury’s finding that each defendant

Was the cause in fact of injury to Borel. The traditional

rule is that a defendant's conduct is the cause of the event

if it was a substantial factor in bringing it about. Proxse:.

Law of Torts © 41 at 240 (3ed 1971): Second Restatement

of Torts, 65431, 433 Malone, Ruminations on Cause-in-

Fact 9 Stan. L. Rev. 60 (1956): Green, The Causal Rela-

tion Issue, 60 Mich. L. Rev. 543 (1962). Whether the de-

fendant’s conduct was a substantial factor ix a question

for the jury, unless the court determines that reasonable

men could not differ.

In the instant case, it is impocsible, as a practical matter,

to determine with absolute certainty which particular ex-

posure to asbestos dust resulted in injury to Borel. It is

undisputed, however, that Borel contracted asbestosis from

inhaling asbestos dust and that he was exposed to the

products of all the defendants on many oceasions. It was

also established that the effect of exposure to asbestos

dust is cumulative, that is, each exposure may result in an

additional and separate injury. We think, therefore, that

A-30

on the basis of strong circumstantial evidence the jury

could find that each defendant was the cause in fact of

some injury to Borel.

Relying on expert testimony that asbestosis does not

usually manifest itself until fifteen, twenty, or even twenty-

five years after initial exposure, Pittsburgh Corning Com-

pany and Armstrong Cork Company contend that they

cannot be liable beeause Borel was not exposed to their

products until after 1962 and 1966 respectively. As we have

pointed out, however, the length of this latent period varies

acording to individual idiosyneraey, duration and intensity

of exposure, and the type of asbestos used; in some cases

the effect of the exposure may manifest itself in less than

five or ten years. Thus, even the most reeent exposures

could have added to or accelerated Borel’s overall condi-

tion.

IV.

Having concluded that each defendant was the cause in

fact of some injury to Borel, we now come to the question

of apportionment of damages. In general, a defendant is

liable only for that portion of the harm which he in fact

caused. A problem arises, however, where, as here, several

causes combine to produce an injury that is not reasonably

capable of being divided. In the instant case, the trial court

resolved this issue by holding the defendants jointly and

severally liable for the entire harm. Asserting error, the

detendants argue that if the injury cannot be reasonably

apportioned, the plaintiff must bear the entire loss unless

it can be shown that the tortfeasors acted in concert or

with unity of design.

The defendants’ argument is best illustrated by Sun Oil

v. Robicheaurx, Tex. Civ. App. 1930, 23 S.W.2d 713, a case

in which several defendants, acting independently, were

polluting a bayou from which the plaintiff was taking water

A-31

for irrigation. The court held that an action at law for

damages could not be maintained jointly against the de-

fendants and that each was liable only for the part of the

injury which he caused. The court stated:

Under such circumstances each tort-feasor is liable

only for the part of the injury or damages caused by

his own wrong; that is, where a person contributes to

an injury along with others, he must respond in dam-

ages, but if he acts independently, and not in concert of

action with other persons in causing such injury, he

is liable only for the damages which direetly and

proximately result from his own act, and the fact that

it may be difficult to define the damages caused by the

wrongful act of each person who independently con-

tributed to the final result does not affect the rule.

25 S.W.2d at 715.

The effect of the Robicheaus rule was to make it impos-

sible to join several wrongdoers whose independent acts

caused an injury which, although theoretically divisible,

was indivisible as a practical matter. The burden was

placed on the plaintiff to prove with reasonable certainty

what portion of the total damage was attributable to each

defendant. Failing that, recovery would be denied even

though it was undisputed that each defendant caused some

harm.

In 1952, the Robicheaus ease was expressly overruled

hy the Texas Supreme Court in Lauders v. East Texas Sell

Water Disposal Co,, 248 S.\W.2d 731." Tn that ease, an oil

company and a salt water disposal company each owned

pipe lines rumming near the plaintiff's land. At about the

same time, each pipe line broke, pouring oii and saltwater

onto the plaintiffs land and into his lake. The plaintiff

See Note, 31 N.C. L. Rev. 237 (1953); 31 Texas L. Rev. 226

(1953).

A-32

sought to hold the defendants liable for the entire harm. In

upholding the joinder of the two defendants, the court

noted that prior cases “seem to have embraced the phil-

osophy ... that it is better that the injured party lose all

of his damages than that any of the several wrongdoers

pay more of the damages than he individually and sepa-

rately caused, If such has been the law, than from the stand-

point of justice it su«ld not have been; if it is now, it will

not be hereafter”. 248 S.W.2d at 734. The court then an-

nounced the new rule:

Where the tortious acts of two or more wrongdoers

join to produce an indivisible injury, that is, an injury

which from its nature cannot be apportioned with rea-

sonable certainty to the individual wrongdoers, all of

the wrongdoers will be held jointly and severally liable

for the entire damages and the injured party may

proceed to judgment against any one separately or

against all in one suit. Jd.

The effeet of the Landers case may be stated as follows:

Where several defendants are shown to have each caused

some harm, the burden of proof (or burden of going for-

ward) shifts to each defendant to show what portion of

the harm he caused. If the defendants are unable to show

any reasonable basis for division, they are jointly and

severally liable for the total damages.*!

The defendants attempt to distinguish Landers by as-

serting that it applies only to situations where the tortious

acts occur simultaneously. As the court noted in Landers,

however, there was no allegation in the plaintiffs com-

plaint that the defendants tortious acts occurred at the

same titne. The court specifically refused to limit its hold-

“1 See Prosser, Law of Torts, § 52 at 319-320 (4ed 1971). Professor

Wigmore suggested a similar rule long ago. See Wigmore, 17

Ill. L. Rev. 458 (1923).

A-33

ing tv causes in which “the negligence of the wrougdoers

contributing to the injury was operating simultaneously”.

245 S.Wo2d at 725. Later Texas eases have also applied the

Landers rule to pou-simultaneous tortious acts."? See Con-

tinental Elec, Mig. Co.v. Navajo Freight Lines, luc. Cir.

1971, 447 Pitd 1174,

Applying these principles to the present case, we con-

clude that the defendants may be held jointly and severally

liable for the total damages.

=:

We now turn to a consideration of the defensive i<sues

raised in the trial court's charge. The principal issue on

appeal is whether the trial court properly instructed the

jury as to which forms of contributory negligence or as<-

sumption of risk ave defenses to a strict liability action.

The defendants contend that the plaintiff's recovery should

have been barred by both the dvetrine of rolenti non fit

injuria and contributory negligence. In brief, it is argned

that Borel assumed the risk when he continued in his em.

ployment as an insulator after he knew and appreciated

the danger from the defendants’ product.”

Volenti non fit injuria, an ancient maxim meaning that no

wrong ix done to one who consents, ix essentially a form of

Sec, ¢.g.4 Riley v. Industrial Finance Service, 1957. 302 S.W.2d

406; Kirby Lumber Corp. v. Walters. Tex. Civ. App. 1955, 277

S.W.2d 796.

* For a discussion of this topic, see Noel. Abnormal Use, Contribu-

tory Negiigence, and Assumption of Risk, 25 Vand. L. Rev. 93

(1972) ; Epstein, Products Liability: Defenses Based on Plain-

tiff’s Conduct, 1968 Utah L. Rev. 267; Keeton, Assumption of

Products Risk, 19 S.W.L.J. 61 (1965) ; Greenhill, Assumption

of Risk, 16 Baylor L. Rev. 111 (1964); Keeton. Assumption of

Risk and the Landowner, 22 La. L. Rey. 108 (1961); Keeton,

Assumption of Risk in Products Liability Cases. 22 La. 1, Rev.

122 (1963).

A-34

assumption of risk. Under Texas law, the volenti doctrine

has four elements: (1) the plaintiff knows the facts con-

stituting a dangerous condition; (2) he knows the condition

or activity to be dangerous; (3) he appreciates the nature

or extent of the danger; and (4) he voluntarily exposes

himself to the danger. Halepeska v. Callihan Interests, Inc.,

Tex. Sup. 1963, 871 S.W.2d 368, Texas courts have held that

volenti is a subjective standard: the pleintiff must know,

understand, and appreciate the danger, and consent to

expose himself to it. J. @ W. Corp., Inc. v. Ball, Tex. Sup.

Ct. 1967, 414 S.W.2d 148.

In its most traditional form, contributory negligence

consists of the plaintiff's failure to exercise the care of a

reasonable person for his own protection. It may overlap

with re/enti in situations where the plaintiff has been con-

tributorily negligent in proceeding to encounter an unrea-

sonable risk. This form of contributory negligence differs

from rolenti in two respects. First, contributory negligence

is an objective rather than a subjective standard. The plain-

tiff ix required to have the knowledge, understanding, and

judgement of an ordinary reasonable man and must exercise

due care to discover and understand the defect or danger.

Second, justification, in terms of the reasonableness of

the plaintiff's conduct, is an important element. The plain-

tiff is not contributory neglient unless his conduct in en-

countering the danger was unreasonable. Thus, unlike

relenti, the contributory negligence doctrine requires a

balancing of the utility of the plaintiffs conduct against the

magnitude of the danger. See generally, (Second) Restate-

ment of Torts (6 463, 466 (1964); Restatement (Second) of

Torts, (° 496A-G (Tent. Draft No. 9, 1965).

Another form of contributory negligence consists of vol-

untary and unreasonable conduct in encountering a known

A-35

risk. As found in comment n to section 402A of the Re-

statement, it represents a hybridization of volenti and

traditional contributory negligence. Applying a subjective

standard, the jury must find the first three elements of

volenti: the plaintiff must have had actual knowledge,

understanding, and appreciation of the danger. With re-

spect to voluntariness, however, the jury must find that the

plaintiff's action was both voluntary from a subjective

standpoint and unreasonable from an objective standpoint.

The applicability of a volenti or contributory negligence

defense to a strict liability action is unclear under Texas

law. The leading Texas decision concerning the strict lia-

bility action is Shamrock Fuel & Oil Sales v. Tunks, Tex.

Sup. Ct. 1967, 416 S.W.2d 779. In that case, the plaintiff

sought damages for injuries sustained while using adulter-

ated kerosene. The defendants asserted that recovery

should be denied because of the plaintiff's contributory

negligence in failing to discover the dangerous nature of

the adulterated kerosene or to guard against the possibility

of its existence. Following in part the position taken in

comment n to section 402A of the Restatement,®> the Texas

#4 Section 402A of the Second Restatement of Torts states, in part:

n. Contributory negligence. Since the liability with which

this Section deals is not based upon negligence of the seller.

but is strict liability, the rule applied to strict liability cases

(see § 524) applies. Contributory negligence of the plain-

tiff is not a defense when such negligence consists merely in

a failure to discover the Gefect in the product, or to guard

against the possibility of its existence. On the other hand the

form ef contributory negligence which consists in voluntarily

and unreasonably proceeding to encounter a known danger,

and commonly passes under the name of assumption of risk,

is a defense under this Section as in other cases of strict

liability. If the user or consumer discovers the defect and is

aware of the danger, and nevertheless proceeds unreasonably

to make use of the product and is injured by it, he is barred

from recovery.

3° The Court also quoted Dean Prosser with approval:

“There has been ostensible, and quite superficial, dis-

A-36

Supreme Court held that such negligence was not a defense

to a strict liability action.

Later Texas decisions have re-affirmed the holding in

Shamrock but have left unanswered what other forms of

contributory negligence, assumption of risk, or rolenfi are

a defense to a strict liability action. See McKisson vy. Sales

Affiliates, Inc. Our Erie ruminations in Messick v. General

Motors Corp., 5 Cir. 1972, 460 F.2d 485, however, have led

us to predict that Texas will adopt the position taken in

comment n to section 4024 of the Restatement that contri-

butory negligence or assumption of risk is a defense to a

strict liability action only when it consists of a voluntary

and unreasonable conduct to encounter a known risk. In

Messick, the plaintiff continued to drive his new ear even

after a private mechanie told him that its defective steer-

ing and suspension systems would cause his death. When

the ear later ran off the road, the plaintiff sued the manu-

facturer to recover damages for personal injuries sustained

agreement over whether contributory negligence is available

as a defense where the action is one for breach of warranty.

A few decisions have said flatly that it is not. The greater

nimber have said quite as flatly that it is. The conflict is,

however, more apparent thay real. ti the cases are examined,

it readily appears that those which refuse to allow the de-

fense have been cases in which the plaintiff negligently failed

to discover the defect in the preduct. or to guard against the

possibility of its existence. They are entirely consistent with

the general rule that such negligence is not a defense to an

action founded upon strict liability. Those which have per-

mitted the defense all have been cases in which the plaintiff

has discovered the defect and the danger, and has proceeded

nevertheless to make use of the product. They represent the

form of contributory negeligence which consists of deliber-

ately and unreasonably proceeding to encounter a known

danger, and overlaps assumption of risk. They are quite con-

sistent with the general rule that this is a defense to strict

liability. There are only a few cases which have recognize 4

the distinction; but it seems quite clear that it is made ja

fact.” (Prosser, Law of Torts (Sed! 6565.

416 S.\W.2d at 743.

A-37

in the accident. The plaintiff alleged that the defendant was

strictly liable because the car's defeets rendered it unrea-

sonably dangerous. After the jury returned a verdict in

the plaintiffs favor, the defendant appealed, arguing that

rolenti was established as a matter of law by the plaintiff's

voluntary decision to continue using the ear. In affirming,

this Court held that continued use of a product known to

be defective is a defense to a strict liability action only when

the continued use is uhreasonable. The court stated: “The

limits of a manufacturer's liability for releasing a defective

and unreasonably dangerous product in the rolenti aren

are that the plaintiffs consent to ineur the risk has been

voluntarily given and is objectively unreasonable. The

plaintiff at bar was entitled to vo to the jury with the ques-

tion of whether his consent was voluntary or was the prod-

uct of duress of circumstances and unreasonable.” 460 F.2d

at 494.

We now turn to the trial court's instructions in the pres-

ent ease. The trial court, informing the jury that assump-

tion of risk was a defense to a strict liability action, stated

as follows: \

| T Jhe defendants contend that the deceased, Mr. Bore}.

knew of the dangerous —— of the asbestos produet

manufactured by the defendants in connection with his

insulation work and appreciated the danger and with

such knowledge voluntarily assumed the risk by con-

tinuing his employment. Kurther, that this knowl-

edge of the danger of the insulation was known to Mr.

Borel’s contractor or employer. Therefore, the Court

would instruct you that if you find from a preponder-

ance of the evidence that the deceased knew of the

dangerous nature of the asbestos products with which

he was working and appreciated the danger of work-

ing with such products or that he had knowledge

through his contractor of the dangerous natvre of the

A-38

product and that ie assumed the risk by continuing

his work, then you would find against the plaintiff and

in favor of the defendants.

In effect, the trial court instructed the jury that rolenti,

consisting of voluntary conduct in encountering a known

and appreciated danger, is a defense to a strict liability

action, This was error since, as we have held, contributory

negligence or assumption of risk is a defense to a strict

liability action only if the plaintiff's conduct is both vol-

untary aid unreasonable, Messick v. General Motors Corp.,

supra; Restatement (Second) of Torts, ¢ 402A, comment

(n); Prosser, Law of Torts, § 102. The trial court’s charge

was overly favorable to the defendants. Despite this error,

the jury still found that Borel had not assumed the risk

even under the harsh rolenti doctrine. Reversal of the

jury's verdict, therefore, is not required.

The defendants contend, however, that they are entitled

to judgment as a matter of law even if the Restatement

standard had been correctly applied. We disagree. There

ix strong evidence in the record that Borel never actually

knew or appreciated the extent of the danger involved.

Borel testified that he never realized that inhaling asbestos

dust could cause serious illness until his doctors first

diagnosed his condition as asbestosis in 1969. Nor can we

say that the danger was so obvious that Borel should be

charged with knowledge as a matter of law. Malepeska vy.

Callihau Interests, luc. supra; Schiiter v. Rice, Tex. Sup.

192, 246 S.W.2d G07. Furthermore, there was evidence

that Borel’s decision to continue in his employment was

neither voluntary nor unreasonable. Messick v. General

Motors Corp., supra, In these circumstances, we find no

cause to invade the province of the jury.

We next consider whether the trial court erred in in-

structing the jury that none of the alleged acts of con-

A-39

tributory negligence was a defense toa strict liability action.

The court described the acts of contributory negligence as

follows:

In thix connection, the defendants contend that the

deceased was negligent in failing to use a mask and

respirator for protection from dust containing some

asbesios; in failing to request his employer to furnish

blowers to remove dust Jaden air: in working in ashes-

tos dust Jaden air with full knowledge that he was

inhaling such dust laden air: in continuing to work

With insulation material containing some asbestos after

he knew or in the exercise of ordinary care should have

known that it was affecting his health.

The defendants assert that Borel’s allegedly negligent

failure to wear a respirator constituted a misuse of the

product that bars recovery.

“Misuse” involves a use of the product in a manner not

reasonably foreseen by the seller or manufacturer” The

most common form of misuse is a failure to follow ade-

quate directions or warnings accompanying the product.

In Procter & Gamble Manufacturing Co. ¥. Langley, Tex.

Civ. App. 1967, 422 S.W.2d 773, for example, the plaintiff

read and understood the instrnetions accompanying a

home permanent hair wave produet but nevertheless failed

to follow them in several important respeets. When injury

resulted, the plaintiff sued the manufacturer, the wholesale

distributor, and the retail seller for breach of Vaplied war-

ranty. The court held that the plaintiff's violation of the

plain instructions and warnings was a misuse of the product

and constituted a defense to her cause of action. On re-

hearing, the court stated:

We do not believe that the strict liability doctrine

means [that]... a consumer may knowingly violate

36 Sec Noel, note 32 supra.

A-40

the plain, unambigueus instructions and jgnere the

warnings, then hold the makers, distributors and

sellers of a product fiable in the face of the obvious

misuse of the product. Appellees brought their suit on

the theory of implied warranty. We agree that the

product carried an implied warranty of fitness, but

such warranty existed only if the product was used in

accordance with directions. The implied warranty did

not apply when the product was misused, as it undis-

puiediy was in this case. 422 S.W.2d at 780.

Similarly, in MeDeritt v. Standard Oil Co, of Texas,

1968, 391 F.2d 364, the plaintiff sued an automobile tire

retailer to recover damages for injuries sustained when his

automobile tires failed and the ear left the road. There

was evidence that the plaintiff was provided with manu-

facturer’s instructions regarding proper tire size but that

he purchased an improper size. In addition, the reeord

indicated that the vehicle was driven with air pressure in

the tires at times well above, and at times well below, the

recommended pressure as set out in the published manuals.

There was also evidence that the vehicle was driven at

excessive speeds and over rough terrain. The court, con-

strung Texa< law, held that the plaintiff's actions con-

stituted a misuse of the product and was a defense to a

strict liability action.

In the case at bar, we are not confronted with a failure

to follow adequate instructions or warnings. Indeed, the

evidence tended to establish that the defendants gave no

instructions or warnings at all. They never suegested that

respirators should be worn by insulation workers or pro-

vided any other directions as to the produet’s use. Nor

are we confronted with any other type of conduct that was

not reasonably foreseeable by the defendant manufacturers.

From all that appears, Borel used the defendants’ product

exactly for its intended purpose. Rather, the defendants

A-41

allege merely that Borel was contributorily negligent in

failing to use a respirator. This form of contributory neg-

ligence amounts to a failure to discover a defect in the

product or to guard against the possibility of its existence

and is not a defense to a strict liability action. Shamrock

Fuel & Oil Sales v. Tanks, MeNisson v. Sales Affiliates, Ine.

We therefore find no error in the trial court's charge.

The defendants also assert that the trial court’s instrue-

tions to the jury were confusing and ambiguous in some

parts. The trial court’s charge must be read as a whole and

not as if each sentence were a solitary verbal phenomenon

existing in an otherwise empty vacuum. The test is not

whether the charge wes faultless in every partienlar but

whether the jury was misled in any way and whether it

had understanding of the issues and its duty to determine

those issues. Gearhart v. WSAZ, Ine., WAST K.D.Ky., 150

I. Supp. 98, aff'd 254 F.2d 242; Miller v. Pacific Mut. Life

Ins. Co., D.C. Mich 1955, 17 FLR.D. 121, aff'd 228 F.2d 889,

On reading the trial court's charge in this case, we find

that it meets that standard

The defendants further complain because the trial court

refused to submit special interrogatories to the jury on

several issues, ineluding assumption of risk, but instead

submitted the ease on a general verdict. Rule 49 of the

Federal Rules of Civil Procedure, however, gives the trial

court wide diseretion in determining the wording and forn

of verdicts. In the present case, we cannot say that the

trial court abused its diseretion. See Car v. General lus,

Corp., 5 Cir, 1947, 159F.2d 985; De Eugenio v. Allis-Chal-

mers Mfg. Co., 3 Cir. 1954, 210 F.2d 409; Teras & PP. Ry.

Co. v. Friffen, 5 Cir. 1959, 265 F.2d 489.

A-42

VL

We are next met with the contention that Borel’s action

is barred by the statute of limitations The record shows

that Bore! filed a claim under the Texas Workmen's Com-

pensation Act,’? Tex. Civ, Stat. art. 8307 ef seq., on January

17, 1960. After the Industrial Accident Board approved a

settlement award on July 31, 1969, Borel filed the present

damage action on October 20, 1969. Under Texas law. an

action for personal injuries nust be commenced and prose-

cuted within two years after the cause of action acerued.

Tex. Civ. Stat. art. 5526. The defendants’ position is that a

cause of action accrues at the time of the injury and that

the only effect of filing a claim under the Workmen's Com-

pensation Act ix to toll the statute of limitations until the

Board issues a tinal order approving the award. The plain-

tiff, on the other hand, contends that when an injured em-

ployee successfully pursues his remedy for compensation

under the Act, the statute of limitations for his damage

action against a third party (that is, a party other than

“? The Texas Workmen's Compensation Act operates in the follow-

ing manner, Where a party other than the employer is legally

liable for an injury compensable under the Texas Workmen's

Compensation Act, the employee has the option of either pro-

ceeding at common law against that third party to recover dam-

ages or under the Act against the employer's insurance carrier,

the Texas Employers’ Insurance Association. Hf he elects first to

pursue his remedy at common law against the third party, the

employee is not entitled to any compensation under the Act and

must bring his suit within two years after the cause of action

averues. If he elects to pursue his remedy under the Act, the

employee must file a claim for compensation with the Industrial

Accident Board within six months after the oecurrence of the

injury or the first manifestation of an occupational disease. Lf

good cause is shown, however, the Board may waive strict com-

plianee with the six month requirement. After the Board has

issued a final order, the employee may then pursue his remedy

at common law against the third party. Texas Civ. Stat. art.

5307. sec. 4a, 6a.

A-43

his employer) does not begin to run until the Board issues

its final order.

The Texas Supreme Court considered this jasue in

Campbell y. Souford Chemical Co., W72, 486 SW2d O82.

In that case, the employee, Campbell, filed a damage action

on May 15, 1969, against a third party, Sonford, for per-

sonal injuries sustained in the fall and winter of 1064 and

the <pring of 1965. The compensation carrier for Campbell's

employer intervened in order to exercise its subrogation

rights under the Act for amounts previously paid to (aniyp-

bell. Sonford moved for summary judgment on the cround

that the action was barred by the two vear statute of limi-

lations since the injuries occurred in 164 and Canipbell

had not filed his claim with the Industrial Accident Board

until September 8, 1967. In his answer, Campbell asserted

that the action was timely because it was filed about a week

after the Board's final order on May 7. 1269. The trial court

granted Sonford'’s motion to disiniss the action.

In reversing the trial court's decision. the Texas Supreme

Court heid that the statute of limitations “runs against the

carrier of the employee in third-party actions authorized

by section 6a fof the Workmen's Compensation Aet| from

the date of the payment of the award of the Industrial

Accident Board or the entry of final judement acainst the

carrier." The Court stated the Texas rule as follows:

When a claimant elects to proceed under workmen's

compensation statutes and qualifies for an award there-

“An employee is still subject to the requirement that elim be

filed with the Board within six months after the occurrences of

the injury or the first manifestation of an ocenpational disease

Texas Civ, Stat. art. 8207. see. da. dn Camphell, the Board ex-

cused the plaintiff from striet compliance with the six month

rite after good cause was shown for the delay. In the present

case, the record does not indicate whether this issue was raised

before the Board.

A-44

under, the cause of aetion does not accrue against a

third party until the amount of the award made by

the Industria! Accident Board is paid by the carrier

or until the claimant obtains a final judgment in a

court of competent jurisdiction against the carrier.

When either of these events oceur, the cause of action

matures against the third party and the suit author-

ized by section 6a must be filed on such cause of action

either by the carrier or by the insured within two

years from that date.

Other Texas cases support this interpretation. See Mourn-

ing ¥. Crown Stevedoring Co., Tex. Civ. App. 1967, 417

S.W.2d 725 (writ ref'd mer.e.); Judice v. Sumner Sollitt Co.

of Teras, Tex. Civ. App. 1961, 346 S.W.2d 135 (writ ret'd

n.r.e.); Thompson v. Graham, Vex. Civ. Brooks v. Lucky,

Tex. Civ. App. 1957, 308 S.W.2d 273 App. 1958, 318 S.W.2d

102 (writ ref"d ure.) : Brooks vy. Lucky, Tex. Civ. App. 1957,

308 S.W.2d 273 (writ ret’d ne); Teras Employers’ Ins.

Ass'n vy. Teras & P. Ry. Co., Tex. Civ. App. 1939, 129 S.W.2d

646 (writ dism'd jdgmt cor.): Fidelity Union Casualty Co.

v. Texas P. & L. Co., Tex. Civ. App. 1931, 35 S.W.2d 782

(writ ref’d).

In the case at bar, the Board issued its final judgment

approving the settlement award on July 31, 1969, and the

plaintiff filed his damage action a few months later, on

October 20. Under the Campbell case, therefore, this action

is not barred by the statute of limitations.

Even if it is assumed that the defendants are correct in

contending that the Workmen’s Compensation Act merely

tolls the statute of limitations, the present action is still

not barred. The defendants assert that a cause of action

acerues at the time of the injury and that Borel, having

been exposed to asbestos dust since 1936, must have con-

tracted asbestosis long before 1969, the date this action

A-45

was filed. Alternatively, it is argued that each injurious

exposure Was a separate tort, resulting in the acerual of

a new cause of action, and that Borel cannot recover for

any exposure to asbestos dust occurring before 1967.

In Urie v. Thompson, 1949, 337 U.S. 170, 69 S.Ct. 170, 93

L.Ed. 1282, the Supreme Court considered a similar ques-

tion involving a locomotive fireman who had contracted sili-

eosis, The defendant urged that the action was barred by

the three year statute of limitations imposed by the Federal

Employers’ Liability Act. Rejecting this interpretation, the

Court held that the cause of action did not accrue until the

piaintiff either knew or had reason to know of the disease.

Tbe Court stated:

[Any other rule] would mean that at some past mo-

ment in time, unknown and inherently unknowable

even in retrospect, [the plaintiff] Urie was charged

with knowledge of the slow and tragic disintegration

of his lungs; under this view Urie’s failure to diagnose

within the applicable statute of limitations a disease

whose symptoms had not yet obtruded his conscious-

ness would constitute waiver of his right to compen-

sation at the ultimate day of discovery and disability.

92 L.Ed. at 1292.

In cases involving similar injuries resulting from CX PO-

sures to deleterious substances over a period of time, courts

have consistently held that the cause of action does not

accrue until the effeets of such exposures manifest them-

selves. Associated Indemnity Corp. v. Industrial Accident

Commission, Cal. S.Ct. 1932, 12 P.2d 1075: United States

v. Reid, 5 Cir, 1958, 251 F.2d 691. This principal is ana-

logous to the “discovery rule” applied in medical malprac-

tice cases, which provides that the cause of action does not

accrue until the injury is discovered or in the exercise of

reasonable diligence should have been discovered. See Gad-

A-46

dis v. Smith, Tex.S.Ct. 1967, 417 S.W.2d 577 (citing Urie v.

Thompson with approval). Texas courts have applied this

rule in many other contexts.”

Iiere, Borel testified in his deposition that he did not

know that he had asbestosis until surgery was performed

on March 7, 1969. No doctor previously examining Borel

had diagnosed his condition as asbestosis. Borel filed his

action seven months after he was informed of his condi-

tion, The trial court determined that the action was filed

timely and refused to submit the issue to the jury, Since

there is no substantial evidence opposing the court’s find-

ings, we conclude that it did not err on this point.

VII.

The trial court determined that the total amount of

damages was $79,436.24. Since four of the ten defendants

named in the original complaint had settled before trial,

paying a total of $20,902.20, the trial court rendered judg-

ment jointly and severally agains. the remaining six de-

fendants for the balance of $58,534.04. The defendants now

argue that the trial court shouid have given each defend-

ant named in the original complaint 2 prorata credit of

four-tenths of the total amount of damages leaving a

balance of $46,669.98 to be rendered against the remaining

six deferdants. The full credit methcd used by ine trial

court, however, was one of the methods of computing dam-

ages initially suggested by the defendants. Furthermore,

the defendants have failed to show how the full credit

method results in any unfairness to them. In these cir-

cumstances, we conclude that the trial court properly de-

termined the amount of damages.

39 See, e.g., Wise v. Anderson, Tex. Sup. Ct. 1962, 359 S.W.2d 876

(fraud) ; Beck v. American Rio Grande Land & Irrigation Co.,

Tex. Civ. App. 1931, 39 S.W.2d 640 (writ ref’d).

A-47

VIII.

It is also contended that the trial court erred in ruling

on certain evidentiary matters. The first concerns the trial

court’s decision to admit into evidence, over defendants’

‘objection, several cards that Borel had used to refresh his

memory while his disposition was being taken. The card

contained the names of various products manufactured by

the defendants and the dates and locations when Borel had

used each product. The defendants renew their objection

that the cards were inadmissible hearsay.

In general, a writing used to refresh a witness’s memory

ix not testimony and is inadmissible when offered by the

Witness’s party. This does not mean, however, that it is

always error for the trial court to permit the jury to inspect

such a writing. It tay be admitted, for example, when

offered by the opposing party or when the jury on its own

motion requests to see it. It may also be admitted when

the trial court determines that its inspection would assist

the jury in understanding the evidence and would not be

prejucicial to the opposing party.” The rules on admis=i-

biliiv of such writing “should not be treated as dogmas of

inherent efficiency. They are merely crude rules of thumb

.... The trial court’s discretion should control”. Wigmore,

Evidence, © 764 (Sed).

During his thirty-three years as an indusirial insulator,

Borel was employed for varying periods at many locations

and used several different products containing asbestos.

The six defendants manufacture a wide variety of products

under different brand-names. In these circumstances, the

trial court could justifiably believe that the jury m‘¢ht

” See, og... MeCarthy v. Boston & M. RLR.. NLIL Sup. Ct. 1942, 27

Alt. 2d 97; Watkins v. Holmes, NIL Sup. Ct. 1945. 35 Ath 2d

395, Braden Winch Co. v. Surface Equipment Co.. Okla. Sup.

Ct. 1946, 165 P.2d 646.

A-48

easily be confused as to when and where Borel had used

each of the defendants’ products. This situation was aggra-

vaied by the fact that Borel had died before trial and only

hix earlier deposition was available. The defendants liave

not shown that they were prejudiced by the trial court's

ruling. We therefore find no error.

The defendants contend that the trial court erred in

refusing to admit a statement made by Borel on June 4,

1969, in an application filed as part of his workmen’s com-

pensation claim. The statement read: “Although | became

ill on the last job I worked, the fact is that I have. worked

as an insulator for 33 years, subject to the hazards of the

job and I eannot truthfully say when L contracted asbes-

tosis.” The trial court ruled that it was not an admission

and therefore inadmissible hearsay or opinion. After

carefully examining the record, ++ eannot say that the

trial court abused its discretion in so ruling or that the

error, if any, was prejudicial to the defendants.

IX

In reaching our decision in the case at bar, we recognize

that the question of the applicability of Section 402A of the

Restatement to cases involving “occupational diseases” is

one of first impression. But though the application is novel,

ihe underlying principle is ancient. Under the law of torts,

a person has long been liable for the foreseeable harm

caused by his own negligence. This principle applies to the

manufacture of products as it does to almost every other

area of human endeavor. It implies a duty to warn of fore-

seeable dengers associated with those products. This duty

to warn extends to all users and consumers, including the

common worker in the shop or in the field. Where the law

A-49

has imposed 2 duty, courts stand ready in proper cases to

enforce the rights so created. Here, there was a duty to

speak, but the defendants remained silent. The district

court’s judgment does no more than hold the defendants

liable for the foreseeable consequences of their own

inaction.

For the reasons stated, the decision of the district court

is

AFFIRMED

A true copy

Test: EKpwary W. Wapsworrr

Clerk, U.S. Court of Appeals,

Fifth Circuit

By Louise Wolf, Deputy

New Orleans, Louisiana

July 11, 1974

1 mn

sh he cae Ake

A-50

Crarexce BOREL, Piacxtirr-ApreLier,

Ve

Fisresoarp Parer Propvets Corporation eT AL..

Derexpants-ApreLLanxts, NatioxaL Surety Conporatiox,

Ixtervienor-APPELLEE.

No. 72-1492.

U srrep Strates Covrr or Arrears,

Firra Cinecrr.

May 13, 1974.

Action by insulation worker against manufacturers of

insulation materials containing asbestos to recover for in-

juries caused by defendants’ alleged breach of duty in fail-

ing to warn of dangers involved in handling asbestos. The

United States District Court for the Eastern District of

Texas, at Beaumont, Joe J. Fisher, Chief Judge, entered

judgment in faver of piaimtitf, and defendants appeaied.

The Court of Appeals, Wixdom, Circuit Judge, on rehear-

ing, held that jury's finding against defendants on the

issue of failure to warn was not incorrect as a matter of

law. In any event, there was significant evidence to create

a question ax to the adequacy of the labels to serve as

warnings.

Petition for rehearing denied.

1. Products Liability > 88

In action by insulation worker against manufacturers of

insulation materials containing ashestos to recover for in-

juries caused by defendants’ alleged breach of duty in fail-

INDEXED

/

A-51

ing to warn of dangers involved in handling asbestos, the

jury could have concluded, within trial judge’s instructions,

that the “cautions” appearing on the packages of certain

of defendants’ products were not warnings in the sense

that they adequately communicated to plaintiff and other

insulation workers knowledge of the dangers to which they

were exposed so as to give them a choice of working or not

working with a dangerous product.

2. Products Liability »» 88

In action by insulation worker against manufacturers ef

insulation materials containing asbestos to recover for in-

juries caused by defendants’ alleged breach of duty in fail-

ing to warn of dangers involved in handling asbestos, jury’s

finding against defendants on the issue of failure to warn

was not incorrect as a matter of law. There was significant

evidence to create a question as to the adequacy of labels

to serve as warnings.

3. Products Liability 9» 14

A seller may be liable to the ultimate consumer or user

for failure to give adequate warnings as to the hazardous

nature of the product; the seller's warning must be reason-

ably ealeulated to reach such persons and the presence of

an intermediate party will not by itself relieve the seller

of such duty.

4. Products Liability ™ 42

The utility of an insulation product containing asbestos

might outweigh the known or fereseeabie risks to maulation

workers and thus justify its marketing, but the product

could still be unreasonably dangerous if unaccompanied

by adequate warnings.

A-52

5. Products Liability »» 83

In action by insulation worker against manufacturers of

insulation materials containing asbestos to recover for in-

juries caused by defendants’ alleged breach of duty in fail-

ing to warn of dangers involved in handling asbestos, jury

could have properly decided, on the evidence before it, that

platutiff received no warnings at all from any defendant

a‘ a time when they were under a duty to warn him, or,

with respect to three defendants who did issue watered

down “cautions,” the jury could properly have held on the

evidence that ‘hose warnings were inadequate to communi-

cate to plaintiff knowledge of the hazards to which he was

being exposed.

6. Products Liability 88

In action by insulation worker against manufacturers of

insulation materials containing asbestos to recover for

injuries caused by defendants’ alleged breach of duty in

failing to warn of dangers involved in handling asbestos,

jury acted within its proper function in finding, m respect

to the issue of strict liability, that plaintiff did not “ volun-

tarily and unreasonably” proceed “to encouiter a known

danger.”

7. Products Liability 3 96

Although the trial court, in action by insulation worker

against manufacturers of insulation materials containing

asbestos to recover for injuries caused by defendants’

alleged breach of duty in failing to warn of dangers in-

volved in handling asbestos, rejected defendants’ proffered

instructions on assumption of risk or volenti non fit injuria,

the court did in fact inform the jury, by an instruction

which was actually overly favorable to defendants, that

assumption of risk is a defense to a striet liability action.

A-53

8. Products Liability 3 27

Under Texas law, contributory negligence or assumption

of risk is not a defense to an action based on strict liability

when the injured party does not deliberately encounter a

risk the existence of which he knows; but it will be a defense

when it consi-ts of voluntary and unreasonable conduct to

encounter a known use,

Appeal from the United States District Court for the

Kastern District of Texas.

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion Sept. 10, 1973, 5 Cir. 1973, 0... pe )

Before TUTTLE, WISDOM and SIMPSON, Cireuit

Judges.

WISDOM, Circuit Judge:

All of the defendants-appellants have moved for a re-

hearing en bane.

1.

Three of the movants, Johns-Manville Corporation, Fi-

b; voard Corporation, and Ruberoid Company contend

that the Court erred in basing its opinion on “the over-

riding factor” of “the alleged failure of the defendants to

at any time warn Borel of the dangers invelved in working

with asbestos insulation while employed by various inde-

pendent contractors”. They state that the record shows

that Johns-Manville placed a warning label on packages

of its products in 1964, and that Fibreboard and Ruberoid

placed warning iabels on their products in 1966. (Borel

filed suit in 1965.) The three warnings were substantially

the same. Johns-Manville’s read as follows:

A-d4

“This product contains asbestos fiber.

“Inhalation of asbestos in excessive quantities over

long periods of time may be harmful.

“If dust is created when this product is handed,

avoid breathing the dust.

“If adequate ventilation control is not possible wear

respirators approved by the U. S. Bureau of Mines

for pneumoconiosis producing dusts.”

It should be noted that none of these so-called “cautions”

intimated the gravity of the risk: the danger of a fatal ill-

ness caused by asbestosis and mesothelioma or other can-

cers. The mild suggestion that inhalation of asbestos in

excessive quantities over a long period of time “may he

harmful” conveys no idea of the extent of the danger. The

admonition that a worker should “avoid breftithing the

dust” is black humer: There was no way for insulation

workers to avoid breathing asbestos dust. As for wearing

respirators if adequate ventilation control is not possible,

Borel and other insulators never worked in any place where

there was adequate Ventilation and respirators were in-

effective: “you can’t breathe with the respirator”.

1 As the opinion points out: “When asked about the use of respira-

tors. Borel replied that they were not furnished during his early

work vears. Although respirators were later made available on

seme jobs. insulation Workers. usually were not required to wear

them and had te make a special request if they wanted one, Borel

stated that he and other insulation workers found that the

respirators furnished them were uncomfortable, could not tbe

worn in hot weather. and —‘you can’t breathe with the respira-

tor” Borel ferther poted that no respirator in use during his

lifetime could prevent the inhalation of asbestos dust. As an

alternative precaution. therefore, he would sometimes wear a

wet handkerchief over his nostrils or apply mentholatum, but

these methods were also unsatisfactory and did not exclude all

the aust.”

Fa

A-do

(1] Within the tria! judge’s instructions, the jury could

have concluded that the “eautions” were not warnings in the

sense that they adequately communicated to Borel and other

insulation workers knowledge of the dangers to which they

were exposed so as to give them a choice of working or not

working with a dangerous product. Our opinion points out:

“Borel said that he had known for years that inhal-

ing abestos dust “was bad for me” and that it: was

vexatious and bothersome, but that he never realized

that it could cause any serious or terminal illness,

Borel emphasized that he and his fellow insulation

workers thought that the dust “dissolves as it hits your

lungs”. (Op. 3 p., — F.2d)

We guoted Borel’s testimony:

“A. Yes, I knew the dust was bad but we used to talk

[about ] if among the insulators, [about] how bad was

this cust, could it give you TB, could it give you this,

and everyone was saving no, that dust don't hurt you,

it dissolves as it hits your lungs, That was the ques-

tion you get all the time.

Q. Where would you have this discussion, in your Union

Hall?

. On the jobs, just amoung the men.

>

(). In other words, there was some question in your mind

as to whether this was dangerous and whether it was

bad for your health?

There was always a question, you just never know

kow dangerous it was. I never did know really. If I

had known I would have gotten out of it.

A

Q. All right, then you did know it had some degree of

danger but you ‘didn’t know how dangerous it was?

A. I knew I was working with insulation.

Q. Did you kuow that it contained asbestos?

A. Yes, sir, but I didn’t know what asbestos was.”

A-96

(2] The evidence established that Borel was exposed to

the products of each of these appellants for extended periods

occurring before the alleged warnings were given. Since the

disease of askestosis is cumulative, these earlier exposures

io asbestos dust from appellants’ products covld have con-

tributed substantially to Borel’s overall condition. Borel was

an insulator for 33 years. Three of the six defendants gave

no warnings. The other three used label< on packages of

their products, as quoted in this opinion: but this practice

began a few years before his terminal illness in 196% By

1964-66, his illness was irreversible. Thus, there were no

Warhings when they could have effeetively allowed Borel to

make,the choice of encountering or not encountering a known

risk, And, in any event, there was signfieant evidence to

create a question for the jury as the adequaey of the labels

to serve as warnings, We cannot say that its resolution of

this issue is incorrect as a matter of law, Planters Manu-

facturing Co. v. Protection Mut.. Ine. Co.. 9 Cir, 1967, 380

2d 869; Helene Curtis Industries, Ine. vy. Pruitt, 6 Cir.

1967, 385 F.2d S41: Bocing Co. v. Shipman, 5 Cir. 1969,

411 F.2d 365, 374.

[3] The appellants are in the anomalous position of argu-

ing that (1) the d anger was obvious; (2) yet three issued no

semblance of a warning and three posted diluted “cautions”

which might alert the contractor-purchasers, but not the

workers, the final users: and (3) all admit that they never

conducted any tests to determine the extent of the danger.

In their original briefs, on the issue of liability they seem to

rely primarily on the “cautions” to the independent contrae-

tors, the purchasers, ax if their potential liability ceased to

exist before their products reached the ultimate users, That

ix not the law. We agree with the Restatement: a seller may

be liable to the u/timate consumer or user for failure to give

adequate warnings. The selie “s warning must be reasonably

A-57

caleulated to reack such persons and the presence of an

intermediate party will not by itself relieve the seller of this

duty. Sterling Drug Ine. v. Cornish, 8 Cir. 1966, 370 F.2d 82;

Yarrow v. Sterling Drug, & Cir. 1969, 408 F.2d O78: Noel,

Products Defective Because of Inadequate Directions or

Warnings, 23 S\W.L.I. 256 (1969).

(4) Taking our original opinion as a whole, it should be

clear that our references to failure to warn refer to failure

to warn of the gravity of the danger, that is, the exposure to

asbestosis, mesothelioma and other cancers, The first <en-

tence of the opinion states that the case involves the scope

of an asbestos manufacturer's duty te warn”. Ata number

of points we emphasize that the plaintiff. contentions fo-

cused on the “adequacy” or reasonableness of the warnings.”

The utility of an insulation product containing ashestos may

outweigh the known or foreseeable risk to the insulation

workers and thus justify it< marketing. The product could

still be unreasonably dangerous, however, if unaccompanied

by adequate warnings. An insulation worker, no less than

-_—

=*°The plaintiff contended that the defendants’ products were un-

reasonably dangerous because of the failure to provide adequate

warnings of the foreseeable dangers associated with them.” Op.

BA cease F.2d DP. secese }

“Here. the plaintiff alleged that the defendants’ product was

unreasonably dangerous because of the failure to give adequate

warnings of the known or knowable dangers involved.” Op.

Bh Ris esieas F.2d p..

“But, us comment k makes clear, even when such balancing

leads to the conclusion that marketing is justified, the seller still

has a responsibility to inform the user or consumer of the risk

of harm. The failure to give adequate warnings in these cirenm-

stances renders the product unreasonably dangerous.” (Op. p.

BO ganas ft eee

“The failure to give adequate warnings in such cirenmstanees

can render the product unreasonably dangerous.” (Op. p. 24,

saisi ot Wi: inte)

“As previously discussed, when a failure to give adequate

warning is #lleged to have made a product unreasonably danger-

m,..7 (On BE nc me ae)

A-oS

any other product user, has a right to decide whether to

expose himself to the risk.

The district court correctly charged the jury:

“As you know, one of the acts of negligence contended

for by the plaintiff and perhaps the principal act of

negligence is that the manufacturer should have given a

warning or a proper warning as to the use of its pro-

duct. The Court would instruct you that a manufac-

turer of goods has a duty to give reasonable warning

as te the dangers inherent or reasonably foreseeable

in using his product. The defendants are under an

obligation and duty to give reasonable warning as

to danger of their products, even if the product or

products is net being used in a specific manner, so long

as the use to Which the product was put was a use that

the manufacturer could reasonably foresee.”

[5] The unpalatable facts are that in the twenties and

thirties the hazards of working with asbestos were recog-

nized: that the United States Public Health Service docu-

mented the significant risk in asbestos textile factories in

1938: that the Fleischer-Drinker report was published in

1945: that in 1961 Dr. Irving Silikoff and his colleagues

confirmed the deadly relationship between insulation work

and asbestosis. In January 1969 Borel’s illness was diag-

nosed as irreversible pulmonary asbestosis. During his

working years, he received no warnings of any kind from

three of the six defendants. The other three defendants

issued no warniags until 1964-66, by which time adequate

warnings would have come too late for Clarence Borel. On

the evidence before it, the jury could properly have decided

that Borel received no warnings at all from any defendant

at a time when the defendants were under a duty to warn

him. Or, with respect to the three defendants who issued

watered down “cautions”, the jury could properly have held

that these warnings were inadequate to communicate to

Borel knowledge of the hazards to which he was exposed.

A-a9

II.

The movants agrue that the decision should be reversed

beeause Borel knew of the danger, aud the jury so found,

The plaintiff's cause of action is based on both negligence

and strict liability. The district court correctly distinguish-

ed one from the other, The jury understoood the distinction,

for it found that Borel was guilty of contributory negh-

eenee but it returned a verdict in favor of Borel on the

theory of strict lability.

Section 402A. comment n, on the Restatement of the

Law of Torts, deals with contributory negligence and that

form of negligence which “commonly passes under the

hame of assumption of risk”; the (wo overlap in actions

based on strict liability:

“ny. Contributory negligence, Since the lability with

which this section deals is not based upon negligence

and the seller, but is strict liability, the rule applied

to strict liability cases fsee > 524] applies. Contribu-

tory negligence of the plaintiff is not a defense when

such negligence consists merely ina failure to dis-

cover the defect in the product, or to guard against

the possibility of its existence. On the other hand the

form of contributory negligence which consists in

voluntarily aid were asoitably procet ding fo cuoomnler

a known dane raid commonly PASSES wuder the iwarme

of assumption of risk, is a defense wider this Section

as in other cases of strict Hability. Pf the user or con-

sumer discovers the defect and is aware of the danger,

and nevertheless proceeds wnreasonably to make use

of the product and is injured by it, he is barred from

recovery.”

[6] Here the jury acted within its proper functions in

finding, in effect, that Borel did not “voluntarily and un-

reasonably” proceed “to encounter a known danger”.

A-60

Nor was the evidence so compelling that reasonable and

fair-minded persons wonld have to conclude Bore! Lis-

cover{ed] the defeet and [was] aware of the danger, and

nevertheless proceed{ed] unreasonably to make use of the

products”, 2 Restatement of Law of Torts (2d ed. 1965)

HA at 396; Boeing Company v. Shipman, 5 Cir, 196%,

411 Bi2td 365, 374.

Ill.

The trial court submitted this case to the jury on gen-

eral instructions and special interrogatories, not “on gen-

eral verdiets accompanied by a special interrogatory as to

Borel’s contributory negligence,” as stated in the original

opinion and as stated by defendants’ counsel in objecting

to certain portions of the jury charge.

Counsel for the defendants objected to the trial court's

not submitting to the jury a so interrogatory based

on assumption of risk or volenti non fit Injuria. Counsel

alluded, however, to the Court’s ede “covered it to

some extent in the general charge”. On the motion for a

rehearing the movants contend that this Court erred in

as is am wine < f law, Borel’s eon-

tinuing to expose himself to asbestos dust was “unreason-

able”. They assert, however, that “in effect, the jury found

that Borel was not acting as a reasonable man”. Moreover,

they say that the Court erred in concluding that the jury

found that Borel had not assumped the risk; that “no such

finding was ever made by the jury as the matter was not

submitted to it except in the contributory negligence issue”.

The defendants timely requested the trial court to submit

special interrogatories on voluntary assumption of risk

or volenti. When these were refused, the defendants ob-

soe >

A-61

jected to the court’s instructions that neither assumption

of risk nor contributory negligence would be a defense to

an action on the theory of breach of warranty. They re-

new their argument on the motion for a rehearing and

contend that the Court erred in making an Erie judgment

that volenti is not a defense in this products liability

action in Texas.

We made no such holding, in our original opinion.

We realized, as we said, that “The applicability of relenti

or contributory negligence defense in a strict liability ae-

tion is unclear under Texas law”. We noted, however, thot

the Texas Supreme Court has quoted and followed, in part,

the position taken in comment n to Section 402A of the

Restatement, queted earlier in this opinion, and that -the

Court quoted with approval Prosser, Law of Torts (3 ed.)

656. Shamrock Fuel & Oil Sales v. Tunks, 416 S.W.2d 779

(Tex.Sup.Ct.1967). We relied, too, on Messick v. General!

Motors Corp., 5 Cir. 1972, 460 F.2d 485, in which this Court

concluded that Texas courts would probably follow com-

ment n to Section 402A. We stated in our original opinion,

therefore, that continued use of a product known to be de-

feetive would be a defense to a strict ability action only

when the continued use was “voluntary” and “unreason-

able’. Compare Dean Keaton’s observation: “First, as-

sumption of risk requires a deliberate encounter with a

known risk. Mere negligence in failing to discover a risk

is no defense under this doctrine. A person does not delib-

erately encounter a risk if he does not know it exists. More-

over, the encounter must be voluntary. Therefore, the de-

fense is inapplicable when the injured party had a rational

alternative to taking the risk”. Keaton, Strict Liability for

Product Design, 52 Tex.L.Rev. 81, 89 (1973). Dean Wade

iunkes the same position. Wade, Strict Tort Liability, 19

S.W.L.J. 5, 21 (1965.)

a

A-62

[7] Notwithsianding its rejection of the defendant's prof-

fered jastructions, the trial court in this case did in fact

inform the jury that assumption of risk was a defense to

a strict liability action. He stated:

iT jhe defendants contend that the deceased, Mr. sored,

knew of the dangerous nature of the asbestos product

manufactured by the defendants in connection with his

insulation work and appreciated the danger and with

such knowledge voluntarily assumed the risk by con-

tinuing his employment. Further, that this knowledge

of the danger of the insulation was known to Mir. Bor-

el’s contractor or employer. Therefore, the Court would

instruct you that if you find from a preponderance of

the evidenee that the deceased knew of the dangerous

nature of the asbestos products with which he was

working and appreciated the danger of working with

such products or that he had knowledge through his

contractor of the dangerous nature of the product and

that he assumed the risk by continuing his work, then

you would find against the plaintiff and in favor of the

defendants.

What more could the defendants want? We considered

the instruction overly favorable to the defendants. Not-

withstanding, the jury still found against the detendants,

in effect, therefore, finding that Borel did not assume the

risk.

[8] Ford Motor Co. v. Henderson, 500 S.W.2d 709 ( Tex.

Civ.App.1973), on writ of error to the Texas Supreme

Court, is not contrary to our holding in the instant case

nor to anything we said in the original opinion or in this

opinion on rehearing. In that ease the Court quoted with

approval, as we did, comment n of Section 402A of the Re-

statement and Prosser, Law of Torts (3d Ed.) 656, both

relied on in Shamrock Fuel & Oil v. Tunks. Dean Prosser

was the Reporter for the Restatement of Torts and the

quoiation from his treatise parallels Section 402A. The

A-638

language of the majority in Ford Motor Company v.

Thompson is consistent with Shamrock v. Tunks and with

the Borel opinion. In all three cases the courts recognize

that contributory neghgence or assumption of risk is not a

defense to an action based on strict liability when the in-

jured party does not deliberately encounter a risk the exist-

ence of which he knows. But it will be a defense “when it

consists of a voluntary and unreasonable [Dean Keaton

would say “not rational”) conduct to encounter a known

risk”. (Op. 40, 0... | en ).

The actual holding in Ford was only that the manufac-

turer Was entitled to submit to the jury as a special issue

the defense of contributory negligence or voluntary as-

sumption of risk. The defendant had contended that “the

jury could have concluded under the evidence that Mrs.

Henderson [the injured party] discovered the defect”:

that then she “unreasonably proceedted] to encounter a

known danger’, 500 S.W.2d 709. There is a reference in

the majority opinion to the plaintiff's “failure to use ordi-

nary care in continuing te use a product after the discov-

ery of a defect [whieh] is available as a defense in this

state’. But the majority supported this holding by a quo-

tation from Section 402A, comment n, and twice scored the

word “unreasonably”, It is evident, therefore, that the

Court had no intention te depart fram the Restatement.

Moreover, Justice Stephenson, for the majority, quoted

Justice Norvell in Shamrock Fuel & Oil Co, v. Tunks to

the effect that the eases which refuse to allow the defense

of contributory negligence “are entirely consistent with the

general rale that such negligence is not a defense to an

action founded upon strict liability. ... They represent the

form of contributory negligence which coisists of delib-

eraiely and unreasonably proceeding to encounter a known

danger, and overlaps assumption of risk’. 500 S.W.2d 709,

710.

A-64

The difference between Borel and Ford is that in Borel

the trial judge put to the jury the analogous question the

trial judge erroneously rejected in Ford.

The dissent in Ford gives no aid and comfort to the de-

fendants in the instant case. Justice Dies, dissenting, argues

that even if Mrs. Henderson, the injured party, discovered

a defect in the product, “unknown before to her, and not

caused by her”, she is not required to make “a wiser choice

of her options” than the ¢hoice she made.

There is, therefore, no reason to withhold the issuance of

this opinion pending the decision of the Texas Supreme

Court in Ford Motor Co. v. Henderson.

IV.

The trial court correctly decided that limitations was not

an issue in the ease. The reference in our opinion to Gaddis

y. Smith, 417 S.W.2d 577 (Tex.S.Ct.1967) and the diseus-

sion pertinent to Gaddis are unnecessary to our decision,

whieh we rest squarely on Campbell v. Sonford Chemieal

Co., 486 S.W.2d 932 (Tex.S.Ct.1972).

The Petition for Rehearing is denied and no member of

this panel nor Judge in reguiar active service on the Court

having requested that the Court be polled on rehearing en

banc, (Rule 35 Federal Rules of Appellate Procedure ; Lo-

cal Fifth Circuit Rule 1%) the Petition for Rehearing En

Bane is denied.

A true copy

Test: EDWARD W. WADSWORTH

Clerk, U. S. Court of Appeals, Fifth Circuit

By Louise Wolf

Deputy

New Orleans, Louisiana JUL 11 1974

A-65

VERNON'S TEXAS CIVII. STATUTES

PERSONA: INJURIES

Art. 8306, sec. 20. “Injury” and “personai injury” defined;

occupational diseases, what are

Sec. 20. Wherever the terms “injury” or “personal

injury” are used in the Workmen's Compensetion Law

of this state, such terms shall be construed to mean damage

or harm to the physical structure of the body and such

diseases or infection as naturally result therefrom. Unless

from the context the meaning is clearly to the contrary,

such terms shall also be construed to mean and include

occupational diseases, as hereinafter defined. The following

diseases only shell be deemed to be occupational diseases:

(a) Poisoning by: (1) Aluminum Trioxide; (2) Arsenic;

(3) Benzol or its homologues and derivatives; (4) Beryl-

lium; (5) Cadmium; (6) Carbon Bisulphide; (7) Carbon

Dioxide; (8) Carbon Monoxide; (9) Chlorine; (10) Cya-

nide; (11) Formaldehyde; (12)Halogenated Hydrocar-

bons; (13) Hydrochloric Acid; (14) Hydrofluorie Acid;

(15) Hydrogen Sulphide; (16) Lead; (17) Manganese; (18)

Mereury; (19) Methanol (Wood Aleohol); (20) Methanol

Chloride; (21) Nitrows Fumes; (22) Nitric Acid; (23)

Petroleum or Petroleum Products; (24) Phosphorus; (25)

Selenium; (26) Sulphuric Acid; (27) Sulphuric Dioxide;

(28) Sulphur Trioxide; (29) Tellurium; (30) Thallium;

(21) Zine;

(b) Anthrax caused by handling of wool, hair, bristles,

hides and skins;

(c) Blisters caused by prolonged or repeated use of

tools or mechanical annliances;

nd od od

(d) Synovitis, Tenosynovitis, or Bursitis due to an oc-

A-66

eupation involving continued or repeated pressure on the

parts affected;

(ce) Chrome ulceration;

(f) Compressed air illness;

(g) Dermatitis; that is, inflammation of the skin due

to oil, cutting compounds or lubricants, dust, liquids, fumes,

gases or vapors;

(h) Diseased condition caused by exposure to X-rays

or radio-active substances ;

(i) Diseased condition of the eyes due to electric are

and welding, and cataract in glass workers ;

(j) (Bpitheliomatous eanecer) or ulceration of the skin

or the corneal surface of the eye caused by tar, piteh, bitu-

men, mineral oil or paraffin or any compound, product or

reside of any of these substances;

(k) Glanders and other diseased conditions caused in

handling any equine animal or the careass of any such

animal ;

(1) Infections or contagious disease contracted in the

course of employment in or in immediate connection with

a hospital or sanitorium in which persons or animals suf-

fering from such disease are eared for or treated;

(m) Nystagmus ineurred in underground work;

(n) Asbestosis;

(0) Silicosis;

(») Psittacosis (ornithosis) eaused by the handling or

processing of meat and poultry. Added Acts 1947, 50th

Leg., p. 176, ch. 115, § 2, as amended Acts 195°, 54th Leg.,

p. 662, ch. 233, § 1.

Complete Teat of Article 8306, see pp. 10 to 39,

n

li

®

A-67

Hisiorical Note

The amendment of 1955 added the occupational disease

of Pstittacosis (ornithosis) contained in item (p).

Cross References

Enumerated and concurrent injuries, see art. 8306, § 12.

Injury sustained in course of employment, definitions, see

art. 8309, § 1.

Occupational disease, compensation, see art, 8306, % 29.

Law Review Commentaries

Highlights of the oecupationai disease amendment, John

Peace, 15 Texas Bar. .f. 147, 1717 (1992).

Notes of Decisions

Constraction and application 1

Instructions and special issues 2

Reviews 3

Special issues 2

Library references

Workmen's Compensation ®” 547 et seq. C.J.S. Work-

men’s Compensation § 169 et seq.

1. Construction and application

For purpose of workmen's compensation, “industrial

accident” or “accidental injury” can always be traced from

definite time, place, and cause, whereas “industrial disease”

is of slow and gradual development, and its time, place,

A-6S8

and cause are not susceptible of definite ascertainment,

Frazier v. Employers Mut. Cas. Co. (Civ. App, 1968) 368

S.W.2d 955, ref. nr. e. .

Not all oceupational diseases are compensable, Td.

2. Instructions and special issues

Issue inquiring whether disability resulted within one

vear after workmen's compensation claimant's last injuri-

ous exposure to occupational disease was meaningless, and

issue should have been submitted in form seeking deter-

mination whether ineapacity iene within ove year after

exposure to hazards or causes of the disease, Travelers

Ins. Co. v. Miller (Civ. App. 1965) 390 S.W.2d 284

3. Review

Claimant whov. alleged spasmodic torticollis came on

insiduously over a period of about one year’s time as result

ef her work aad contracted “occupational disease” and

not sustained “iajury” or “accidental injury” within the

Workmen's Com ensation Act. Frazier v. Employers Mut.

Cas. Co. (Civ... pp. 1963) 368 S.W.2d 955, ref. nr. e.

Art. 8306, se.. 28. Silicosis and asbestosis

Sec. 26. (a) Wherever used in this section “silicosis”

shall meen the characteristic fibretie condition of the lungs

eaused by inhalation ef silica dust. “Asbestosis” shall mean

the che vacteristic fibrotic condition of the lungs caused by

the inhalation of asbestos dust.

(hb) In the absence of conclusive evidence in favor of

the claimant, disability or death from silicosis or asbestosis

shall be presumed not to be due to the nature of any em-

ployment within the provision of this section, unless during

the ten (10) years immediately preceding the date of in-

A-69

capacity the employee has been exposed to the inhalation

of silica dust or asbestos dust over a period of not less

than five (5) years, iwo (2) years of which shall have been

in this state, under a contract of employment existing in

this state; provided, however, that if the employee shall

have been employed by the sawie employer during the

whole of such five (5) vear period, his right to compensa-

tion against the asseciation shall not be affected by the

fact that he has been emploved during any part of said

period outside this state: change or changes of employer.

The Board shall make reasonable rules and regulations

relative to the form, execution, filing or registration and

public inspection of waivers or records thereof. Added

Acts 1947, 50th Leg., p. 178, ch. 1138, $8, as amended Acts

1957, 55th Leg, p 1186, eh. 597, © 1.

Complete Text of Article 8306, see pp. 10 to 32.

Historical Note

The 1957 amendment, effective September 1, 1957, omit-

ted from the end of paragraph (d) the following: “as pro-

vided in Section 7 of Article 8306.”

For savings provisions and provisions relating to sever-

ability and to repeal of conflicting laws, see ote under

art. 8306, § 7.

Cross References

Medical aid and hespital services, see art. 8306, 4 7.

Law Review Commentaries

Occupational disease under the Workmen’s Compensa-

tion Law. Alto V. Watson, 27 Texas Bar J. 233, 234 (1964)

A-70

Library References

Workmen’s Compensation 2”549, 961, 983,

C.J.S. Workmen's Compensation §§ 169, 266 et seq., 272.

Art. 8306, sec. 27. Acute state of certain diseases, compen-

sation only during

See. 27. In any case wherein the employment causes an

acute disease, condition or allergy which can be arrested

by a change of employment or by medical treatment un-

der which the employee will suffer no objective symptoms

ef such disease, condition or allergy, the employee shall

be entitled to compensation only for the period during

which said disease, condition or aiiergy persists im an

acute state. Added Acts 1947, 50th Leg., p. 179, ch. 115, ° 9,

Complete Teat of Article 8306, see pp. 10 to 39,

Law Review Commentaries

Diseases compensable as accidental injuries. 26 Texas

L.Rey. 830 (1948).

Occupational disease under the Workmen's Compensa-

tion Law. Alto v. Watson, 27 Texas Bar J 233, 254 (1964).

IXASCH ET AL. V. ANTON ET UX.

Covrr or Civiz Aperats or Texas, AUSTIN.

Aprit 17, 1935., 81 SW(2d) 1097, 1100

1. Trial »» 129

Designating in argument which issues should be answer-

ed in aflirmative and which in negative to enable client to

recover held improper, where jury disregarded court’s in-

structions and answered questions as directed by counsel,

but not to require reversal where argument was invited.

A-71

2. Trial ®» 352(5)

Issue submitting whether plaintitf was contributorily

negligent in failing, “if he did,” te keep proper lookout

as he approached intersection after seeing truck /eld er-

roneous as duplicitous, and defensive nature of issue did

not cure defect.

3. Trial ®> 355(1)

Where issue is submitted in improper form, jury's an-

swer to question is immaterial.

4. Trial ®» 352(5)

Defendant pleading contributory negligence is entitled

to have each issue of defense based on pleadings and evi-

dence submitted separately and distinctly as much so as

plaintiff on charge of primary negligence (Vernon’s Ann.

Civ. St. arts. 2189, 2190).

5. Evvidence »® 65

In suit for injury sustained in automobile accident, evi-

dence that owner of motor-truck had not instructed driver

as to “law of the road” held inadmissible, since every man

is presumed to know the law (Pen. Code 1925, art. 801 (If).

6. Master and servant »*® 300

Master’s liability for servant’s negligent acts in course

of employment and in furtherance of master’s business

cannot be predicated upon master’s failure to instruct ser-

vant im law of the land.

Appeal from District Court, Caldwell County; M. C.

Jeffrey, Judge.

Suit by Herman Anton and wife against Ed. Kaseh and

another, From a judgment for plaintiffs, defendants ap-

peal.

Reversed and remanded.

R. IH. Mercer, of San Antonio, and R. EB. MeKie, of San

Marcos, for appellants.

C.F. Richards, of Loekbart, J. R. Fuchs, of New Braun-

fels, and Will G. Barber, of San Marcos, for appellees.

BAUGH, Justice.

This suit arose out of a collision between a Ford coupe,

belonging to and driven by Herman Anton, end a 1! 5-ton

Chevrolet truck, owned by Ed. Kasch and driven by Gre-

gorio Flores, his employee, on the highway between San

Mareos and Lockhart, near the village of Martindale, on

January 5, 1933. Anton and his wife were enroute from San

Marcos to Lockhart. At the place of collision, a rural road

crossed the highway at right angles. The driver of the

truck undertook to cross the highway approaching from

Anton’s left-hand side, and was struck by the front end of

Anton's ear near the cab of such truck, while Anton was

traveling on his right-hand side of the highway. Both the

car and the truck were practically demolished, and Anton's

wife seriously injured. The damages sought were for per-

sonal injuries to both Anton and his wife, and for damages

to his ear. The case was tried to a jury upon special issues

and upon their answers thereto judgment rendered against

Kasch and Flores jointly and severally for $10,657, of

which $10,000 was for personal injuries to Mrs, Anton.

Hence this appeal.

mw

The grounds of negligence alleged as against Flores, the

driver of the truck, were: Failure to keep a proper look-

out in approaching said highway; failure to sound his horn

By

A-75

or otherwise indicate his intention to cross the highway;

and failure to yield the right of way to Anton who was

approaching the intersection on the main thoroughfare

from Flores’ right. And as against Kasch, failure to instruct

his employee, Flores, in the “law of the read,” as embodied

in subdivision (I) of article SO1, Penal Code 1925.

In addition to general and special exceptions and general

and special denials, appellants alleged in defense that Anton

was guilty of contributory negligence, proximately caus-

ing the collision, among other things, in the following re-

spects, all of which were submitted to the jury: fn the

‘ate of speed at which he was traveling as he came to said

road intersection; in failing to keep a proper lookout: in

failing to apply his brakes or otherwise slow down: in fail-

ing to sound his horn: in failing to step or slow down so

as to enable Flores to cross said highway; in driving his

ear with its windshield blurred and defective: in attemipt-

ing to pass in front of said truck at a dangerous rate of

speed; in failing to keep his car under proper control after

seeing the truck approaching the intersection: in speeding

up his ear after he discovered the truck approaching the

intersection; and, lastly, that the collision was an unavoid.

able accident,

The case was submitted to the jury on 42 special issues.

The first ten of these presented the issues of negligence

alleged against Kasch and Flores; ivsues 11 to 23, the ele-

ments and amounts of damage: and i-sues 24 to OS, the

defenses of contributory negligence charged against Anten.

The other special issues are uniniportant here.

[1] The first contention made by appellants relates to

argument of appellees’ counsel to the jury. The argument

complained of was as follows: “My associates have called

your attention as to how these issues should be answered,

A-74

that issues numbers one to 23 inclusive should be answered

‘ves’. The defendant Kasch will lose nothing by your ver-

diet if your answers are confusing and contradictory. ‘The

plaintit? needs every issue answered without a conflict to

win. What [am trying to say to you is that the plaintiff

is trying to get a verdict, and if your answers are contlict-

ing there will be nothing for the court to do but to set

aside your verdiet and it will be all to do over again. If

you gentlemen see the case as we do, and if the facts eall

for it. we are entitled to have the first 25 Issues, except

those calling for an amount, answered ‘yes’, and the hal-

ance of them answered ‘no’, except as to amounts of money;

and the last issue we feel should be answered that it was

not the result of an unavoidable accident.”

The objection made and overruled was that it was an

attempt to tell the jury the legal effect of their answers

to the questions asked. The jury answered the first 25

.

questions, except as to amounts, “Yes”; and answered the

next fifteen “No”, some ef which, based upon a preceding

question, they were instrueted by the court that they need

not answer. As was stated in H. BE. & W, T. Ry. Co. v

Sherman (Tex, Com. App.) 42 S.W.(2d) 241, 247, it would

appear, therefore, that the jury followed the suggestion of

counsel in answering said questions, rather than the in-

struction of the court.

We think that the effect of the argument above quoted

was to tell the jury that if the plaintiffs were to recover,

the questions referred to must be answered as suggested

by counsel. While counsel intimated that to answer them

otherwise would create a conflict, nullifying their verdict,

such would not have been the result. Finding Anton guilty

of contributory negligence would create no conflict with

finding the defendants guilty of negligence. A request ot

counsel that the jury avoid a conflict in their findings,

A-75

going no “urther than that, would not constitute error.

Indemnity Ins. Co, v. Garsee (Tex. Civ. App.) 54 S.W.(2d)

817, 820. But counsel in the above-quoted argument, we

think, went much further than that. And it has been re-

peatedly held that it is error for counsel to inform the jury

how they must answer special issues to enable the plaintiff

to recover. Such method of answering special issues is

inimical to the very purpose of submitting a case on special

issues, a method designed to elicit findings of the jury,

under the evidence, on the issues made irrespective of the

result of their findings upon the final judgment of the court

thereon. MeFaddin v. Hebert, 118 Tex. 514, 15 S.W.(2d)

215; Texas & P. Ry. Co. v. Edwards (Tex. Com. App.) 36

S.W.(2d) 477; H. BE. & W. T. Ry. Co. v. Sherman, supra;

Dallas Ry. & Terminal Co. v. Bankston (Tex. Com. App.)

D1 S.W.(2d) 304; Speer’s Law of Special Issues, © 526;

Clements v. Wright (Tex. Civ. App.) 44 S.W.(2d) 652.

It appears, however, from the trial court’s qualification

of appellants’ bill of exception that substantially the same

method of argument was adopted by counsel for appel-

lants. That one of appellants’ counsel in his argument to

the jury in etfect admitted that Flores was guilty of negli-

genee, but insisted that Anton was guilty of contributory

negligence, and, after discussing Issues 24 to 3x8, told the

jury that if “from the evidence, they found and answered

that the plaintiff was guilty of any act of contributory

negligence, that he was not entitled to recover one cent in

ey

this cause.” From the court's qualification of the bill, there-

fore, it apears that the improper argument was invited,

and that counsel for appellants committed the same errors

of which they complain here, Since we have concluded that

ihe ease must be reversed for other reasons, the foregoing

issue is diseussed in view of another trial.

A-76

. [2-4] The next contention which we deem it necessary

to diseuss complains of the manner in which the trial court,

over appellants’ objection, submitted the issues of eontribu-

tory negligence of Anton, pleaded by appellants and raised

by the evidence. While the various grounds of contributory

negligence alleged were separately submitted, and separate

complaints are made as to each of them, the same errer

is charged as to all and equally applicable to each. We will,

therefore, discuss only special issue No, 25 as typical. This

issue reads as follows: “Do you find from a preponderance

of the evidence, that Herman Anton was guilty of contribu-

tory negligence, as that term is hereinbefore defined, i1

failing (if he did) to keep a proper lookout as he continued

toward the intersection after seeing the Flores truck? An-

swer ‘yes’ or ‘no’ as yon may find the fact to be.”

To which issue the jury answered, “No.”

To this issue appellants objected and ter.dered separate

issues inquiring: (1) Whether Anton failet to kerp a prop-

er lookout as he approached the roawa intersection; (2)

whether such failure, if so found, was negligence; and (3)

if so, was it a proximate cause of the collision. Undoubtedly,

the issues requested by appellants constituted a proper

method of submission. That the issue as presented to the

jury was duplicitous there now seems to be no question.

Texas-Louisiana Power Co. v. Bihl (Tex. Civ. App.) 43

S.W.(2d) 294; Stinnett v. Paramount-Famous Lasky Corp.

(Tex. Comm. App.) 37 S.W.(2d) 145; K. C., M. & O. Ry.

Co. v. Fostex (Tex. Civ. App.) 54 S.W.(2d) 270; Clements

v. Wright, supra.

In the ease of Postal Tel. Cable Co. v. Darkins (Tex. Civ.

App.) 26 S.W.(2d) 441, Supreme Court 44 S.W.(2d) 933, a

question materially, if not identically, the same as here

presented was involved, and therein condemnea, and the

A-77

jury’s affirmative answer thereto held to amount to no

finding at all. We think it is immaterial how the jury may

or may not answer such improper question. In K. C., M.

& O. Ry. Co. v. Foster, supra, the jury answered a similar

question “No.” The result is, we think, the same in either

event. A defendant, under a plea of contributory negli-

gence, is entitled to have each issue of his defense made

by the pleadings and the evidence submitted separately and

distinctly as such co as is the plaintiff on a charge of pri-

mary negligence. Such are the provisions of the statutes

(article 2189, R. S. 1925 and article 2190, as amended by

Acts 1931, ¢. 78, § 1 (Wernon’s Ann. Civ. St. art. 2190), and

the well-settled rules of decision. Fox v. Dalias Hotei Co.,

111 Tex. 461, 240 S.W. 517; New Nueces Hotel Co. v. So-

renson (Tex. Com. App.) 76 S.W.(2d) 488; Ullrich v.

Schramm (Tex. Civ. A pp.) 64 S.W.(2d) 1041; Meinen v.

Muesse (Tex. Civ. App.) 72 S.W.(2d) 931.

Appellees earnestly insist, however, that a different sit-

uation here exists, in that said issue complained of was

defensive, and had the issue been submitted in three ques-

tiens, as requested by appellants, a negative answer to

any one of them would have barred the defense of con-

tributory negligence; that the necessary result of the jury’s

answer to said question as presented was either that Anton

did not fail to keep a proper lookout, or that, if he did so

fail, his failure was not negligence; and that consequently

the error, if any, was harmless. With this we cannot agree.

If the conclusion reached in the Darkins Case, supra, be

correct, it applies with equal force to a negative answer as

to an affirmative answer. Triie the jury could have found

the facets alleged, but that such facts did not constitute neg-

ligence on the part of Anton; or that if negligent that such

negligeuce was not a proximate cause of the collision. Such

a conjecture cannot be indulged, however, as against the

A-78

rights of a litigant to have his case properly presented

when he has requested the trial court to do so. It is equally

as conceivable that a jury might find facts alleged but that

same did not constitute negligence, when the existence of

the facts found might constitute contributory negligence

as a matter of law. Or, that they might find the existence

was not a proximate cause of the injury, whereas, such

negligence might, as a matter of law, constitute a proximate

case, necessitating a disregard of the negative answer of

the jury. The application of the well-settled rule announced

in Fox v. Dallas Hotel Co., and repeatedly reannounced

since then, cannot, therefore, be made to depend upon how

the jury answers an improperly presented issue.

The same question is presented with regard to the sub-

mission of other grounds of contributory negligence alleged,

but the same rule applies, and, as above stated, it is un-

necessary to diseuss them separately here. The error need

not occur upon another trial.

[5,6] The next contention made by appellants raises the

question whether Kasch was guilty of negligence in fail-

ing to instruct his servant, Flores, of the provisions of

the “law of the road.” That is, the provisions of subdivi-

sion (E) of art. 801, Penal Code, Appellees pleaded such

failure of Kasch as negligence. Appellants excepted to

such pleadings, objected to the introduction of evidence

thereon, and to the submission of such issue to the jury.

Clearly we think it was erroneously submitted, and should

have been stricken from the pleadings. However violent the

presumption may be that every man knows the law, it never-

theless conclusively prevails. Such presumption applied as

much to Flores, or Anton, as it did to Kasch; and it would

be a strange doctrine of negligence to hold that Kasch was

negligent in faiilng to tell Flores something that he is in law

A-79

conclusively presumed to know, (italics ours). No more

duty rested upon Kasch to inform Flores of the provisions

of this subdivision of art. 861, Penal Code, than to inform

him of the provisions of any or all of the other 13 sub-

divisions of said article; or, for that matter, of any pro-

vision of the Penal Code relating to the use of motor

vehicles upon the highways. The master is liable for the

negligent acts of the servant done within the scope of his

employment and in furtherance of the master’s business;

but certainly negligence of the master cannet be predi-

eated upon his failure to instruct his servant in the law of

the land. This portion of appellees’ pleadings should have

been stricken, the evidence on said issue excluded, and the

issue should not have been submitted to the jury.

Other contentions are made in appellants’ brief relative

to discovered peril and unavoidable accident: but under the

record as presented we do not think the evidence raised

them, and pretermit a discussion of them here. What we

have said disposes of the material questions raised, and

the errors pointed out require a reversal of the cause. The

judgement of the trial court will therefore be reversed, and

the cause remanded for another trial.

Reversed and remanded.

Qe v¢

4

j

4

4

4

that we might have more delegates

‘attend ahese meeings. metion was

withdrann and imetion mode and

caeried that Atlanta he used as con-

ference héadquar'ats, however, if

some other ety desired to mvite the

conference to thelr city they could

do so and it would be seted on,

Brother E, Ts Pugh thay extended

conference an invitation te have nent

Southeast Conference in Nashville,

Tenn, and it wee unanimously ae-

cepted,

The delegates were advised to

send in the monies they have already

collected on assessments in connec

tion with expense of holding the

next Imternational Convention an

the city of New Orleans which isa

joint venture being sxpported by the

affliated lecals and their member-

ship of both the Southeast and the

Southwest States Conference. All

checks should be made payable to

the Asbestos Workers Convention

Fund and mailed to the Conference

Secretary Charles White, 620 Nor-

mal Street. Memphis, Tenn., and

Secretry White was further in-

structed to communicate these facts

to the various local union financial

secretary's.

President Sickles advised that

after listening to the reports of the

delegates to the conference that he

- found the workload in this area as

considerably less than ip any other

portion of the country’ ahd that any

of the idle membership of the south-

cast states should have no difficulty

whatever obtaining employment

throughout other sections of the

country. At least some of the locals

in every conference have a workload

far in excess of the number available

from within their membership and

could assure them that their employ-

ment in any of these localities would

be available,

During the above reports Presi-

dent Sickles and Vice President

Howell gave helpful advice and in-

structions concerning problems that

effected our locals.

There being no further business

the meeting adjourned at 2:30 p,m,

Respectiully submitted,

Cuarces F, Waite,

Secretary.

NEW YORK-NEW ENGLAND

STATES

Syeacuse, N.Y,

September 29, 1956.

The semi-annual meeting of the

New York-New England States

Conference of Asbestos Workers

OCTOBER, 1956

was held at A-B2 syracuse in

Svracuse. N.Y. on September 29,

was enlled to order

ty Vresident Joba Kk VeCormick

and the follow ag delegates Te

sponded to the roll call: Local No,

}, Buttalo, No Vo Anthar Porton;

Local No. o, Boston, Miss. Herhert

G. Anderson and George Anderéen;

Local No 12, New York City,

NOY. George Rider and Patrtels

CY Connors Local No, 26, Rochester,

NOY. Hertert Lords Local No, 40,

Svracuse, N. Y¥.. John kk, MeCor-

mick and Matthew Costello, Local

No. 31, Providence, RK. 1, Prescott

Jentzel and Domald Mitchell; Local

No. 33, Connecticut, Joseph Marphy

and James Piggott; Local No. 40,

Albany, N. Y.; Robert McCaffrey

and Joseph Case; Local No. 43,

Springfield, Mass. E. Hi. Blair and

The meeting

Warren Retzlaff; Locai No. 91,

White Jiains, N. Y. Harry J.

Herlst.

General Secretary Treasurer John

W. Hott was present representing

the General ( )ftice.

Also in attendance as visitors

were Edward Kellner and Nicholas

Lucich, Local No. 12; James Rapp

and Lovern Schribens, Local No. 4,

Buffalo, N. Y.; Clarence Demers,

Local No. 91 and: M. H. Nichols,

Local No. 93, Toronto, Ont., Can-

ada.

Due to > recent operation, Brother

Abram Goldterg, delégate from Lo-

cal No. 6 was unable sto attend this

conference. Numerous delegates in-

quired about his health and they

all wish him a speedy recovery.

Brother Goldberg was replaced at

this meeting by Brother George

Andersen, vice president of Local

No. 6.

The regular order of business was |

suspended for the purpose of elect-

ing officers for the coming term.

The following officers were nomi-

nated and elected without contest;

John KR, McCormick, president,

— Murphy, vice president avai

derbert G. Anderson, secretury-

treasurer, The secretary was in-

structed to cast one ballot for each

office.

Delegate Arthur Forton, Local

No. 4, reports that work at present

is fair and future prospects look very

good, The construction of a new

power plant and two oil refineries

are expected to break at the same

time. A recently negotiated agree-

ment, which will run for two years

beginning January 1, 1957, to Jan-

uary 1, 1959, is as follows: Effec-

tive January 1, 1957, 20 cents per

hour to the pension tind, se

one hali cents per hour te

fare fund. mechanics rate ;

$3.15, moprovers $2.20. Ie

$8 FO per day and one paid

Delegate Herbert Gy 4

Local No. ©, stated that t

sitition an that aren me ve

at present and future pres)

the same. The total meni

Local No, 6, approsinmatels

currently employed, Vrot

derson requested that ae

he made at this time regas

report to this conference e

ber 3, 1955, and porintes

Jovexat of January, 19:

quotation should have rea

lows: “The lmprover sit

Massachusetts has reached

tions that are of great cc

Local No. 6 and our As

This is due to the fact |

registered apprentices are

to work on state finance

Works Projects.”

ue to the increasing a

chest ailmeats among our

ship within she past 15 y

also from the reports o'

ences of other locals, arra

were made with the Bo

berculosis Society to

portable X-ray machine in

ion headquarters on two |

Saturdays. Approximate!

cent of the membership

chests and hearts X-rayed.

of the numerous material

the trade today have been

to the State Department |

and Hygiene for analysis.

tend to continue our in

with the hope of pinpoi

cause of so many deatiis

years from the so called

and fibrous diseases.

spate atrick O'Con

No, 12, reports over sis

men working at the pre

About fifteen travelers

used, Brother O'Connor

the problems of the fibe

terials and stated that Lo

has records of the results

sies taken of their decea

bers.

Delegate Herbert Lord,

26, reports conditions ©

ment good with future

also good, The work or

house will begin in a1

additional men will be nee

time,

—— ae

Local No. 30, reports co

the Syracuse area good 4

ture favorable. All me

% al

mid, seven and

ur te the wel

rate jer hour

20. Weard rate

“ grail We lidias

Hoos very jroo

? pdersy: “le ware

menher hip of

wiitely 205, are

Vrother An

oa connection

e regarding tus

nice On Decen-

printed im the

vy, 1956, The

ve rend as tol-

ver situation in

cached propor-

cat concern to

ur Association,

fact that only

ps are qualified

financed Public

slgptieniasiniinicuaiecariis

sing amount of |

g our member-

1 15 years. and |

rts of experi- |

s, arrangements

1¢ Boston Tu-

fy to set up a

hise in our un-

1 two appointed |

imately 30 per

tship had their

rayed, Samples

aterials used in

Leen sulinitted

nent of Health

alysis. We in-

ur investigation

inpointing the

leatiis in recent

called ashestosis

:,

O'Connor, Local

‘er six hundred

1¢ present time,

elers could be

‘onnor discussed

ve fiberglas ma-

vat Local No, 12

results of autop-

deceased meni

Lord, Local No.

ions of employ-

future prospects

‘ork on a power

in a month and

he needed at that

R, MeCormick,

rts conditions in

good and the fu-

Ml members are

ff

working and en additional five

travelers.

Delegate Vrescott Jentzel, Local

No, 31, reports work at present

good with future prospects also

good, ‘Total membership 80 me-

eyanics and 3) improvers, Six

members are on traveling cards,

‘Two large oil companies are at pres-

ent negotiating for land in the Nar-

ragansett Bay area ior the purpose

of constructing oil refineries,

Del*gate Joseph Murphy, Local 5

No. 30, reports his membership in

full o> gg ~ and future pros-

pects good. Brother Murphy, by

invitation of the Owens Corning

Glass Company, visited their facjory

in company with their representa-

tives and discussed at length the

newer methods of manufacturin

fiberglas products. It was state

that, while in the process of manu-

facture, the materials are in a damp

or moist state, eliminating the haz-

ards of dust inhalation from that

end. He was asked to make sugges-

tions that would alleviate the condi-

tions presently existing in handling

their materials. Three members are

known to be afflicted with asbestosis.

rother Robert McCafirey, dele-

gate from Local No. 40, reports all

members working with a few trav-

elers employed in the territory. The

new agreement, which goes into ef-

fect soon, includes an increase to

$3.15 per hour for mechanics, 10

cents per hour to the health and wel-

fare fund and five cents per hour

towards a vacation fund,

Delegate Ernest Blair, Local No.

43, reports work at present good

with future prospects the same. To-

tal of 65 men working in territory

including one traveler, Two local

members are working outside the

territory on traveling cards, Brother

Blair discussed the non-Union con-

ditions that persist in the Wor-

chester area and was advised b

General Secretary John W. Hoff.

Ground has been broken for con-

struction of a new atomic power

plant to be built is: Rowe, Mass.

Delegate Harry Herbst, Local

No. 91, > work at present very

good with future prospects very

good. A_ fifty-five million dollar

atomic plant will soon he con-

structed at Indian River Peekskill

beginning about November 1, 1956.

Several future jobs will cost in the

vicinity of from five to ten million

dollars. The new aggeement rates

mechanics wages at $8.65 per hour

retroactive to July 1, $956; January

1, 1957 to June 1, 1997, $3.75; July

A-83

1, 1957 to December 30, 1957, $3.90;

is again the sulject of ¢

January 1, 1938 to June 30, 1958,

between committees repre «

$4 per hour, Sheet Metal Workers and our dn

Business Agent M. H. Nichols, ternational Association '

Local No, 95, Toronto, Ontario, The report that our Gercral Pres

Canada, visiting at this conference, ident C, W, Sickles culos wae net

spoke at length about the expanding with us at this meet ie $

industrial conditions in bis area. his attendance at the southwest

Their health authorities have classic Conference mecung mi Claim

fied the fibrous diseases as ® sepapern City this date) is completcl wel

coniosis.” He was highly com- after a rough stmmer te cond new

j

to all of uy.

The volume of work reported of!

a national scale makes work pros;

pects for the future look very good

There being no further Vusinest

before the conference, the meeting

was adjourned at 1 p.m 1

After adjournment i:!! delegate!

were transported to the annual a

Bake as the guests of Local No. &

Guests were greeted by the Locs

No. 30 committee consisting

4rother E. O'Brien, chairman and

'

mended by Secretary-Treasurer

Hoff on the fine work he has been

doing in Canada.

General Secretary-Treasurer John

W. Hoff and Vice President George

Rider patiently advised the various

delegates on their inany problems

which included the abrogation by

the Sheet Metal Workers Interna-

tional of the agreement recertly ne-

gotiated between our respective or-

ganizations, covering the interior

duct lining and this subject matter

—————— eS"

i i Se ‘8 ee Ie |

NATIONAL LABOR RELATIONS BOARD

OFFICE OF THE GENERAL COUNSEL

Washington 25.0.C

Wee EY

!

{

duly 14, 1956 |

|

Mr. John W, Hoff, Gen. Secretary-Treacurer

International Association of Meat & Prost

Insulstors & Asbestos borkers

Dear ur. Hoff:

|

This will ecknowledze receipt of campliance material

@iteitted in eccordance with the filing requirements of Section

s 9 (hn) of the iahor Management Relations Act, 1947.

f

‘

‘

Wastargton 6, D. Co |

H

‘The National laber Relations Bocrd will consicer your |

organitation in @ With Section 9 (f) and (g) of tne Act j

wittl December Jl, 1956, and under Section 9 (h) until July 2, }

1957, provided there are no intervening changes !

in your officers.

Our Regional and Gubregionsl offices have been notified

of your renewal of compliance.

Hf This, of course, does not cover your local orgenitaet ions,

‘ Tach local must eeparetely weet the above filing requiranents of

the Act in order to enjoy ite benefits,

b We will give you thirty days advance ootire, whenever

' possible, of pending expiration o: rey as reflected by our

{ records. We eseume fo responsibility for notification ar it is

your obligation to keep this materiel up to date,

; Very truly yours,

k Ruceacl FY hha

. fuesel Rh, Miller

Election Officer and

iy Affidavit Carpliance Cnief

THE ASBESTOS WCRKE

A-84

[This page left dlank intentionally. }

ssisicei Phe DV. 27

JULY, 1957

x ees bs

want tase 55 a9. SS

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ae toes

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NTERNATIONAL CONVENTION HEADQUARTERS

19TH |

:

72-14

© September 3-6, 1957

Orleans, Louisiana

New

tet woe }

\ t’resiel 4 C seert ice

if asf Three gets Ssita't3

cor at coment set Te erVeee

ieee: tas fae feed Was ete Os

enms Septet :! 7

\! F a |

ae : ‘ fue al OM

the Verstan ad} ot ties

os ) caved 1 Fe

tht th ota Cazcetetes Wats

tat stich ae Cantaaatttas ftwe were

ten this Cs

pUrpese ot stati

vers Patrick 1.4

]

ne F a*

Pacai ve

ference fer

them ease.

agan and SOP

peed attended

merits on thetr

Wosichles: rose

pret Yepis imvehe

ina Shipyard focal and those of a

?

g trades locel are so tar apart

.

vssing ie

that it would net be mivisalle of

practical to accept the atflianion of

a Shipvard Decal with this Confer-

ence. The Conference did on mo-

ovete amano.

lation to Nave Yard

ate Anderson

stated his ¢ nees with the

ne ) of Tuocal Ne os Boston

Naval Shipyard and will alwies be

gad to honor their V1 vel

whenever work in the area warrants

it

tion duly secer

ly te

La cal Unions

retuse a

Cards

After hearing reports of the dele-

gates and their statements of heavy

ml tnture, the

problem of manpower te properly

service Our trade

President Sickles steted that the im-

portance of bringing our Iprover

ritio up to the legal status. as pro-

vided for in our International Con-

stitution, is imperative at this time

and instructed those locals that have

not complied to do so

The unpleasant situation that per-

sists in the Worcester area was

again brought to the attention of the

Conference. President Sickles de-

scribed it as a “cesspool area” and

advised that he hal already made

tentative plans to visit: Worcester

and at that time meet with all in-

terested in our craft problems in that

area including the New England

Local Union Business Agents which

visit he expects to make an the curly

part of July and at that time every

possible eftort wii beu to bring

about a satisfacters adjustment. of

the « ion which bas for

tine past existed in ane around the

Worcester. Mass . area.

The question of preminm wages

sas discussed wath ats reQative pres

President Sickles en-

the delegates das to its

7

‘ b- Iepagl eee

worn loads, presen

was discussed.

Sone

and cots

hehtened

JULY, 1957

stressed

conditions.

used oat all

working

TOSPUTaters

times end ghaes wienever ¢ md

tions warrant

Tn reply te oitepurs raised by

Stehles nauide 2

with the

= Prestdh :

short reply on comneetion

correspondence course which has

heen gatag around the country dar

mny the last twe

respondence initiated ovt of Local

No. 8, and assured the Conference

delegates that these communica

tiens, paragraph by paragraph. will

and answered at the

proper time and phice, namely, the

next: scheduled International Con-

vention which will be held in New

Orleans the first week in September.

The Conference goes on record as

instructing those local delegates at-

tending the International Conven-

tion at New Orleans to meet during

Convention Week te discnss its

problems.

Many of the delegates present in-

quired aheat Brother Abram Gold-

herg of Local No. 6 and they all

wish him a speeds recovery from his

present illness.

months, which cos

he asniivec |

Srecessinl culmination of | the

agreement hetween the Asbestos

Workers Imernational and the

Sheet Metal Workers International

Association was elaborated upon by

President Sickles. The many set-

backs and heartaches attendant upon

the naimy meetings required for the

formulation and conclusion of such

an agreement are not wenerally un-

derstood In our membership We

are deeply grateful to our General

President COW. Sickles. General

Seeretary- Treasurer fobn Wo Hotf

and Vice President Hugh Fo Math-

ean for bringing this problem to a

successint conclusion.

There bang ne further business

vetilesdd tee vet

envtectiotis 7

ies Curme the Cos

mg ether thiig

ete

we9358

the start

venur wweetar as v ‘

for a recy ise oat

ef the third

rates were concerned and they ceathl

the adpasted te

cconemme changes in the wages of

the Tralding Waar cond

vicinity if such further adpastine ris

were fornd warranted,

et ANN Meade

trades of

ICFTU Lauds

UN Report

Cn Hungary

gyi Tuternational Confederition

of bree Trade Urients has wel

comed the report of the United Na

tions Special Committee on Plu

gary as an expression of the patil

opinion that must be mobilized ona

worldwide seale af the Hu

people are to be delivered frosi

Soviet oppressois,

At the same time, it) recegnices

the responsability of the ICr it

itself.

“The free

work! will

ttt

tride unions of thy

let pass a simgle oy

portunity to protest the suppression

of freedom in Thmgars and to ey

press their sympathy with the Phin

garian people.” the international tn

hor body said in at statement

“The report inetlenitcathy

fresh evidence of the tact”

tCETU said. “that the Conn

trolled Workl Federatien

ade Unions is a willing teed oo

the Kremlin “Phe WET tas gest

its unfailing support te (Prenuer

kadar and the Seviet) goevernme

iw the poliey of crushing the Tiny

warkan revolution.”

tat

Naver

THe UNtApYLIKE Bren AWIOR ii iisiettiting Sed in amaranteed-sate United

ov \wniy irc i hall Su ot es oe

a

PART OF ENTRY VMERPOANS SAV ENGS BEiONGS EN EOS SAN ENG FONDS —~

Uda

This text is long and has been trimmed here. Open the source document for the complete record.