# Appendix — Fibreboard Paper Products Corp. v. Borel > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0232%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 - **Citation:** 419 U.S. 869 ## Text A-] Ix The SUPREME COURT OF THE UNITED STATES Ocroper Term, 1974 Fisresoakp Paper Provuctrs Corporation, ET AL, Petitioners, v. CLARENCE Bonen, Respondent. APPENDIX A2 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. A-3 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 A-+ 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 A-6 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. A-8 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. A-9 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). A-i 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 - A-li 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 A-12 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. A-13 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. A-14 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. A-15 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. A-16 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 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 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 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 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 oy : ae toes ge: ‘ ‘ . ee . are x 2 * Pe j « By Pas By (ot Ty ily then ake a} n] 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 eid pat fod on bis han pr + Ahevtiamg ¢ de Voseue VD achisshove af 4 ‘abn # A-88 [This page left blank intentionally.] jpeer BP NS. age tt & Leathe cache. «SMhow dhieie? tad 4 he aban BO Se Beds dank beled ‘ _. 2 4 ; 4 . 4 ? > “ “v ) ° . P ‘ 2) xt ‘ ‘ » Presidents Page A | Continued from pac ] \ A ae | ‘ ‘Secs rating perseuned it j - . o ri i is ‘ , ' ‘ ij ‘ ; } ' ; J m f } ' sat The s tt ti ve 1900, riy t t 1 ls vite 1 ! ne t vere Vict , ; by tl 531 of the ' — ; i} ; 1: cashier of as Her - q te ! t ru-ted chief whe = the 1 * +t } 1 ' The witmmnetic > s that curmg ‘ | ‘ approximately 152 bank trad ‘ tis ‘ Scaled ce aint fev ' a . embezzled or stole trom plovee- t » banks. ln ant {t ' tren } tore i thre ] t filler told the Arkansas and asset. t! ! nkers that it is “not my pur- the we , nose to frighten you.” He also told blue LFI-CT . sé finances Is fe cl pose to iright you i 2 aovete i ‘ ! ! ! P 59 ‘fe i ‘ ‘ ~ | devoted pri- 2 Ter the t ne of f Medical < To the Internat H irch. It is the eee , ’ ‘ : re only organizatk country to Mrs. Re use of her name. She did so because AS LIVE e distinctive contribution it 1 makes in the fight agamst cancer oth 1 atious parts of the counters These lab atoric cf srtrtute " named fur i , « 1 2 -~ ' at miter cancer tr “uw ancerl ¢ t t CG ‘ ltr ‘ ‘ ; 1» F ' ‘ ) Saxtoev GO! r ' Gog « nite 4 r 1 d 1 the { J K. Hel- r ‘ a 1 Stan Caneer Center, fermer rector 7 ui Canece trtet ! ona! to st | c ‘ ] r! ( | ! ' . Omar VN. Bradles Ceenter). Cancer Soviet , WORLD HEALTH AWARD ta sAlistper e yhey ‘ wher bie hoard chairman of the Eleanor Roosevelt Cancer Foundation. draus Sesantatun 2 ” approving smiles from President Kennedy and Mrs. Roosevelt. POLO PAA SG: om ‘ ~~ (A Ht (sa WEAR = i ee ae. BO A-93 Tue State or Texas County OF JEFFERSON BEFORE ME, the undersigned authority, on this day personally appeared Geo A. Weller, who being first duly sworn, on oath states: That there is presently pending in the United States Dis- trict Court for the Eastern District of Texas, Beaumont Division, a total of nine (9) cases involving suits for dam- ages against Petitioners and others based upon the theory of strict liability for exposure to asbestos dust. There is pending one (1) case in the United States District Court for the Southern District of Texas, Houston Division. There are eighteen (18) other cases pending in various United States District Court and State Courts. Geo. A. WELLER Geo. A. Weller SWORN TO AND SUBSCRIBED BEFORE ME by the said Geo. A. Weller, to certify which witness my hand and seal of office this 12th day of July, A.D. 1974. Ovipa L. Swope Notary Public in and for Jefferson County, Texas. [Sea] Ouida L. Swope, Notary Public In and for Jefferson County, Texas 2 CST or Eee ST se peren Iss eo Tope S Sess Ss zs 6. ~~! . A-94 ASBESTOSIS LITIGATION Albert C. Baycroft v. Burlington Northern, Inc. et al, United States District Court for Eastern District of Washington — Northern Division, Case No, 3879. John F. Burke v. Combustion Engineering, Inc. et al, United Stetes District Court for Northern District of Ohio — Eastern Division, Case No. (73-239. Francis A. Ceas vy. Johns-Manville Industrial Insula- tions, Circuit Court of Cook County, Tlinois, Case No. 72-3843. Claude A. Dunn v. Johns-Manville International Corp. et al, United States District Court for Southern Dis- trict of Texas — Houston Division, Case No. 73-H- 1072. Mary E. Glaser v. Johns-Manville Products Corp. of Mass., Commonwealth of Massachusetts, Middlesex, SS — Superior Court. Alfreda J. Goodman v. Johns-Manville Corporation et al. Cireuit Court of Missouri, Sixteenth Judicial Cireuit, Case No. 765,916 — Division 13. Floyd Gustafson v. Fibreboard Paper Products Corp. et al, United States District Court for District of Minnesota — Fifth Division, Case No. 5-71-40. Virgil Harrod vy. Johns-Manville Sales Corp. et al, United States District Court for the District of Kansas, Case No. KU-3412. Mary Kathryn Janesko vy. Johns-Manville Corporation, et al, District Court of Wyandotte County, Kansas, Case No. 48110B. 10. 11. 13. 14. 1). 16. 17. 18. 19. A-95 John A. Karjala v. Fibreboard Paper Products Corp. et al, United States District Court for the District of Minnesota — Fifth Division, Case No. 5-71-18. Mary C. Kearns v. Combustion Engineering, Inc. et al, United States Distriet Court for Northern District of Ohic — Eastern Division, Case No. C73-70. The Louisville Trust Co. v. Ohio Farmers Insurance Co. et al, Jefferson Circuit Court — Common Pleas Branch — Seventh Division, Case No. 164922. Elmer J, Measor vy. Combustion Engineering, Inc. et al, United States District Court for Northern District of Ohio — Eastern Division, Case No. (73-238. Mary Muntean v. Combustion Engineering, Inc. et al. United States District Court for Northern District of Ohio —- Eastern Division, Case No. (73-199. Robert Pollock & Carol Pollock vy. Johns-Manville Sales Corp. et al, Court of Common Pleas, Cuyanoga Coun- ty, Ohio, Case No. 923,247. Rose Ann Ricci v, Combustion Engineering et all, United [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0232%3A2. Public record. Not legal advice.