Bituminous Cas. Corp. v. Black & Decker Mfg. Co.

• Decision Date: 27 November 1974
• Docket Number: No. 18404,18404
• Citation: 518 S.W.2d 868
• Parties: BITUMINOUS CASUALTY CORPORATION, Appellant, v. BLACK AND DECKER MANUFACTURING CO., Appellee.
• Court: Texas Court of Appeals

Page 868

518 S.W.2d 868

BITUMINOUS CASUALTY CORPORATION, Appellant, v. BLACK AND DECKER MANUFACTURING CO., Appellee.

No. 18404.

Court of Civil Appeals of Texas Dallas.

Nov. 27, 1974.

Rehearing Denied Dec. 30, 1974.

Henry Stollenwerck, Dallas, for appellant .

J. Carlisle DeHay, Jr., Paul L. Smith, Gardere, Porter & DeHay, J. S. Maxwell, Seay, Gwinn, Crawford & Mebus, Dallas, for appellee.

CLAUDE WILLIAMS, Chief Justice.

This is a products liability action. Martin O'Shea sued Black and Decker Manufacturing Company (Black and Decker), seeking damages for personal injuries received by him when a grinding wheel sold by Black and Decker flew apart while being used by O'Shea. Bituminous Casualty Corporation (Bituminous), having paid O'Shea workmen's compensation insurance, intervened as a plaintiff asserting its subrogation rights. Black and Decker joined Carborundum Company (Carborundum), as a third party defendant. Prior to announcement for trial O'Shea elected not to prosecute his cause of action and was granted a nonsuit. Bituminous was permitted to proceed as the sole plaintiff seeking to recover the amount of workmen's compensation insurance paid to O'Shea as a result of his injuries. Based upon the verdict of the jury, the trial court rendered a take-nothing judgment against Bituminous and denied Black and Decker recovery against Carborundum. Bituminous appeals from that judgment as to Black and Decker. No one complains on appeal concerning the judgment in favor of Carborundum.

In its first point of error appellant contends that the court erred in not granting it a judgment on the verdict of the jury. We overrule this point. To establish the validity of this point it is incumbent upon appellant to demonstrate that under any possible legal theory the verdict of the jury, when viewed as a whole, must support a judgment for appellant and not the judgment rendered by the trial court.

O'Shea (and the intervenor Bituminous) based his cause of action against Black and Decker on the doctrine of strict liability in that Black and Decker had placed on the market a grinding wheel which was unreasonably dangerous and was known to be unreasonably dangerous to the public when it left the hands of Black and Decker. It was contended that Black and Decker failed to warn O'Shea of the dangers involved in using the grinding wheel. In response to plaintiff's cause of action Black and Decker alleged that O'Shea failed to exercise ordinary care by misusing the grinding wheel and failed to heed the warning concerning the use of a safety guard, all of which proximately caused or contributed to cause the accident and damages complained of by plaintiff.

In answer to special issues four and five the jury found that the grinding wheel in question was unreasonably dangerous at the time it left the hands of Black and Decker and that such dangerous condition was a producing cause of the injuries sustained by O'Shea. ¹

In special issue number nine the court inquired as to whether the grinding wheel 'was misused' in any one or more of the following particulars: (1) improperly transporting; (2) improperly storing; and (3) improperly handling the grinder and cuprock. To each of these questions the jury answered 'Yes.' In answer to special issue number ten the jury found that such misuse was a producing cause of the occurrence in question.

In answer to special issues seventeen and twenty the jury found that neither O'Shea nor his employer Carriker, improperly handled or stored the instrument.

In response to special issues twenty-four, twenty-five and twenty-six the jury found that O'Shea and Carriker did improperly transport the grinder and that such conduct was negligence but was not a proximate cause of the occurrence in question.

In answer to special issue number one the jury found that at the time the instrument was purchased by Carriker or O'Shea it had a label attached which said: 'Use Safety Guard.'

In response to special issue number eleven the jury found that the grinding wheel in question was used in 'disregard of the warnings on the blotter' and that such was a producing cause of the occurrence in question.

Prior to the rendition of judgment, appellant Bituminous, failed to file a motion for judgment Non obstante veredicto to request the court to set aside or disregard the answer of the jury to any of the special issues. It appears, therefore, from a reading of the entire verdict of the jury in this case that the trial court could not have rendered judgment for appellant Bituminous. This is especially true in view of the express finding of the jury on the defensive issues of misuse and failing to heed the warning concerning the use of the safety guard.

Because of the conflicting answers of the jury to the various questions submitted concerning the defense of misuse, which we will discuss at a later point in this opinion, we proceed to a consideration of what we deem to be the primary thrust of appellant's appeal contained in points four through seven inclusive. These points complain variously of the submission of special issue number eleven in which the court inquired generally whether the grinding wheel was used 'in disregard of the warnings on the blotter?' Appellant complains (1) that such issue is global and does not limit the inquiry to O'Shea or Carriker; (2) that it assumes that there was an adequate warning on the blotter; and (3) that the statement 'Use Safety Guard' is not a legally adequate warning. We sustain these contentions.

To place the question of adequate legal warning in its proper perspective and to resolve the question of correctness of the trial court's issue relative to warning, we must consider the factual background of the incident which led to O'Shea's injuries. The record reveals that in 1968 Carriker, O'Shea's employer, purchased a sander-grinder and a grinding wheel cuprock (used as a part of the sander-grinder) from Black and Decker in Dallas, Texas. Both Carriker and other employees, as well as O'Shea, had used the sander-grinder for various purposes prior to O'Shea's injuries on August 4, 1970. During this period Carriker purchased seven or eight new cuprocks to be used in connection with the grinder. According to witnesses for Black and Decker each cuprock sold by the company had a label or 'blotter' attached that contained the following words: 'Warning: Thread wheel on spindle by hand. Do not thread wheel by starting motor. Use safety guard. Maximum safe r.p .m.'s 6045.' According to witnesses for Black and Decker the cuprock is an inherently dangerous product unless a safety guard is used to contain the pieces of the instrument if it breaks while in use. Black and Decker offered safety guards for sale but as a separate item from the cuprock itself. O'Shea and Carriker had never purchased a safety guard to be used on any of the cuprocks purchased by them. At the time of the injury O'Shea was using the sander-grinder and its cuprock to smooth the edges of an automobile wheel. No safety guard was attached to the cuprock at that time.

Neither Carriker nor O'Shea testified that they had seen or read the words claimed by Black and Decker to be on the blotter of each cuprock sold. O'Shea testified that he had no recollection of ever having been given any kind of warning concerning the use of the sander-grinder or the cuprock.

As enunciated in the Restatement (Second) of Torts § 402A (1965), one who sells a product in a defective condition unreasonably dangerous to the user 'is subject to liability for physical harm thereby caused to the ultimate user.' A product is unreasonably dangerous and, therefore, defective if the ordinary man knowing the risks and dangers involved in its use, would not have marketed the product without 'supplying warnings as to the risks and dangers involved in using the product as well as instructions as to how to avoid those risks and dangers.' Technical Chem. Co. v. Jacobs, 480 S.W.2d 602, 605 (Tex.1972); Gravis v. Parke-Davis & Co., 502 S.W.2d 863, 868 (Tex.Civ.App.--Corpus Christi 1973, writ ref'd n.r.e.); Muncy v. Magnolia Chem. Co., 437 S.W.2d 15, 17 (Tex.Civ.App.--Amarillo 1968, writ ref'd n.r.e.); Proctor & Gamble Mfg. Co. v. Langley, 422 S.W.2d 773, 778 (Tex.Civ.App.--Dallas 1967, writ dism'd); Keeton, Products Liability--Inadequacy of Information, 48 Tex.L.Rev. 398, 403 (1970).

The question of adequacy of warning in such a situation has been dealt with extensively by courts in Texas as well as in other jurisdictions. Muncy v. Magnolia Chemical Co., 437 S.W.2d 15 (Tex.Civ.App.--Amarillo 1968, writ ref'd n.r.e.). In Spruill v. Boyle-Midway, Inc., 308 F.2d 79, 85 (4th Cir. 1962) the court appropriately summarized the essential factors of a legally adequate warning by setting forth two essential characteristics: (1) it must be in such form that it could reasonably be expected to catch the attention of the reasonably prudent man in the circumstances of its use; (2) the content of the warning must be of such a nature as to be comprehensible to the average user and to convey a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person. See also Crane v. Sears, Roebuck & Co., 218 Cal.App.2d 855, 32 Cal.Rptr. 754, 757 (1963). As stated in Walton v. Sherwin-Williams Co., 191 F.2d 277, 286 (8th Cir . 1951) the question of whether or not a given warning is legally sufficient depends upon the language used and the impression that such language is calculated to make upon the mind of the average user of the product.

Implicit in the duty to warn is the duty to warn with a degree of intensity that would cause a reasonable man to exercise for his own safety the caution commensurate with the potential danger. Tampa Drug Co. v. Wait, 103 So.2d 603, 609 (Fla.1958); 75 A.L.R.2d 765. This is true because one who sells a product with a high risk of human harm such as a grinding wheel cuprock is legally obligated to provide...