Pearson v. Hevi-Duty Elec.

• Decision Date: 16 April 1981
• Docket Number: No. 17546,HEVI-DUTY,17546
• Citation: 618 S.W.2d 784
• Parties: Gerry Shanelle Hahn PEARSON et al., Appellants, v.ELECTRIC et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 784

618 S.W.2d 784

Gerry Shanelle Hahn PEARSON et al., Appellants, v. HEVI-DUTY ELECTRIC et al., Appellees.

No. 17546.

Court of Civil Appeals of Texas, Houston (1st Dist.).

April 16, 1981.

Rehearing Denied June 11, 1981.

Murphrey, O'Quinn & Cannon, John O'Quinn, Houston, for appellants.

Tekell, Book & Matthews, Kenneth Tekell, Bill Book, Talbert, Giessel & Stone, Alice Giessel, Henry Giessel, Hicks, Hirsch, Glover & Robinson, Arthur Glover, Jr., Paul Anderson, Jr., Houston, for appellees.

Before COLEMAN, C. J., and DOYLE, J.

DOYLE, Justice.

The widow, children and parents of Connie Pearson, deceased, appeal from a take-nothing judgment rendered in a wrongful death action based on strict products liability law.

Connie Pearson was electrocuted while working on a 7200 volt transformer at a Houston apartment complex. Three defendants are involved in the case. Hevi-Duty Electric (HDE) made the transformer and sold it to Houston Electric Distributing Company, Inc. (HEDCO), which in turn sold it to Mr. Pearson's employer, Russell Electric. McGraw-Edison (MGE), the third defendant, made the fused switch and sold it to HDE which used it as a component part in the transformer.

Liability was based on the failure to warn that the fused switch was live in the open position. This switch is a unique design and when MGE manufactured the such switches they attached a special warning to be placed on the product into which they switch was installed. The pressure sensitive adhesive labels stated: "WARNING FUSE OR SWITCH MAY BE LIVE IN OPEN POSITION." The labels were not attached, but were discarded by HDE when they built the transformers. A substitute warning was employed by HDE, but it did not point out the specific switch design, nor did it mention that the fuse or switch may be live in the open position. The substitute warning placed on the red arc strangler of the fused switch had the words: "HIGH VOLTAGE DO NOT TOUCH." The transformer assembly including the fused switch was enclosed in an insulated box which could only be reached by removing the cover, which was stenciled with this warning: "HIGH VOLTAGE REMOVE WITH HOT STICK." This warning was on both sides of the cover.

Trial was to a jury who answered fifteen special issues finding that: (1) HDE did not fail to adequately warn the deceased of the danger that the switch may be live in the open position; (2) MGE's failure to permanently affix a warning that the fused switch may be live in open position did not expose the user to an unreasonable risk or harm; (3) Connie Pearson voluntarily assumed the risk of using the fuse barehanded when power had been supplied to the fuse; (4) a reasonable manufacturer of the MGE fusing assembly would have anticipated and expected a customer such as HDE would attach to the transformer the warning sign it provided; (5) damages in the amount of $115,000.00 would reasonably compensate the widow and four children of the deceased and; (6) the parents of the deceased were not entitled to damages.

Based upon the jury's findings of no liability the court entered the take-nothing judgment. Appellants filed a motion for new trial, which the court overruled. Appellants present 18 points of error.

By their first point of error, appellants assert the jury's finding to special issue 1 is against the great weight and preponderance of the evidence. This special issue 1 read:

Do you find from a preponderance of the evidence that Hevi-Duty Electric failed to adequately warn the deceased Connie Pearson of the danger that the fuse or switch may be live in open position?

Answer "We do" or "We do not".

Answer: We Do Not.

In answer to this special issue the jury first answered: "We do." Later after further oral instruction from the court, the jury deliberated and finally answered: "We do not." The court then rendered the take-nothing judgment.

We deem it appropriate to give a detailed statement of the facts, most of which are undisputed. It should be stated at the outset that no one actually saw the exact manner in which Connie Pearson was electrocuted. One witness concluded that he must have been cocking the fuse. Another testified that he stuck his bare left hand into the transformer immediately prior to being killed. Since all parties tried the case on the theory that Pearson met his death by bringing his hand in contact with the fused switch in some manner, we shall assume that he did for our discussion. A special issue, which we shall discuss later, was requested on this theory.

Pearson was the foreman of the Russell Electric crew which was dispatched to an apartment project to replace a "burned-out" transformer. After shutting off the power at the utility pole, the crew removed and replaced the old transformer with the new transformer manufactured by HDE. Some discussion followed as to how the new transformer should be energized. Pearson, as foreman, decided that the power should be restored prior to closing the fused switch. Since all of the crew were experienced electricians, a question (unanswered by the testimony) arises as to why such a discussion was necessary. The only reasonable deduction is that the crew was faced with an unusual type of transformer with a fusing assembly, the like of which none of them had ever worked on before. Mr. Signaigo, vice president and chief engineer for HDE testified that his engineering department designed the transformer in question and decided to use the MGE fused switch therein. He admitted the MGE furnished the adhesive-backed decals reading: "WARNING, FUSE OR SWITCH MAY BE LIVE IN OPEN POSITION," and that for several years these decals were attached as directed. Thereafter, someone with HDE decided to throw away the MGE warning and replace it with a warning that says nothing about the fuse or switch being "live" in the open position. Mr. Signaigo admitted that the MGE fused switch was unique in design, unusual and strange to people who had not worked with it, in that most switches of a similar nature would be "cold" or "dead" in the open position. The following is typical of Mr. Signaigo's lengthy testimony:

Q. Does any other one of them design their equipment so that the fuse switch is live in the open position?

A. No others that I know of.

Q. So unless Connie Pearson had worked on this type assembly before, then every one he had ever encountered from any other manufacturer was cold in the open position, is that correct?

A. I can't say that. I don't know.

Q. Do you know of anybody else that made one this way?

A. No, I don't.

Q. So if you assumed that he had never worked on a McGraw-Edison one before, then every one he had ever worked around was designed so that it would be cold or de-energized in the open position?

A. I assume so, yes.

Q. You now know that McGraw-Edison designed it this way to be hot in the open position, and that they were aware that this was a unique design, unusual, strange to the people who worked on it, they decided, in big red letters to tell that to whoever is working around the equipment, that is that this design is different from the ones that you are used to. You know that that is what this warning is for, don't you? Is that right?

A. Yes.

Q. Because McGraw-Edison knew, was in a position to know that a man might be misled into thinking that this fuse was cold, because all the others are. Right?

A. Yes, he might.

While admitting that no specific warning was given as to the fused switch's being live in the open position, Mr. Signaigo testified that he thought the general warnings were adequate. However, he also stated that HDE has resumed using the MGE warning since Pearson's death.

Mr. Roald Amundson, a graduate staff engineer for MGE for 39 years testified that MGE had manufactured the fused switch in question; that the company's engineering marketing and legal departments had held discussions and finally decided upon the wording, size and content of the warning that should accompany the fused switch; that MGE's personnel had taken into consideration the fact that most electrical servicemen have been trained that such a fused switch would be cold in the open position; that to his knowledge MGE was the only company that manufactured such a fused switch; and that MGE, because of the uniqueness of the switch recommended and furnished the warning decals free of charge to its customers because MGE felt that it was an important warning and would promote safety.

The seller of a product is legally obligated to provide warnings of dangers that can arise in intended or foreseeable use of the product. Bituminous Casualty Corp. v. Black & Decker Mfg. Co., 518 S.W.2d 868 (Tex.Civ.App. Dallas 1974, writ ref'd n.r.e.). Warnings must be adequate as to both form and content. The warnings must warn and not just instruct the user. Bituminous Casualty Corp. v. Black & Decker Mfg. Co., supra. The adequacy of a warning cannot be evaluated apart from the knowledge and expertise of those who may reasonably be expected to use the product. Martinez v. Dixie Carriers, Inc., 529 F.2d 457 (5th Cir. 1976); Helene Curtis Industries v. Pruitt, 385 F.2d 84 (5th Cir. 1967) cert. denied, 391 U.S. 913, 88 S.Ct. 1806, 20 L.Ed.2d 652 (1968).

Whether a warning is adequate in view of the user and the circumstances is normally a question for the jury. Bituminous Casualty Corp. v. Black & Decker Mfg. Co., supra. It has become well established in Texas that the doctrine of products liability is a viable legal concept and our courts are called upon to interpret its various ramifications with increasing frequency. Helicoid Gage Division of American Chain and Cable Company v. Howell, 511 S.W.2d 573 (Tex.Civ.App. Houston (14th Dist.) 1974, writ ref'd n.r.e.); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967); Shamrock Fuel & Oil Sales Co. v. Tunks, 416 S.W.2d 779 (Tex.1967).

When a product is manufactured for the purpose of use in the stream of commerce, the original...