author: OSBORNE, Judge.

text:
    Danny PEDIGO, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 23, 1967.
    Leland H. Logan, Bowling Green, for appellant.
    Robert Matthews, Atty. Gen., Darryl T. Owens, Asst. Atty. Gen., Frankfort, for ap-pellee.
   OSBORNE, Judge.

This appeal is from a sentence of twenty years’ imprisonment given to appellant as a result of his participation in the robbery of the National Store in Burkesville, Kentucky. The store was broken into on the night of January 5, 1966, and a safe forced open and burglarized of $734.81.

The proof against appellant is that he and three companions were seen in Burkesville on the afternoon before the robbery. They went into the National Store around three or four o’clock in the afternoon and were noticed because of their suspicious conduct. One of them purchased a pillow case and sheets. Later in the day, around 4:45 p. m. a Pontiac convertible automobile, with a red stripe, operated by appellant, was observed in the alley behind the National Store. This same automobile was observed by another witness still later in Burkesville around eight o’clock. Around nine o’clock of the same night, the city police of Glasgow were called to investigate an accident in which an automobile had struck a building. Apparently it had been left unattended and had rolled into the building. When the officers arrived at the scene, appellant came out of a nearby building and locked the car before it was towed away. The officers towed the car to a garage and upon arriving there appellant and one of his companions of the «vening by the name of Walker arrived in a taxi, having followed the towed car. Getting out of the taxi, they unlocked the Pontiac automobile and proceeded to remove articles from it and place them in the taxi. When Walker removed a leather bag containing several tools, a part of which were •observed protruding from the bag, the officers placed both appellant and Walker ■under arrest for the possession of burglary tools. Without following the sequence of •events further, we will only point out that •one of the tools contained in the bag was a drift punch approximately ten inches long, which had the small end broken off. The punch had been purchased the day before by Curtis Pulliam, another of appellant’s ■companions. Upon investigation of the safe which had been burglarized, the officers found contained in the lock the steel tip of •a punch which had been broken off. When this was fitted to the punch found in the bag being removed from the automobile by appellant and his companion, the fit was perfect. There is no doubt but what the punch in the bag was used in the robbery. •On a trial before a jury, appellant was found guilty. He now insists that there was not sufficient evidence to support the verdict of guilty. We believe this contention is so void of merit that it requires no comment from us other than to point out the •evidence of guilt was overwhelming.

Appellant next contends that the punch, which was the chief incriminating item of evidence, should not have been introduced. The basis on which the objection to the introduction of the burglary tools was made was their remoteness. Appellant did not at the time of the trial object to the legality of the arrest or of the search nor did he rely upon this in his ■motion and grounds for a new trial. The ■contention is raised for the first time upon this appeal and therefore is not entitled to review. See Grider v. Commonwealth, Ky., 398 S.W.2d 496; Lewis v. Commonwealth, Ky., 318 S.W.2d 857; Etherton v. Commonwealth, Ky., 335 S.W.2d 899.

Appellant makes other allegations of error concerning the introduction of testimony which we deem to be without merit.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: MILLIKEN, Judge.

license: Public Domain

text:
    ESTILL COUNTY FARM & HOME SUPPLY COMPANY et al., Appellants, v. William C. PALMER, Appellee.
    Court of Appeals of Kentucky.
    June 23, 1967.

      Charles Wylie, Wylie & Sloan, Lexington, Paul D. Rehm, Versailles, for appellants.
    P. J. Flaherty, Shumate, Shumate & Fla-herty, Irvine, for appellee.
   MILLIKEN, Judge.

William C. Palmer, a 75-year old skilled cement worker and carpenter, was found to be permanently and totally disabled after an injury incurred while working on a building being constructed by and for the Estill County Farm & Home Supply Company. He was awarded compensation accordingly, part payable from The Special Fund supervised by the Workmen’s Compensation Board, and the award was affirmed by judgment of the Estill Circuit Court. The sole issue on this appeal is whether the Board was correct in concluding that Palmer was an employee rather than an independent contractor.

Palmer testified that one of the partners of the Supply Company, Orville Meade, telephoned him to ask his help on construction of a building for the Supply Company which was then underway; that they wanted him to help finish the building; that he was paid 12½ cents for each concrete block laid and, later was paid at the rate of $2.50 an hour for carpentry work. He worked steadily, about forty hours a week, from April to August, 1964, when his injury occurred. There was not much need of supervision because the building was laid out when Palmer started to work, but Orville Meade stopped periodically to tell him what to do. Palmer testified that no Social Security or income tax deductions were taken from his earnings. He had had two other repair jobs in 1964 for other persons and his total earnings from all his jobs for that year were approximately $2,000.

No testimony was offered by the employer except that given by medical witnesses, so Palmer’s testimony as to the circumstances of his working arrangement was uncontradicted. He stated that he bought no supplies for the construction work and employed none of the men on the job. Orville Meade, a partner in the Supply Company, testified by deposition, over objection of the Company’s counsel, that Palmer was the Supply Company’s employee and he had listed Palmer’s occupational classification with the Supply Company’s insurer for Workmen’s Compensation.

We have here a situation where a building supply company had undertaken to build its own building and needed skilled help to accomplish it. In this respect it is distinguishable from the usual arrangement where a general contractor has been hired or contracted to erect the building, supplying the necessary skilled personnel to do it. The fact that Palmer was a skilled workman, capable of exercising his skill without general supervision and using his own tools on the job, does not in our judgment preclude his being an employee. Here, he was hired to do particular work, albeit for an indeterminate length of time, work which the Company was undertaking to do for itself with the help of some of its regular employees. Palmer was not contacted to supervise the work, but to do skilled work for the Company on a special job it was undertaking to do for itself.

Is the legal relationship created here much different than it would be if the Company should hire a girl stenographer to do work which the Company’s regular secretarial staff could not do for lack of time, or to do special stenographic work at the Company’s office which it usually had farmed out to a public stenographer or addressing service to do for it? Both Palmer and the extra typist are skilled people, need to be told what they should work at, but do not ordinarily need supervision while doing it. Furthermore, the Company is a business entity which employs labor to carry on its work, and its undertaking to build its own building was a part of its work at the time Palmer was contacted. It is not a man’s skill which determines his legal relationships with others, but rather the circumstances invoking the use of his skill which are the determinants.

The appellant complains that the testimony of Orville Meade, one of the partners in the Company, that he had listed Palmer’s occupational classification with the Company’s Workmen’s Compensation insurance carrier was improperly considered because it was given on rebuttal and should have been introduced in chief if admitted at all. It was the statement of an important fact and, therefore, relevant. We have held that deviation from the order of proof before administrative boards and before a court when a jury is not involved, was not prejudicial. Jacobs v. Alcoholic Beverage Control Board, Ky., 299 S.W.2d 613 (1957); Perry McGlone Construction Company v. Shaw, 283 Ky. 84, 140 S.W.2d 829 (1940). The Workmen’s Compensation Board is not required to follow strict technical rules of common law procedure. KRS 342.260. Even in jury cases, the trial court is permitted wide discretion in the order of evidence. Marlowe Construction Company v. Jacobs, Ky., 302 S.W. 2d 612 (1957), citing CR 43.02(3 and 4).

We conclude that there was substantial evidence to support the Board’s finding that Palmer was an employee.

The judgment is affirmed.

All concur.


author: STEINFELD, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, V. Leo ROSENBLATT and Dorothy Rosenblatt, His Wife, Appellees.
    Court of Appeals of Kentucky.
    June 23, 1967.

      Robert F. Matthews, Atty. Gen., H. C. Smith, Sp. Asst. Atty. Gen., Department of Highways, Frankfort, M. T. Quinton, Jr., Madisonville, for appellant.
    Clarence Bartlett, Woodward, Bartlett & McCarroll, Owensboro, for appellees.
   STEINFELD, Judge.

The Commonwealth sued Leo and Dorothy Rosenblatt in the Hancock County Court to condemn some of their land which the Department of Highways needed for the construction, reconstruction, alteration and relocation of the approach to the Hawesville-Cannelton Bridge, KRS Chapter 177. The Commissioners awarded the owners $2,000.00. KRS 177.083. The Ro-senblatts appealed to the circuit court. KR S 177.087. After trial, the jury found that the value of the land before the taking was $27,000.00, the value thereafter was $13,-500.00 and that the Rosenblatts were entitled to recover $13,500.00. Judgment was entered accordingly from which the Commonwealth has appealed.

The land was located at the corner of East Main Street and Clay Street, two improved thoroughfares, in Hawesville, Kentucky. The tract was made up of two lots approximately 1/2 block distance from the Court House. The corner lot fronted 66 feet on Main Street and extended back an equal distance throughout along Clay Street a distance of 209 feet. The other lot, which we will refer to as the “home lot”, had frontage along Main Street of 381/2 feet and a depth of 209 feet and was contiguous to the corner lot. Both of these lots extended to an alley which opener onto Clay Street. This alley furnished ingress and egress for vehicles entering and leaving the Rosenblatt property. Located on the corner lot was a house trailer (mobile home) to which had been added an extra room. There were large shade trees, fences and walkways. A concrete walk ran along Main Street in front of the corner lot and the home lot. A grass sidewalk was located along the Clay Street side of the corner lot, and on that side, about 65 or 70 feet from Main Street there was a stone retaining wall which varied in height but the maximum did not exceed six feet.

On the home lot was a two story frame residence containing six bedrooms, a large living room, dining room, kitchen, 21/2 baths and some halls. There was a basement under part of the house. A garage was located to the rear of the residence and it and the residence were in good condition. There were large shade trees on and in front of this lot; there were fences and walkways.

On January 5, 1965, the Department of Highways permanently took 3,150 square feet- of land out of a total of 23,864 square feet. The portion taken started on Main Street approximately 66 feet from the Clay Street corner and about at the point where the division line between the home lot and the corner lot touched Main Street. The area taken ran in the direction of the corner of the two streets, rounded that corner and then extended along Clay Street to the rear of the corner lot at the alley. The part permanently taken was shaped somewhat like a “boot” with the sole along Main Street, the heel at the Clay Street corner and the top of the “boot” at the alley. The “instep” was the widest part being approximately 30 feet. The “toe” was only inches in depth while the “top” was about 20 feet in width. About 35 feet of the frontage of the home lot on Main Street was not disturbed.

Certain shade trees on the lots and in the road right of way were destroyed and the old stone retaining wall was removed. This wall was replaced with a concrete retaining wall rising to a height of between eleven and thirteen feet at the alley. Clay Street was destroyed and the alley was closed at the Clay Street end.

In addition to the foregoing the Commonwealth took some land temporarily to he used only during construction.

The Commonwealth complains that the jury heard, and was permitted to consider testimony concerning noncompensable factors, and that all of the witnesses who testified for the Rosenblatts used one or more of those factors in arriving at the values which they testified was the worth of the property. It contends that this resulted in an excessive verdict. The qualification of the witnesses who testified is not in issue.

One of two witnesses who testified for the Commonwealth said that the value before the taking was $18,000.00 and the other $18,500.00. They stated that after the taking the value was $16,000.00 and $16,-500.00 with the difference being $2,000.00. The Rosenblatts presented nine witnesses. The highest value stated by any of them before the taking was $39,000.00 and the lowest $28,000.00. The testimony of those witnesses was to the effect that the value after taking ranged from a low of $10,000.-00 to a high of $15,000.00. The minimum difference in value which they stated was $15,000.00 and the maximum $29,000.00.

The Commonwealth claims that over its objection these witnesses were permitted to testify to such items as circuity of travel, the value of the property to the owner, restriction of access, re-routing of public highways and loss of trees not on the owners’ property. The Commonwealth insists that these elements of damage are legally noncompensable and cites the following cases: Com., Dept, of Highways v. Adkins, Ky., 396 S.W.2d 768; Com., Dept, of Highways v. Darch, Ky., 374 S.W.2d 490; Com., Dept, of Highways v. Tyree, Ky., 365 S.W. 2d 472; Com., Dept, of Highways v. Callihan, Ky., 391 S.W.2d 374; Com., Dept, of Highways v. Carlisle, Ky., 363 S.W.2d 104; Com., Dept, of Highways v. Lanter, Ky., 379 S.W.2d 748; Com., Dept, of Highways v. Scott, Ky., 385 S.W.2d 330.

At the conclusion of the testimony of each of the condemnees’ witnesses, counsel for the Commonwealth moved to strike the testimony of that witness or that the witness be required to revise his figures by eliminating the improper factors which he had used and to give an opinion based on permissible factors alone. Com., Dept, of Highways v. Shaw, Ky., 390 S.W.2d 161. The motions were overruled, except that at the conclusion of the testimony of one of them, when the attorney for the Commonwealth objected, the court admonished the jury not to consider loss of accessibility or inconvenience, or the loss of shade trees not on either of the two lots. When all of the evidence had been presented that attorney again moved the court to strike the testimony of all the witnesses who testified for the Rosenblatts again relying upon Com., Dept, of Highways v. Shaw, supra. The motion was overruled but the court admonished the jury as follows:

“Gentlemen of the Jury, it appears maybe our plan of introduction of evidence has changed to some extent — Gentlemen, you will not consider any evidence as to the availability of this lot, or the inconvenience that these people might have by a change of the passage ways in to that property. Disregard the evidence that has been introduced on that subject and give it no consideration whatever. Likewise, gentlemen, you will not consider the loss of the shade trees, unless they were on the property of Mrs. Rosenblatt. If they were on and an integral part of their estate down there, then you will consider the loss of those trees, but not otherwise.”

It will be observed that the admonition did not have the effect of striking the testimony of the witnesses as to values. The witnesses were not required to revise their figures. Com., Dept, of Highways v. Woolum, Ky., 415 S.W.2d 83 (decided May 12, 1967).

We have carefully examined the testimony of each and every witness presented by the Rosenblatts. Without exception, we find that each witness used legally noncompensable factors in determining the before taking or the after taking value. The main consideration seems to have been the change that was made in the access of the land to and from the streets and alley and the resulting circuity of travel. After the taking there was approximately 35 feet frontage on Main Street which gave to the Rosenblatt property reasonable access. Loss of access is not legally compensable and resulting damage cannot be attributed thereto as long as the property owner retains reasonable means of access. Com., Dept, of Highways v. Lawton, Ky., 386 S.W.2d 466; Sloan v. Com., Dept, of Highways, Ky., 405 S.W.2d 294. “If it appears that the landowner will be subjected merely to circuity of travel (within reasonable limits) * * * ” this circumstance may not be considered “in arriving at the reduced value of the remaining property.” Com., Dept, of Highways v. Adkins, Ky., 396 S.W.2d 768. It was error not to sustain the motions to either strike testimony or require the witness to revise their estimate after eliminating improper factors.

The Commonwealth claims that the verdict was excessive but since we are reversing on other grounds it is unnecessary that we consider that question.

The judgment is reversed for a new trial consistent with this opinion.

All concur.


author: PER CURIAM

text:
    GULF COAST INVESTMENT CORPORATION, Petitioner, v. LAWYERS SURETY CORPORATION, Respondent.
    No. B—138.
    Supreme Court of Texas.
    May 24, 1967.
    Urban, Coolidge, Pennington & Heard, Bryan W. Scott, Houston, for petitioner.
    L. Alexander Lovett, Houston, Lawrence W. Vance, Dallas, for respondent.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM

On the authority of Hatcher v. State, 125 Tex. 84, 81 S.W.2d 499, 98 A.L.R. 1213, the Court of Civil Appeals has held that a suit against a notary public and his bonding company for falsifying an acknowledgment is governed by the two-year statute of limitations. 410 S.W.2d 654. We are in agreement with this holding, and accordingly disapprove Standard Accident Insurance Company v. State, Tex.Civ.App., 57 S.W.2d 191 (wr. dis.), in so far. as it is in conflict therewith. The plaintiff here did not attempt to prove when it discovered that the notary’s certificate is false or when the same should have been discovered. No question is presented, therefore, as to when the statute of limitations began to run. The application for writ of error is refused; no reversible error.


author: NORVELL, Justice. GRIFFIN, Justice.

text:
    SHAMROCK FUEL & OIL SALES CO., Inc., Keith L. Ward and Johnny Hale, Relators, v. Honorable Bert H. TUNKS, District Judge, William Earl Munsinger and Omy Ray Munslnger, Respondents.
    No. A-11753.
    Supreme Court of Texas.
    June 7, 1967.
    Dissenting Opinion June 21, 1967.
    Rehearing Denied July 5, 1967.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Russell Talbott, McGregor, Se-well, Junell & Riggs, Ben G. Sewell, Houston, for relators.
    Bracewell & Patterson, Joseph Jaworski and John R. Cope, Houston, for respondents.
   NORVELL, Justice.

Shamrock Fuel & Oil Sales Co., Inc., Keith L. Ward and Johnny Hale, relators, seek an original writ of mandamus ordering Hon. Bert H. Tunks, Judge of the District Court of Harris County, 113th Judicial District of Texas, to render judgment upon an admittedly incomplete special issue jury verdict. Our authority to order a judge of a district court to render judgment upon a verdict is derived from Article 5, § 3 of the Texas Constitution, Vernon’s Ann.St. and Article 1734, Vernon’s Ann.Tex.Stats. The statutory enactment provides that this Court may “compel a judge of the district court to proceed to trial and judgment in a cause agreeable to the principles and usages of law, * * In this particular, the Supreme Court has concurrent jurisdiction with the Courts of Civil Appeals. Article 1824 provides that, “Said Courts [of Civil Appeals] * * * may issue the writ of Mandamus to compel a Judge of the District or County Court to proceed to trial and judgment in a cause, * * *”

In accordance with the usual practice applicable to situations involving concurrent jurisdiction, Houtchens v. Mercer, 119 Tex. 244, 27 S.W.2d 795, Id. 119 Tex. 431, 29 S.W.2d 1031, 69 A.L.R. 1103 (1930), Appellate Procedure in Texas, § 1.4 [1], the relators first applied to the Court of Civil Appeals. That court refused to grant the writ of mandamus, 406 S.W.2d 483, whereupon the relators made application here.

William Earl Munsinger and his son, Omy Ray Munsinger, a minor, sued rela-tors for injuries sustained by the minor plaintiff when he attempted to make use of kerosene allegedly adulterated with gasoline. Trial to a jury resulted in an incomplete verdict which was not accepted by Judge Tunks and a mistrial was declared.

A total of 43 issues was submitted and 24 of them were not answered by the jury. Six of these issues were not answered because under the instructions of the court, the jury was not required to answer them because of its answers to preceding questions. One issue inquired if the minor plaintiff knew and appreciated the extent of the dangers in the use he made of the liquid (kerosene). This inquiry was not answered nor was the conditionally submitted question which immediately followed inquiring if said minor voluntarily exposed himself to such danger. However, the jury found that the minor plaintiff was contributorily negligent in directing his brother to pour the liquid (kerosene adulterated with gasoline) upon a smoldering stick which he had taken from an incinerator and placed in a toy truck, and that such negligence was the proximate cause of his injuries sustained as a result of an explosion which took place.

Plaintiffs’ action was predicated upon negligence and upon a warranty implied by law (strict liability in tort) based upon the proposition that the defendants, Shamrock Fuel & Oil Sales Co., Inc. and others, had sold a product in a defective condition which was unreasonably dangerous to the user. Relators present two contentions, namely, (1) that as there was neither pleading nor proof of privity of contract between any of the relators and the injured minor plaintiff, this Court should order the trial court to render judgment that plaintiffs take nothing against them, and (2) that because the jury found that the minor plaintiff was guilty of contributory negligence, this Court should direct the trial court to render a take nothing judgment.

Because of limitations upon the mandamus remedy, the first question stated is not properly before us. This is not a case in which it is contended that some of the jury’s answers taken in connection with certain undisputed facts would call for a judgment in favor of the defendants, O’Meara v. Moore, 142 Tex. 350, 178 S.W.2d 510 (1944), but the argument is that no cause of action was stated or proved in the absence of a pleading and evidentiary showing of privity of contract. The power with which we are here concerned is that of ordering a judgment to be rendered upon a verdict which is classified as a ministerial act involving no exercise of judicial discretion. Lloyd v. Brinck, 35 Tex. 1 (1871), Gulf, Colorado & Santa Fe Ry. v. Canty, 115 Tex. 537, 285 S.W. 296 (1926). The authority vested in the appellate courts under Articles 1735 and 1824, insofar as the rendition of judgment is concerned, is restricted to the ordering of the ministerial act of rendering judgment upon the verdict and does not extend to the judicial function of determining whether a petition states a cause of action, Jackson v. McKinsey, 12 S.W.2d 1044 (Tex.Civ.App. 1928, Original Mandamus), or whether the undisputed evidence demonstrates that a judgment should be rendered as a matter of law, i. e., that a verdict should be directed or a judgment, non obstante veredicto, rendered, American Bottling Co. v. Briggs, 232 S.W.2d 103 (Tex.Civ.App. 1950, Original Mandamus), Appellate Procedure in Texas, Original Jurisdiction of the Courts of Civil Appeals to Issue Extraordinary Writs, § 1.4 [2], 8 Sw.L.J. 389 (1954).

In considering the second question, whether contributory negligence is a defense to an action based upon strict liability, we must necessarily accept the hypothesis that the pleadings and proof support a recovery based upon strict liability unless defeated by the issues answered by the jury relating to contributory negligence, because we may not by mandamus invade the realm of judicial discretion, but are limited to directing the performance of a ministerial act. Lowe & Archer, Injunction and Other Extraordinary Proceedings, §§ 471, 478 and 480.

Both the District Court and the Court of Civil Appeals, 406 S.W.2d 483 (on application for original mandamus), have held that the jury’s answers to Special Issues Nos. 36 and 37 do not constitute a bar to recovery in a strict liability case. By its answers to these issues, the jury found that the minor plaintiff was negligent in directing his brother to pour the liquid in a black can (allegedly adulterated kerosene) on a stick and toy truck and that such negligence was a proximate cause of the burns sustained by such plaintiff.

Negligence and ordinary care as applicable to the minor plaintiff were defined as follows:

“By the term ‘negligence’ as used in this Charge is meant the failure to use ordinary care.
“By the term ‘ordinary care’ as used in this Charge and as applied to the minor plaintiff, Ray Munsinger, means such care as an ordinarily prudent child of the age, intelligence, experience and capacity of the said Ray Munsinger would have exercised under the same or similar circumstances.”

There is conflict in the rules laid down in the decided cases as to the nature and scope of the contributory negligence defense in strict liability cases. Compare, Nelson v. Anderson, 245 Minn. 445, 72 N.W.2d 861, 865 (1955), and Vassalo v. Sabatte Land Co., 212 Cal.App.2d 11, 27 Cal.Rptr. 814 (1963). See, generally, An-not., 4 A.L.R.3d 501 (1965). The Supreme Court of New Jersey, which was one of the first courts to recognize this class of action, has recently said that where a plaintiff “fails to act as a reasonably prudent man in connection with use of a warranted product or one which comes into his hands under circumstances imposing strict liability on the maker or vendor or lessor, and such conduct proximately contributes to his injury, he cannot recover”. Maiorino v. Weco Products Co., 45 N.J. 570, 214 A.2d 18 (1965), following Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 212 A.2d 769 (1965). It seems, however, that the weight of authority is contrary to the view expressed by the New Jersey court.

Dean Prosser points out that much of the divergence of opinion among the decided cases is more apparent than real. He says:

“There has been ostensible, and quite superficial, disagreement 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 number have said quite as flatly that it is. The conflict is, however, more apparent than real. If the cases are examined, it readily appears that those which refuse to allow the defense have been cases in which the plaintiff negligently failed to discover the defect in the product, 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 permitted 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 negligence which consists of deliberately and unreasonably proceeding to encounter a known danger, and overlaps assumption of risk. They are quite consistent with the general rule that this is a defense to strict liability. There are only a few cases which have recognized the distinction; but it seems quite clear that it is made in fact.” (Prosser, Law of Torts [3d Ed.] 656.)

A shorter but similar statement is contained in Dean John W. Wade’s article on Strict Tort Liability, 19 Sw.L.J. 5, 1. c. 21:

“The cases appear to be in disagreement as to whether contributory negligence of the plaintiff bars his recovery in an action for strict products liability. In general, however, they can be reconciled by adverting to the customary distinction between contributory negligence and assumption of risk. If the plaintiff’s negligence was in failing to discover the unsafe condition of the product he can usually recover; if his negligence was in continuing to use the product after learning of the dangerous condition, his recovery is usually barred.”

In 2 Restatement of the Law of Torts (2d Ed.) 356, in Comment (n), Contributory Negligence, under § 402A (cited and quoted by the Court of Civil Appeals), it is said:

“Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover 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 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 unreasonably proceeds to make use of the product and is injured by it, he is barred from recovery.”

We agree with the rationale stated by the Court of Civil Appeals that “in a case such as this a plaintiff would not be barred from recovery even though his injury was caused in part by his failure to test the kerosene, or by his failure to foresee that the kerosene might have a dangerously low flash point and to guard against such a possibility.” ;

In a separate argument, the relator, Johnny Hale, the operator of an automobile service station, argues that the contributory negligence findings of the jury in answer to Special Issues Nos. 36 and 37 should be construed as a finding that the minor plaintiff was making an ‘’improper use” of the product when he instructed his brother to pour the kerosene upon a glowing or smoldering stick. He points out, and we agree that, “this area of the law is permeated with semantic problems, * * * (and that) principles of contributory negligence and assumption of risk may overlap considerations of proximate cause, the duty to mitigate damages, the duty of a buyer to inspect, the failure of a buyer to rely on a warranty, etc. * * * ” 4 A.L.R.3d 501, 1. c. 503. One or more jurors may have believed that the child “misused” the product. Others may have believed that he knew the product was dangerous yet persisted in its use. All may have agreed that the child’s behavior was sub-standard under the “reasonably prudent” test. Here it is not necessary to decide and hence we make no holding upon the issue of “improper use”, or whether, if allowable, it is a defense, or if the showing of a proper use is properly regarded as a part of a plaintiff’s action.

It may be argued that improper use or voluntary persistence in use after discovery of danger is encompassed within the prudent man inquiry as stated in the contributory negligence issues given by the court, but the point is that such issues Nos. 36 and 37 do not submit the legitimate defenses available to one from whom damages are sought under the doctrine of strict liability. Compare, Scott v. Liebman, 404 S.W.2d 288 (Tex.Sup.1966). A manufacturer or distributor of products is not an insurer. As pointed out by Dean Prosser, a plaintiff may be barred from recovery when, after actual discovery of the dangerous propensities of an article or product, he persists in its use and thus assumes the risk of injury by its continued use. This voluntary exposure to risk may not be the only type of action or failure to act that may bar a plaintiff’s recovery and we do not mean to infer that it is, but these defenses, voluntary exposure and such others as may be recognized should be submitted specifically and not under the formula embraced by the contributory negligence issues (Nos. 36 and 37) employed in this case. Such form of submission embraces a failure to discover a defect or to guard against the possibility of its existence which under the'greater weight of authority is not a defense to the action. Under modern conditions of advertising and marketing, there exists a strong consumer reliance upon the integrity of the manufacturer and vendor of a product. The representation of safety in use is not restricted to those consumers of the reasonably prudent variety. It would be incongruous to hold that one could not recover upon the representation that a product was safe because he had failed to meet the test of the reasonably prudent man in discovering that the representation was not true. “Consumer reliance upon the integrity of the manufacturer and his product is the foundation of warranty liability. It therefore appears that, short of actual knowledge of a defect [or circumstances charging him with knowledge as a matter of law] , and continued use of the product with such knowledge, the consumer’s failure to conform to the standard of care of the reasonably prudent man when using the defective product may merely be a manifestation of his reliance upon both the reputation of the manufacturer and his product.” Comment, Contributory Negligence as a Defense to Warranty Actions, 39 Temple Law Quarterly, 361, 363 (1965— 1966).

The petition for mandamus is denied.

GRIFFIN, J., dissenting.

DISSENTING OPINION

GRIFFIN, Justice.

I can agree on the doctrine of strict liability with my brethren in this case, but I cannot agree that contributory negligence should not be a defense to a suit by a party upon the “warranty” or tort doctrine.

In this case the jury has found that Ray Munsinger was guilty of negligence in directing his brother to pour the liquid purchased by Ray Munsinger’s father as kerosene upon a smoldering stick which he had taken from an incinerator and placed in a toy truck. The jury also found that such negligence was a proximate cause of his injuries sustained as a result of the explosion.

The trial judge defined “negligence” as the failure to use ordinary care. “Ordinary care” was defined, “ * * * as applied to the minor plaintiff, Ray Munsinger, means such care as an ordinarily prudent child of the age, intelligence, experience, and capacity of the said Ray Munsinger would have exercised under the same or similar circumstance.” (Emphasis mine.)

The effect of the jury findings on the issues of negligence and proximate cause is that Ray Munsinger did not exercise the care of a child of his age in his actions and conduct in handling and dealing with the liquid in the can. This being true, I just cannot agree that Ray should be excused from his own negligence and permitted to recover. I do not understand that a manufacturer, distributor, or retailer of any product can be charged with foreseeing any one in his right mind would fail to use ordinary care in his actions and conduct toward, or with, such product. Surely, a manufacturer, distributor, or retailer is not to be mulcted in damages for the one and only reason that he put the product in circulation.

The ordinarily prudent child [person] is a well recognized test for measuring conduct of others in practically all cases, therefore, I cannot agree it should not be the test in a strict liability case.

The rule announced by the majority opinion is the minority rule in the United States. The quotation from Dean Prosser set out in the majority shows this to be true. Read the following language from such quotation:

“There has been ostensible, and quite superficial, disagreement 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 number have said quite as flatly that it is.” (Emphasis mine.)

Then Dean Prosser sets out what he considers good reason for reconciling the conflict in favor of the “few decisions.” I do not agree and prefer the rule followed by the “greater number.”

      I. The relators, Shamrock Fuel & Oil Sales Co. and Keith L. Ward were distributors of petroleum products and had delivered the kerosene (alleged to have been adulterated) to Johnny Hale who operated a Gulf filling station. Certain refiners were originally made parties but the court instructed a verdict in their favor apparently upon the theory that the product was not defective when it left the refinery, but that adulteration took place thereafter. The Court of Civil Appeals in an opinion rendered in a mandamus proceeding noted that “there was evidence that at the time of the explosion (which injured the minor plaintiff) the kerosene was adulterated by the addition of gasoline to the extent that the flash point of the kerosene was lower than that specified by Article 1104, Vernon’s Ann.P.C.” See, Tex.Civ.App., 406 S.W. 2d 483, 484, 485.

      . As to the requirement of privity of contract in strict liability cases, see, McKisson v. Sales Affiliates, Inc., Tex., 416 S.W.2d 787, decided this day.

      .- By Special Issues Nos. 31 and 32, the trial judge submitted the defense of assumed risk or voluntary exposure. These issues which were not answered by the jury read as follows:
      “Do you find from a preponderance of the evidence that Bay Munsinger knew and appreciated the extent of the dangers involved in the use being made of the liquid in the black can at the time of the occurrence in question?
      “If you have answered, Special Issue No. 31 ‘We do’ and only in that event, then answer:
      “Do you find from a preponderance of the evidence that Bay Munsinger voluntarily exposed himself to such dangers?”

      . As stated in Decker & Sons v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942), the “breach of warranty” concept discussed in strict liability cases is essentially one of tort and not contractual in nature. However, while the doctrine imposes an obligation sounding in tort, liability is not based upon negli- - gence. 2 Restatement of Torts (2d Ed.) 347, § 402A, Comment (n).

      S. The use of the term “assumption of risk” may involve semantic difficulties, particularly in those jurisdictions, including Texas, where the phrase has been used to designate a specific doctrine applicable to definite contractual relationships such as master and servant. The Latin maxim, “volenti non fit injuria”, is sometimes used to designate the doctrine of voluntary exposure to risk in non-contract cases. See, Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607, l.c. 610 (1952), and Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172 (1951). There can be no objection to using the phrase ■“assumption of risk” in a non-technical sense in a case which does not involve a master and servant relationship so long as it is clearly understood that it is being used to describe a person’s actions and not to designate a particular doctrine, which doctrine as pointed out in ScMller, has a limited scope. This was •done in Scott v. Liebman, 404 S.W.2d 288 (Tex.Sup.1966). In an address on Assumption of Risk, published in 16 Baylor Law Review 111 (1964), Justice Green-kill said:
      “As you know, we have two different concepts of assumed risk: (1) the no-duty cases applicable to occupier-invitee situations, and (2) the volenti cases (volenti non fit injuria) applicable on the occupier’s premises and also to other assumed risk situations. I will attempt to refresh your memories on the differences. But in general, both will be referred to as ‘assumed risk’ cases. To illustrate the confusion, you know that the Texas Supreme Court in Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172 (1951) held that ‘assumed risk’ applied only to master and servant cases; but volenti (the same thing) applied in non-master and servant cases.”
      As to assumption of risk and volenti ■non fit injuria, Professor Robert E. Keeton observes that:
      “It has often been said that there is no substantive difference between assumption of risk and volenti non fit injuria, although as a matter of customary terminology in some courts assumption of risk applies only in employer-employee cases or only in cases of contractual relationships, whereas the volenti doctrine applies to other ✓ situations. E.g., Terry v. Boss Hotels, Inc., 376 S.W.2d 239 (Mo.1964) (plaintiff slipped and fell on dance floor, which he admitted he realized was too heavily waxed; proper to submit the defense to the jury); Wood v. Kane Boiler Works, Inc., 150 Tex. 191, 238 S.W.2d 172 (1951) (inspector killed when pipe burst during tests; defense failed for want of showing full appreciation of risk). Long preservation of a distinction in terminology, however, is bound to invite explanations that there really is a difference. No distinction is made between the two in this Article. It will be well if courts continue to resist the temptation to give different substantive or procedural effects to these two theories of what is in essence one and the same defense.” See footnote, Robert E. Keeton, Assumption of Products Risks, 19 Sw. L.J. 61.
      It is quite obvious that the terms “assumption of risk” and “voluntary exposure to risk” are used in many areas of the law, such as “on premises cases”, “off premises cases”, “products liability cases” and “master and servant cases”, and that these phrases take their meaning from the context in which they are used and the type of case involved. Depending upon these considerations, for example, these phrases may connote a definite specific risk or refer more generally to all risks incident to a particular operation or occupation. As a matter of valuing precedents, the type of case is of importance.

      . Hale also says that he purchased the allegedly adulterated kerosene from a reputable supplier; that the kerosene was delivered through a hose directly from the supplier’s transport truck to his sealed drum kerosene container; that he had no opportunity to examine or test the product and that the kerosene was not sold to the minor plaintiff by Hale, but was sold to the father, William Mun-singer. On the basis of these facts, he argues that there was no privity of contract between him and the injured minor, Omy Ray Munsinger, and that privity is essential to the Munsingers’ cause of action. For the reasons heretofore discussed, the writ of mandamus does not operate to control judicial discretion and would be unavailable to afford the relator Hale the relief he seeks even if it be assumed that the proposition asserted by him be sound. As to the privity requirement, see McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, this day decided; Decker & Sons v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942); and Griggs Canning Co. v. Josey, 139 Tex. 623, 164 S.W.2d 835, 142 A.L.R. 1424 (1942). Compare, Bowman Biscuit Co. of Tex. v. Hines, 151 Tex. 370, 251 S.W.2d 153 (1952).

      . The Court of Civil Appeals, after holding that the minor plaintiff’s failure to test the kerosene or failure to discover its dangerously low flash point and guard against it would not bar his recovery, said:
      “He would, however, be barred if he misused the product, that is, if, by reason of the manner in which he used the product, he would have been injured had the kerosene conformed to the statutory standard, or if, knowing that the kerosene was defective and of the danger of an explosion, he fails to exercise reasonable care to avoid the threatened harm.” 406 S.W.2d 483, l.c. 490.

      . In Halepeska v. Callihan Interests, 371 S.W.2d 368 (Tex.Sup.1963) the court said:
      “Logically, a plaintiff cannot make an intelligent choice to confront a risk if he does not actually know of the danger, or know such facts as would in law charge him with knowledge of the danger and appreciation thereof. Thus, while the cases speak of the requirement of actual knowledge and appreciation, the plaintiff may not close his eyes to obvious dangers; and he may not recover where it is shown that he is in possession of facts from which he would be legally charged with appreciation of the danger. Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952).”

      . Some authorities proceed upon the theory that an implied warranty raised by policy considerations is closely akin to an expressed contractual warranty. This is sometimes given as a basis for holding that a failure to discover the dangerous propensities of a product is not a defense to the implied warranty because it would not be a defense to a suit upon an expressed warranty. See, Dagley v. Armstrong Rubber Company, 344 F.2d 245 (7th Cir. 1965), citing Hansen v. Firestone Tire and Rubber Co., 276 F.2d 254 (6th Cir. 1960). In this state, the implied warranty “is not the more modern contractual warranty, but is an obligation imposed by law to protect public health”. It is a tort concept. Decker & Sons v. Capps, 139 Tex. 609,164 S.W. 2d 828, 142 A.L.R. 1479; Griggs Canning Co. et al. v. Josey, 139 Tex. 623, 164 S.W.2d 835, 142 A.L.R. 1424 (1942). This implied warranty raised by law, or strict liability to the consumer, being a creature of policy, the allowable defenses thereto are likewise controlled by policy. The analogy between this form of implied warranty and a contractual expressed warranty does not derive its validity from a supposed similarity of origin between the two, but from the fact that experience has shown that the denial of a defense based upon a failure to discover danger and guard against it, has proven just in expressed warranty situations and should prove suitable in factual similar cases based on strict liability. The argument is not based solely upon abstract logic, but is primarily drawn from experience and empirical data.


text:
    L. A. McKISSON, Petitioner, v. SALES AFFILIATES, INC., Respondent.
    No. A-11814.
    Supreme Court of Texas.
    June 7, 1967.
    Dissenting Opinion June 21, 1967.
    Rehearing Denied July 5, 1967.

      Merchant & Barfield, Wayne B. Barfield, Amarillo, W. James Kronzer, Houston, for petitioner.
    Simpson, Adkins, Fullingim & Hankins, John D. Curtis, Amarillo, for respondent.
   NORVELL, Justice.

Section 402A of the American Law Institute’s Restatement of the Law of Torts (2d Ed.), hereinafter referred to as the Torts Restatement, reads as follows:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
“(a) the seller is engaged in the business of selling such a product, and
“(b) it is expected to and does reach the user or consumer 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, and
“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

Insofar as foodstuffs for human consumption are concerned, this section states the law as followed in Texas. Decker & Sons v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942). We are further of the opinion that as a logical proposition, the rule stated in Decker should be held applicable to defective products which cause physical harm to persons. As pointed out by the concurring justice in the Court of Civil Appeals, no sound distinction can be drawn between the use of an eye-wash solution that impairs or destroys vision and a foodstuff which causes illness. (408 S.W.2d 124, 1. c. 128) ,

In Comment (a) under Section 402A of the Torts Restatement, it is said:

“This Section states a special rule applicable to sellers of products. The rule is one of strict liability, making the seller subject to liability to the user or consumer even though he has exercised all possible care in the preparation and sale of the product. * *. * The rule stated here is not exclusive, and does not preclude liability based upon the alternative ground of negligence of the seller, where such negligence can be proved.”
In Decker, this court said:
“While a right of action in such a case is said to spring from a ‘warranty/ it should be noted that the warranty here referred to is not the more modern contractual warranty, but is an obligation imposed by law to protect public health. According to Prof. Williston the law of warranty is older by a century than the action of special assumpsit, from which the modern law of contracts developed. 1 Williston on Sales, p. 368, § 195; Jean-blanc, ‘Manufacturer’s Liability to Persons Other Than Their Immediate Vendees/ 24 Va.L.Rev. 134, 158, at p. 148. The action on a warranty sounded in tort was in the nature of an action on the case for deceit, although it was not necessary to plead or prove scienter. 1 Willis-ton on Sales, p. 371.”

There is an extensive literature concerning the history and nature of the so-called rule of strict liability. Concededly, the doctrine is one of comparatively recent and rapid development. We need not here reiterate its history. Cited in the margin are those authorities and treatises deemed most important and persuasive in bringing the doctrine to its present status.

We are further in agreeemnt with the Torts Restatement rule relating to contributory negligence as a defense to an action based upon strict liability, viz:

“Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. * * * § 402A, Comment (n), Contributory Negligence.

The rules above stated control the disposition of this case. The product involved is a permanent wave preparation known as “Zotos Lanolin Bath”. L. A. Mc-Kisson brought suit against Sales Affiliates, Inc., the distributor of the Zotos preparation, for damages sustained by his wife, Ellen McKisson, as a result of her using the lotion. Mrs. McKisson owned a beauty shop in Amarillo, Texas and on April 13, 1965, one of her employees gave her a permanent wave treatment using the Zotos lotion.' Shortly after said permanent treatment was completed, substantial amounts of Mrs. McKisson’s hair fell out and burns of the face and scalp became apparent. The cause was tried to a jury which found that:

The Zotos preparation was not reasonably fit for the purpose of giving permanent waves; Ellen McKisson was damaged as a result of using such product for a permanent wave; the use of the product was the proximate cause of the damages sustained by Ellen McKisson; Sales Affiliates, Inc. failed to provide adequate directions for the use of Zotos preparation; such failure was negligence; such negligence was the proximate cause of Mrs. Kisson’s injuries; Zotos preparation should not be applied to bleached hair; a reasonably prudent beauty operator in the exercise of ordinary care would have known that the wave lotion should not be applied to bleached hair; the application of the Zotos preparation to Ellen McKisson’s hair was negligent; such negligence was a proximate cause of the damages sustained by Mrs. Kisson; and $1,000.00 would fairly and reasonably compensate the plaintiff, L. A. McKisson for the injuries sustained by his wife in using the Zotos preparation. The trial court rendered judgment for the plaintiff upon the jury’s findings. The Court of Civil Appeals reversed and rendered judgment that plaintiff take nothing. 408 S.W.2d 124.

The Court of Civil Appeals declined to apply the doctrine of Decker & Sons v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942), to the present case because foodstuffs were not involved and there was no privity between the parties. Said Court further held that any cause of action based upon negligence in failing to provide adequate instructions for the use of the product was defeated by the findings of contributory negligence.

Quite often, the extension of common law doctrines is left to the court of last resort by intermediate courts and the action of the Court of Civil Appeals in the present case is in accordance with similar actions taken by other appellate courts.

Only three witnesses testified at the trial, Mrs. Ellen McKisson, her husband, the plaintiff, L. A. McKisson, and Theodore P. Pritsker, a chemical engineer, called as a witness by the plaintiff. The defendant called no witnesses.

Mrs. McKisson testified that she was 52 years of age and the owner of a beauty shop and gift shop; that she was not, however, a licensed beauty operator; that on February 3, 1965, her hair had been bleached by using a lightener and peroxide; that in February 1965, a salesman gave her a sample of Zotos Lanolin Bath; that this preparation remained in the same condition from February until she attempted to use it on April 13, 1965; that on the last date mentioned, she requested one of her employees to give her a permanent using the Zotos preparation consisting of a hair conditioner and a neutralizer; that the lotion container carried a label which said, “Zotos Lanolin Bath, lanolized waving lotion, formula No. 1, for normal or resistant hair, follow accompanying directions. Zotos, Division of Sales Affiliates, Inc., Distributor”; that no directions accompanied the sample; that her hair was normal, that is, her hair was good and strong, had not been misused or abused, was of good texture and “in very good condition”; that she considered that her hair was “normal”; that she would not classify her hair as resistant but considered that she had normal hair on April 13, 1965, although it had been bleached in February; that although she was not a licensed operator, she knew that ordinarily a different formula was used for bleached hair than for unbleached hair and that most preparations which were not suitable for bleached hair contained as part of the label a clear statement, “Do not use on bleached hair”, or some similar statement.

She further testified that the operator first made a test curl which was apparently satisfactory; that her hair was then rinsed and put up on rollers and then treated with the permanent wave lotion; that after the lotion had been applied, the curl was tested until it reached the “right stage of curl’’, and then the neutralizer was applied; that when this was done, “about the time we got down to almost to the base of my neck back here, well, the top part all started falling off, hair, rollers, and everything”; that her employee immediately starting pouring water on her hair to wash out the lotion, but although the hair on the side of the head did not fall out, all the hair on the top, the crown of her head, was gone; that by morning, her eyes were swollen shut and it took 30 to 40 minutes with hot applications to get her eyes open; that she suffered severely from the burns and swelling on her face and scalp for about four days and some of the pain persisted for ten days.

Mr. McKisson corroborated his wife’s testimony as to her personal injuries, burns, swellings, etc.

Mr. Pritsker, the chemical engineer, testified that he was the director of the Dallas Laboratories at Dallas, Texas; that at the request of the plaintiff he examined the remaining portions of the Zotos preparation used by Mrs. McKisson which consisted of a lanolized waving lotion and a neutralizer; that he found the waving lotion contained 2.4% thioglycolic acid, 67% water and 30.6% emulsifying agents, oily clouding agents, lanolin, etc.; that the pH (a chemical term indicating the acidity or basicity of a solution) was found to be 8.9; that the neutralizer was 2.3% hydrogen peroxide, 67% water and 30.7% oily agents and emulsifiers; that thioglycolic acid, if in sufficient concentration, will act as a depilatory, i. e., a chemical agent or material that removes hair by breaking the fibers of the hair close to the roots, and that there was a reasonable probability that the waving solution had separated into two phases, thus creating in effect two solutions, one of which had a higher strength of thiogly-colic acid than the other (the label contained no direction to shake before using); that this higher strength in thioglycolic acid could easily have acted as a depilatory instead of a waving lotion, and that there was “a high degree of probability that the concentrated portion of the waving lotion would cause a woman’s hair to fall out or be lost”.

In our opinion, the plaintiff made out a case of strict liability in tort. For advertising purposes, the product was delivered to plaintiff’s wife in sealed or closed containers with the expectation that it would be used by her either upon her own hair or that of one of the patrons of the beauty shop. One who delivers an advertising sample to another with the expectation of profiting therefrom through future sales is in the same position as one who sells the product. The jury found that the Zotos preparation was not reasonably fit' for the use of giving permanent waves and that Mrs. McKisson’s attempted use of the product was the proximate cause of her injuries. The evidence above discussed supports this finding. When it is shown that the product involved comes in a sealed container, it is inferable that the product reached the consumer without substantial change in the condition in which it was sold. See, e. g., Kroger Co. v. Bowman, Ky., 411 S.W.2d 339 (1967); Shoshone Bottling Co. v. Dolinski, Nev., 420 P.2d 855 (1966). It appears that nothing was done with the curling preparation which would change its properties or characteristics after it was delivered to Mrs. McKisson.

The jury also found that the defendant failed to provide adequate directions for the use of the preparation. While this issue may form the basis of liability founded upon negligence, it also has a bearing upon whether or not Mrs. McKisson made a proper use of the lotion. If the chemicals in the lotion became separated so that one portion of the contents of the container contained more thioglycolic acid than it should and in effect became a depilatory, as suggested by the testimony of the chemical engineer, the label gave no warning of the possibility or probability of such occurrence, nor did the label state that the preparation should be shaken before using or that it was unfit for bleached hair. The only warning set forth-on the label, if such it may be called, was the statement that the formula was for normal or resistant hair. No other instructions accompanied the product.

The plaintiff’s petition set forth two bases for recovery, namely, negligence and strict liability. Although Mrs. McKisson was not a beauty operator, we will assume that because of her ownership of the business and close connection with its operations, she would be charged with a standard of care measured by the conduct of a reasonably prudent beauty operator. Based upon such assumption, we may conclude that the jury’s finding upon the contributory negligence issue would bar a recovery based upon negligence. It does not, however, bar a recovery based upon strict liability which is not based upon negligence. Torts Restatement, § 402A, Comment (n). The contributory negligence issue submitted here inquired as to whether or not Mrs. McKisson’s conduct was sub-standard when measured by the test of a “reasonably prudent beauty operator”.

The defendant contends that the Zotos Formula No. 1 carried a label which stated that it was for normal or resistant hair; that Mrs McKisson’s hair was not normal hair in that it had been bleached, and she was negligent in attempting to use the preparation. We may accept the contentions and assumptions advanced by defendant but the burden of the argument remains that Mrs. McKisson was at fault in not discovering that the product was unsuitable for bleached hair. This species of contributory negligence is not a defense to strict liability. We have discussed this matter in some detail in Shamrock Fuel & Oil Sales Co. v. Tunks, District Judge, Tex., 416 S.W.2d 779, this day decided, and need not repeat the arguments and authorities therein set forth.

The judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed.

GRIFFIN, J., dissenting.

DISSENTING OPINION

GRIFFIN, Justice.

I dissent from the holding that contributory negligence is not a defense to this action for the reasons I have set out fully in my dissent filed to the majority opinion in Shamrock Fuel & Oil Sales Co. v. Tunks et al., Tex., 416 S.W.2d 779.

      . Other cases contain similar expressions, such as, “[W]e see no rational doctrinal difference to justify any distinction between an upset stomach caused by a fly in a coke and a broken leg caused by a weak axle of a wheel chair”. Putman v. Erie City Manufacturing Company, 338 F.2d 911 (5th Cir. 1964). See also, Hen-ningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960).

      . Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633, 48 L.R.A.,N.S., 213 (1913), discussed in 19 Sw.L.J. 5, 11; Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960); Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963); Putman v. Erie City Mfg. Co., 338 F.2d 911 (5th Cir. 1964) [This opinion contains an elaborate citation and review of Texas and American authorities, noted in 19 Sw.L.J. 198 (1965)]; B. F. Goodrich Co. v. Hammond, 269 F.2d 501 (10th Cir. 1959); Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168 (1964); Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436 (1944); Picker X-ray Corp. v. General Motors Corp., 185 A.2d 919 (D.C.Municipal Ct.App.1962), noted in 5 Ariz.L.Rev. 306 (1964); Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965); Kroger Co. v. Bowman, Ky., 411 S.W. 2d 339 (1967); State Stove Mfg. Co. v. Hodges, Miss., 189 So.2d 113 (1966); Shoshone Coca-Cola Bottling Co. v. Dolinski, Nev., 420 P.2d 855 (1966); Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E. 2d 81 (1963); 2 Frumer & Friedman, Products Liability, § 16 (1966); Prosser, Torts, § 97 (3d Ed. 1964); Freedman, Defect in the Product: the Necessary Basis for Product Liability in Tort and in Warranty, 33 Tenn.L.Rev. 323 (1966); James, General Products — Should Manufacturers Be Liable Without Negligence? 24 Tenn.L.Rev. 923 (1957); James, Products Liability, 34 Texas LJRev. 192 (1955); Keeton, Products Liability— Some Observations About Allocation of the Risk, 64 Mich.L.Rev. 1329 (1966); Keeton, Products Liability — Liability Without Fault and the Requirement of a Defect, 41 Texas L.Rev. 855 (1963) ; Keeton Products Liability — Current Developments, 40 Texas L.Rev. 193 (1961) ; Lascher, Strict Liability in Tort for Defective Products, 38 So.Calif.L.Rev. 30 (1965); Noel, Manufacturers of Products — The Drift Toward Strict Liability, 24 Tenn.LJEtev. 963 (1957); Percy, Products Liability — Tort or Contract or What, 40 Tul.L.Rev. 715 (1966); Prosser, The Attack Upon the Citadel, 69 Yale L.J. 1099 (I960); Prosser, The Fall of the Citadel, 50 Minn.L.Rev. 791 (1966); Traynor, The Ways and Meanings of Defective Products and Strict Liability, 32 Tenn.L.Rev. 363, 367 (1965); Wade, Strict Tort Liability of Manufacturers, 19 Sw.L.J. 5 (1965) ; Comment, 64 Mich.L.Rev. 1350 (1966) ; Comment, 27 Mo.L.Rev. 194 (1962); Comment, 33 Tenn.L.Rev. 341 (1966); Comment, 52 Va.L.Rev. 509 (1966).

      . Strict liability in tort lies against a distributor as well as a manufacturer. See, e.g., Canifax v. Hercules Powder Co., 237 Cal.App.2d 44, 46 Cal.Rptr. 552 (1965); Tice v. Wilmington Chem. Corp., Iowa, 141 N.W.2d 616, 626 (1966); Graham v. Bottenfield’s, Inc., 176 Kan. 68, 269 P. 2d 413 (1954); Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966); Restatement (Second) of Torts, § 402A, Comment (f) (1965); Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1141 (1980). Compare, Bowman Biscuit Co. of Tex. v. Hines, 151 Tex. 370, 251 S.W.2d 153 (1952).

      . For example, See note, Page Keeton, Products Liability — Current Developments, 40 Texas L.Rev. 193, l.c. 207, and reference to Brown v. Howard, 285 S.W. 2d 752 (Tex.Civ.App.1955, wr. ref’d n.r. e.), a case involving injury to cattle (property) rather than injury to the person, in which the Court of Civil Appeals refused to apply the rule of Decker to a chemical spray for cattle because among other reasons, the Supreme Court of Texas had not at that time extended the strict liability doctrine beyond food for human consumption.

      . Special Issue No. 3 contained four parts or questions designated by letters. By its answer to question (a), the jury found that the lotion in question should not have been applied to bleached hair. Questions (b) and (c) answered by the jury in the affirmative, were as follows:
      “(b) Do you find from a preponderance of the evidence, if any, that a reasonably prudent beauty operator in the exercise of ordinary care would have known that the wave lotion in question should not be applied to bleached hair, if you have so found?”
      “(c) Do you find from a preponderance of the evidence, if any, that the application of the lotion in question to the hair of Ellen McKisson on the occasion in question was negligence?” Negligence was defined as meaning the failure to use ordinary care.
      Question (d) was a proximate cause issue to be answered if the negligence issue was answered in the affirmative.

      . The presence of burns upon the scalp and face of Mrs. McKisson is not explained upon a theory compatible with the premise that Formula No. 1 was safe for use on normal hair. As mentioned, the defendant called no witness.


author: STEAKLEY, Justice.

text:
    SOUTHERN LIFE AND HEALTH INS. CO., Petitioner, v. Merla Mae Chevis SIMON et al., Respondents.
    No. B-207.
    Supreme Court of Texas.
    June 28, 1967.

      Barnes & Barnes, Robert E. Barnes, Beaumont, for petitioner.
    George W. Brown, Jr., Beaumont, for respondents.
   STEAKLEY, Justice.

This suit is an action to recover the death benefits of $2,000.00 under an insurance policy issued by Petitioner, Southern Life and Health Insurance Company. In a trial to the court Respondents were granted judgment for the face amount of the death benefits, together with interest, statutory damages and attorney’s fees. The Court of Civil Appeals affirmed. 411 S.W.2d 765. We reverse the judgments below and render judgment for Petitioner.

The named insured was Austin Chevis, a longshoreman. The named beneficiary was his' wife, Merla Mae Chevis, who has since remarried and is joined by her present husband. Chevis was killed while loading cargo in the performance of his duties as a longshoreman aboard the “SS Lena Lucken-bach.” He was crushed to death by a forklift truck he was using in the loading operations which crashed through a hatch covering on the shelter deck. The steamship was moored to the docks at the time. She was certified and equipped to carry passengers but had been operated as a freighter since 1961.

The insurance policy forming the basis for the suit carried the following identification on its face in bold type:

“LIMITED ACCIDENT INDUSTRIAL POLICY
This Policy provides benefits for the loss of life, limb or sight by accidental means to travelers or pedestrians limited to conditions herein stated.”

The policy was issued for a consideration of 10 cents a week and insured Chevis “against the result of bodily injuries '* * * effected solely by external, violent and accidental means * * Paragraph 1 of the policy defined the coverage to an insured while a pedestrian. Paragraph 2 defined the coverage to an insured while a traveler. The crucial prerequisites to coverage here are found in paragraph 2 and are indicated by our italics:

“2. Or if the Insured shall by collision of or any accident to any railroad car, passenger steamship, public omnibus, street railway car, public taxicab, public automobile, public stage or public bus which is being driven or operated at the time by one regularly employed for that purpose, and inside of which the Insured is legally traveling; or by collision of or by any accident to any private horse drawn vehicle or private motor driven automobile, inside of which the Insured is riding or driving, or any motor driven truck, inside of which the Insured is riding or driving, or if a street car motorman or street can conductor in addition to being covered as an individual by all the above provisions of the Policy he shall also be covered, while actually operating a street car in the line of his employment when injured by collision of or accident to the street car which he is operating; or by any accident to any passenger elevator, inside of which the Insured is riding as a passenger; provided that in all cases referred to in this paragraph there shall be some external or visible injury on the said vehicle or elevator of the collision, or accident, provided that an injury to the tire on such vehicle shall not be considered an injury to the vehicle, and provided that this Policy does not cover Insured while riding in or on a motorcycle or in or on any side car or other attachment to a motorcycle — and provided that except as to railroad passenger cars, passenger steamships, street cars and elevators the collision or accident must occur on a public highway as heretofore defined.”

The Court of Civil Appeals held that the accident to Chevis occurred under circumstances meeting the conditions of the insurance contract. The Court relied principally upon the decision of this Court in Continental Cas. Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762 (1953) where it was held that an airplane pilot was a passenger within the provisions of the insurance contract there under review. The decision was premised on the fact of ambiguity and uncertainty as to the meaning of the contract and it was reasoned in the majority opinion that coverage of the pilot would not be excluded where the intent of the policy did not make such a construction unreasonable. The determining rule was.that provisions of insurance contracts will be construed against the insurer, the author of the contract, where the language is ambiguous and uncertain. We have, on the other hand, repeatedly recognized the rule that in the absence of ambiguity insurance contracts are to be construed generally as other contracts. In applying this rule the terms of the contract are given their ordinary meaning unless there are other provisions indicating a contrary intention of the parties. Guardian Life Ins. Co. of America v. Scott, 405 S.W. 2d 64 (Tex. 1966) ; Employers Mutual Cas. Co. of Des Moines, Iowa v. Nelson, 361 S.W.2d 704 (Tex.1962) ; General American Indemnity Co. v. Pepper, 161 Tex. 263, 339 S.W.2d 660 (1960) ; Western Reserve Life Ins. Co. v. Meadows, 152 Tex. 559, 261 S.W. 2d 554 (1953).

We find no ambiguity in the insurance contract now before us. The conditions to coverage are clear. The policy explicitly states the condition, among others we do not reach, that for recovery under the facts here, Chevis, the insured, must have been legally traveling inside the steamship. It is stated in bold type on its face that the policy benefits are provided to travelers or pedestrians. As before noted, paragraph 1 applies to one in the status of the latter. Paragraph 2 applying to travelers, quoted above, enumerates various modes of transportation in which people travel on a journey: railroad passenger car, passenger steamship, public omnibus, street railway car, public taxicab, public automobile, public stage, public bus, private horse drawn vehicle, private motor driven vehicle, motor driven truck, street car and passenger elevator. The collision or accident must occur on a public highway where the collision or accident involves over-the-road transport vehicles; but this is expressly not required, for obvious reasons, when the transportation is by means of railroad passenger cars, passenger steamships, street cars and elevators. The transportation characteristic of traveling “inside” a transporting vehicle is included in each clause of paragraph 2 except the clause applying to a street car motorman or conductor where the requirement is one of actual operation of the street car. There is no provision in the insurance contract which carries the suggestion that its coverage includes accidents occurring when the insured is not a traveler in accepted and ordinary usage. A person engaged in the loading of a moored steamship as a longshoreman, and hence moving from point to point in the loading operation, is not, in our opinion, traveling inside the ship under the reasonable intendment of the contractual provisions before us.

The Court of Civil Appeals further concluded, however, as Respondents here also contend, that there is coverage within the policy provisions because Chevis was killed in an accident to the motor driven forklift truck, “inside of which he was riding or driving.” This result was reached on the basis of the final proviso in paragraph 2 of the policy which reads “and provided that except as to railroad passenger cars, passenger steamships, street cars and elevators the collision or accident must occur on a public highway as heretofore defined.” It was reasoned from this proviso that the truck accident qualified since steamships are excepted from the requirement that the accident occur on a public highway.

In our view, the Court of Civil Appeals has given the proviso a construction beyond its purpose and terms. The proviso stated the condition that an accident or collision involving a land transportation vehicle must occur on a public highway. The exceptions of passenger steamships, railroad passenger cars, street cars, and elevators were quite clearly intended to remove these users of water, rail, track or cable from the public highway requirement. It is the type of transportation facility and not the location of the accident which is controlling under the exceptions. Moreover, the juxtaposition of the preceding clause “or any motor driven truck, inside of which the insured is riding or driving” to its immediately preceding clause “or by collision of or by any accident to any private horse drawn vehicle or private motor driven automobile, inside of which the insured is riding or driving” further evidences the clear purpose of limiting coverage to accidents occurring to the enumerated road user vehicles — horse drawn, automobile and motor driven truck — under usual and normal transportation circumstances over public highways. Paragraph 2 is not subject to the construction of providing coverage in the one fact that Chevis was operating a motor driven truck from point to point aboard the moored ship during cargo loading operations.

The judgments below are reversed and judgment is rendered that Respondents take nothing by their suit.


author: PER CURIAM.

text:
    CONTINENTAL AMERICAN LIFE INSURANCE COMPANY, Petitioner, v. Jessie McCAIN, Respondent.
    No. B-226.
    Supreme Court of Texas.
    June 28, 1967.
    Rehearing Denied July 26, 1967.

      Fulbright, Crooker, Freeman, Bates & Jaworski, William H. Payne, Houston, for petitioner.
    Barber, Seale & Stover, John H. Seale, Jasper, for respondent.
   PER CURIAM.

Respondent McCain recovered a judgment against petitioner Continental American Life Insurance Company for disability benefits under a group life insurance policy. The judgment was for a principal sum of $2,400, representing twenty-four monthly payments of $100 each, plus the statutory penalty on that sum and $800 attorney’s fees, for a total of $3,488 and with 6 per cent interest on that sum until the judgment was paid.

The injury which caused disability occurred on February 24, 1965, trial of the case was concluded on March 8, 1966, and judgment was entered on March 31, 1966. It is thus obvious that all of the monthly installments had not accrued when the judgment was entered. Continental protested inclusion in the judgment of the unaccrued installments, and asserted error in the court of civil appeals and this court because of the inclusion. The court of civil appeals upheld the action of the trial court in including the unaccrued installments in the judgment on the ground that there had been an anticipatory breach of the contract by Continental. See 412 S.W.2d 666, 672.

The holding of the court of civil appeals on the issue stated is in conflict with this court’s decision in Sanders v. Aetna Life Ins. Co., 146 Tex. 169, 205 S.W. 2d 43, 173 A.L.R. 968 (1947). Cf. Universal Life & Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405 (1937), and Continental Casualty Co. v. Boerger, 389 S.W. 2d 566 (Tex.Civ.App. — Waco 1965, writ dism’d).

No other error appears in the record which requires that the judgments of the courts below be reversed and judgment be here rendered that plaintiff take nothing or that the cause be remanded for a new trial. Accordingly, because of the conflict pointed out, we exercise our authority under Rule 483, Texas Rules of Civil Procedure, and reverse the judgments of the courts below without granting writ of error, and we remand the cause to the trial court with directions to render judgment now as though no anticipatory breach of the contract had occurred.