author: BISSETT, Justice.

text:
    INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. ASARCO, INC., Appellee.
    No. 1246.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 16, 1978.
    Rehearing Denied March 16, 1978.

      F. Van Huseman, Maddin, White & Brin, Inc., Corpus Christi, for appellant.
    Robert J. Patterson, Keys, Russell, Seaman & Mansaker, Corpus Christi, for appel-lee.
   OPINION

BISSETT, Justice.

This is a suit for declaratory judgment. Suit was brought by ASARCO, INC., (AS-ARCO) against Insurance Company of North America (INA) to ascertain the respective parties’ rights under a general liability insurance policy and to determine whether or not INA had a duty to defend ASARCO in another action. Following a jury trial, judgment was rendered which decreed that INA is contractually obligated to provide a defense for ASARCO in the said action. INA has appealed. We affirm.

INA issued a policy of insurance to AS-ARCO which covered the period January 1, 1973 to January 1, 1974. Under the policy the insurer had a duty (among others) to defend the insured against any suit for damages on account of bodily injury or property damage. The policy was in force and effect at all times material to this suit. The policy, under the section entitled CONDITIONS, contained the following provision:

“(4) Insured’s Duties in the Event of Occurrence, Claim or Injury
(a) ‘In the event of an occurrence, written notice containing particulars sufficient to identify the Insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the Insured to the Company or any of its authorized agents as soon as practicable . .”

On or about October 17 or 18,1973, there was an alleged incident at ASARCO’s plant in Corpus Christi, Texas, wherein one William L. Priebe claimed to have been exposed to chemical fumes that caused injuries which allegedly resulted in total and permanent disability to him. The alleged incident was made the basis of a law suit filed by William L. Priebe against ASARCO on October 11, 1974, wherein Priebe sought to recover damages for his alleged injuries as a result of ASARCO’s alleged negligence. INA was promptly notified of the filing of the suit which was the first notice which it had received of the occurrence upon which the Priebe suit was founded. On or about November 7, 1974, INA, through its retained attorney, Mr. Guy D. Allison, undertook the defense of the Priebe suit by filing an answer therein.

On January 30, 1975, INA informed AS-ARCO that it would no longer defend AS-ARCO in said suit for the reason “that the claim was not reported for more than a year after the date of the event”. Whereupon, ASARCO filed suit against INA to compel the latter to defend the Priebe suit.

ASARCO pled: 1) reasonable notice of the occurrence of the event which led to the filing of the Priebe suit was given; 2) INA’s conduct constituted a waiver of the notice provision of the policy. INA filed a general denial and further pled the failure of ASARCO to notify it of the occurrence of the October 18, 1973 event within a reasonable time thereafter excused its defense of the Priebe suit.

The jury found: 1) ASARCO gave notice to INA of the alleged occurrence of October 18, 1973 event “as soon as practicable”; 2) INA did not waive the notice provision in the policy; 3) INA led ASARCO to believe that it (INA) “would not insist upon compliance with the notice provisions of the insurance policy in question”; 4) ASARCO relied on INA’s conduct to the extent that it believed that INA would defend the Priebe suit “without insisting on compliance with the notice provisions of the insurance policy in question.”

INA, in point 1, contends that there is “no evidence” to support the jury finding that ASARCO gave INA notice of the “Priebe incident as soon as practicable”. In point 3, it is asserted that the trial court erred in granting judgment in favor of AS-ARCO “since ASARCO failed, as a matter of law, to give INA notice of the Priebe incident as soon as practicable.” INA claims in point 2 that the evidence is factually insufficient to support the jury finding of timely notice of the “Priebe incident”.

On November 5, 1973, Dr. Roger S. Johnson, ASARCO’s plant physician, wrote a letter to Roy Hudson, Personnel Director and Safety Director for ASARCO. The pertinent parts are set out in the footnote. Mr. Hudson, upon receipt of the letter, notified Mr. C. B. White, ASARCO Plant Manager of the Corpus Christi plant, of the contents thereof. The letter was then placed in a folder labeled “William Priebe”, which was put in the general information file. INA did not learn of the existence of the letter until after it had already filed an answer on behalf of ASARCO in the Priebe suit.

On November 12, 1974, INA sent Mr. Allison a letter indicating that the investigation of the Priebe suit had been assigned to Lindsay and Newsom, Corpus Christi, Texas. In that letter, INA indicated that in addition to investigating the Priebe suit, Lindsay and Newsom were also instructed to investigate coverage questions under the policy, particularly late reporting. On November 18, 1974, Mr. O. B. Roquemore, an investigator for Lindsay and Newsom, visited ASARCO’s plant at Corpus Christi, Texas. He contacted Hudson and asked to see the information which ASARCO had “in the file on William Priebe.” Whereupon, Hudson showed him the file which contained the letter from Dr. Johnson and nothing more. It is undisputed that Roquemore did not ask Hudson why a copy of the letter was not sent to INA. Roquemore then toured AS-ARCO’s plant and took several photographs of the plant area. He was given a copy of Dr. Johnson’s letter.

A “reservation of rights” letter was issued to ASARCO on January 17, 1975. It was signed by Roquemore. ASARCO was therein notified of the possibility of a breach of policy conditions, namely, “Delayed Reporting”, and was advised that INA “reserves the right” at any time to withdraw from the defense of the Priebe suit and to disclaim liability under the policy. The letter was ASARCO’s first notice that INA was checking into the matter of late reporting. On January 30, 1975, INA informed ASARCO that it would no longer defend against the action brought by Priebe.

Roquemore knew that he was “supposed to investigate late reporting” when he went out to ASARCO’s plant on November 18, 1974. However, he further testified that he did not disclose to Hudson that he had been asked by INA to investigate late reporting in connection with his investigation of the facts surrounding the alleged occurrence; nor did he inform Hudson that there might be “a coverage conflict with regard to late reporting”.

Hudson, ASARCO’s Personnel and Safety Director, as aforesaid, first became aware of the fact that Priebe was making a claim against ASARCO on November 18, 1974, when Roquemore told him of the claim. He said:

“I received a phone call from Mr. Roque-more telling me that he was representing INA and ASARCO and that on the Priebe case, and he wished to come out and talk to me about it.”

Hudson testified both in person and by deposition. With respect to the testimony elicited from the witness chair, he, in summary, told the jury: 1) Roquemore did not tell him that he was at the plant to investigate the late reporting of the alleged Priebe occurrence; 2) he did not have any reason to suspect that Roquemore “was working against ASARCO”; 3) he willingly produced the Priebe file for Roquemore’s inspection and, at Roquemore’s request, furnished him with a copy of Dr. Johnson’s letter. The following portions of Hudson’s deposition were read to the jury:

“Q Mr. Hudson, you answered some questions with regard to what you showed Mr. Roquemore, did you not?
A Yes.
Q Do you recall that you were asked what you showed Mr. Roquemore and whether you had anything to hide from Mr. Roquemore regardless of the conditions, is that correct?
A Yes.
Q Did you base all your answers to those questions on the assumption that Mr. Roquemore was representing ASARCO’s interest in examining your files?
A Yes.
Q Would you have given any different answers if you had known Mr. Ro-quemore would have been representing another party?
A Yes, sir.
Q You would have made your file fully available to any other party?
A No.
* * * * * *
“Q Did Mr. Roquemore at any time say he was representing ASARCO in this matter?
A I don’t recall.”

It is undisputed that on October 17, or 18, 1973, Priebe was working on a furnace in ASARCO’s Corpus Christi plant. It is further undisputed that on that day Priebe was not an employee of ASARCO but was employed by a third party and was under the supervision of the third party. Although several of ASARCO’s employees were working in the same area where Priebe was working, none of ASARCO’s employees reported to ASARCO’s management any accidents, incidents or unusual occurrences on that day. In particular, Mr. James W. Murphy, an employee of ASAR-CO and the supervisor of the area in which Priebe was working, who was called by INA as its own witness and not as a witness under the “Adverse Witness Rule”, testified that he was personally familiar with the area of the plant in which Priebe alleged he was injured and that as far as he knew, no accident, such as that alleged by Priebe, occurred in that area on October 17 or 18, 1973. He specifically testified:

“Q Would you be in a position to know whether any such accident occurred in the section where you were supervising?
A Yes, I would have known.
⅜ * * * * *
“Q Based on your experience at ASAR-CO and based on your engineering background, are you of the opinion that this sort of incident which Mr. Priebe alleges could have resulted from a routine, ordinary course of business sort of situation?
A No way.”

Murphy’s testimony was not contradicted. Hudson also testified that none of the AS-ARCO employees who were working in the area where Priebe claims he sustained injury reported any accidents or occurrences on the day in question.

The phrase “as soon as practicable”, as used in the notice provision of general liability policies requiring the insured to give the insurer notice of an accident or occurrence as soon as practicable, means notice within a reasonable time, and what is a reasonable time depends upon the facts and circumstances in each particular case. Employers Casualty Company v. Scott Electric Company, 513 S.W.2d 642 (Tex.Civ.App.—Corpus Christi 1974, no writ).

The language used in the “notice” provision of the policy presupposes that an accident or occurrence takes place and that the insured is required to notify the insurer “as soon as practicable” of the occurrence. It is conclusively established by the evidence that Priebe was the employee of a third party and was not under the control or supervision of ASARCO on the day of the alleged occurrence. It is further conclusively established that no such occurrence was reported by Priebe or by any of ASARCO’s employees to either Hudson, Murphy or anyone else in ASARCO’s employ. The jury could reasonably infer that although ASARCO’s employees were working in the area where Priebe was working, none of them were aware of any such occurrence as that claimed by Priebe, and that Dr. Brown, Priebe’s doctor, had some doubt as to whether such an occurrence actually took place. The only inkling of such an occurrence stems from what Dr. Brown told Dr. Johnson what Priebe told him. None of the “several workers” who were working alongside of Priebe reported the escape of “green gas” that produced any effect on them due to inhalation of the gas. The use of the word “occurrence” in the notice provision of the policy must relate only to the happening of an event of some importance which, in all probability, could and probably would, cause injury. The provision cannot be held to encompass mere possibilities. The letter illustrates the lack of credibility with which Dr. Brown viewed Priebe’s claim. We do not believe the statements made by a person who exhibited “evidence of hysteria” to his examining doctor of such magnitude that caused the doctor to conclude that he was “an hysterical malingering type of individual”, even though such statements were promptly reported by the examining doctor to the insured, are sufficient to put the insured on notice of the occurrence of an event which, without more, should have been reported to the insurer. The jury, as the trier of facts, found that ASARCO’s actions, under all the circumstances present, were in compliance with the notice provision of the policy. We hold that this was evidence of probative force to sustain the jury finding that AS-ARCO gave INA notice of the “Priebe incident as soon as practicable.” The evidence is factually sufficient to support the finding. ASARCO did not fail, as a matter of law to give INA notice of the occurrence “as soon as practicable”. INA’s points 1, 2 and 3 are overruled.

After completing his investigation, Ro-quemore prepared a report and forwarded copies thereof to Allison and INA. Allison acknowledged receipt of the report by letter dated November 26, 1974, the pertinent part of which read:

“I don’t see any harm that has resulted from the delay in reporting but the ‘reservation of rights’ would be up to the insurance carrier and I notice a copy of your letter to me went to the San Antonio office. It would be my recommendation that we accept the defense of the matter without reservation, for public relations effect if nothing else, but that is up to the carrier.
The letter from Dr. Johnson is very interesting. Roger makes a good witness and apparently we have another good witness built-in in the man’s treating physician.”

The letter was introduced in evidence over INA’s objection. The action by the trial court is challenged in point 4 on the grounds 1) that the letter did not constitute an admission by an agent; 2) that what Allison thought about the matter did not tend to prove or disprove any issue which the jury was to decide; and 3) the letter did not show a change in INA’s position.

The letter illustrates that both Allison and Roquemore were aware of the investigation concerning a possible coverage conflict. Apparently, there had been some discussion between them concerning the advisability of sending a “reservation of rights” letter to ASARCO. As already noted, the “reservation of rights” letter was so issued on January 17,1974. The Allison letter was admissable to show the knowledge of a possible coverage conflict at an early date in INA’s investigation of “delayed reporting”.

Even assuming that the Allison letter should not have been admitted into evidence, no harm resulted. The jury, in its answer to Special Issue No. 1, found that ASARCO gave notice to INA of the alleged occurrence “as soon as practicable”. Special Issue No. 2, which inquired if INA was prejudiced by the failure of ASARCO to give notice of the alleged occurrence “as soon as practicable”, was to be answered only if the jury answered “it did not” to the question submitted in Special Issue No. 1. Since the jury answered “it did” to Special Issue No. 1, it did not reach Special Issue No. 2. The erroneous admission of evidence will not require a reversal unless the record as a whole affords a substantial basis for the reasonable belief that such evidence may well have caused the rendition of an improper judgment. Rule 434, T.R.C.P; Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298 (1956). We hold that the admission of the Allison letter into evidence, if error, did not probably cause the rendition of an improper judgment. Point 4 is overruled.

INA, in its point 5 (its final point) concludes that the “trial court erred in failing to submit an issue inquiring as to whether or not ASARCO’s reliance on representations of INA induced it to change its position for the worse.” In view of our overruling INA’s points 1, 2, 3 and 4, it is not necessary that we consider point 5. And, for the same reason, we do not reach AS-ARCO’s cross points.

The judgment of the trial court is AFFIRMED.

      . “I am writing this letter to you today to keep you informed of a problem which I believe might represent a medical-legal problem. .
      I received a telephone call from Dr. Eugene Brown of Corpus Christi on Friday, November 2, 1973 informing me that he was caring for a patient by the name of William Priebe, an employee of South Texas Masonry. According to information given to Dr. Brown by Mr. Priebe, this gentleman was working for the above mentioned establishment on October 17, 1973 on the plant premises of the local Corpus Christi American Smelting and Refining Company plant.
      He related to Dr. Brown that he was working adjacent to an oven which was burning off some zinc products. Apparently he was doing some brick work. Reportedly, some ‘green gas’ escaped and several (I believe about six) of his fellow workers including himself; noticed immediately effects due to the inhalation of this gas. Apparently all of the workers involved recovered without any difficulty except Mr. Priebe.

      “In Dr. Brown’s conversation with me, he described his patient as showing evidence of hysteria and uncooperativeness. The doctor attempted to carry out pulmonary function studies, and I am told these gave a rough indication of what we call chronic obstructive disease although the pulmonary function studies were interpreted to be incomplete because of the patient’s refusal to cooperate fully. Dr. Brown related to me the patient was an extremely heavy smoker, which might account for any possible pathology in the lungs. His chest x-rays, incidently, were interpreted to be normal. * * * * * *
      “ . . . Dr. Brown feels this man most probably is an hysterical malingering type of individual . .”


source: Caselaw Access Project

author: CORNELIUS, Chief Justice.

license: Public Domain

text:
    Terry R. DILBECK and Vernon L. Dilbeck, Appellants, v. IDEAL BREAD COMPANY et al., Appellees.
    No. 8555.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 21, 1978.
    Pat C. Beadle, Beadle & Beadle, Clarks-ville, for appellants.
    Edwin J. Lamberty, Jr., Patterson, Lam-berty & Kelly, Inc., Dallas, for appellees.
   CORNELIUS, Chief Justice.

Appellants sued appellees for damages arising from an automobile-truck collision. Trial was to a jury and upon receipt of answers to certain special issues the trial court entered judgment that appellants take nothing. Appellants contend they are entitled to a new trial because the jury answers were not unanimous, and being less than unanimous, the verdict was required to be signed by each juror in accordance with the provisions of Tex.R.Civ.P. 292.

The record consists of only a partial transcript and a statement of facts containing the evidence produced on the hearing of appellants’ motion for new trial. Neither the charge, the verdict nor the evidence presented at the trial itself is before us. From the briefs and the hearing on the motion for new trial we deduce that the jury answered some, but not all, of the special issues. After the exchange of several notes between the trial judge and the jury, the jury was called into open court, at which time the judge examined the charge. He apparently found that the primary issues of negligence and proximate cause had been answered against appellants, thus precluding any recovery in their behalf. He then inquired of the jurors if those were their answers, and all of the jurors indicated by affirmation or silence that they were. The trial judge then instructed the foreman to sign the verdict, whereupon it was accepted by the court and the jury was discharged. Appellants base their claim of error upon testimony elicited at the hearing on the motion for new trial to the effect that the jurors, after answering several of the issues, had agreed to reconsider those answers, but before doing so were called into open court and had the verdict accepted as final. Evidence at the hearing also revealed that two of the issues were initially answered by a vote of ten to two rather than by unanimous vote. Appellants contend that in such a case Rule 292 required the verdict to be signed by each of the jurors.

Not having a complete record or a copy of the jury’s verdict before us, we can only assume that the answers which were made by the jurors authorized a take nothing judgment. If so, it was not only the court’s right, but its duty, to accept the partial verdict and render judgment thereon. Templeton v. Rogers, 450 S.W.2d 900 (Tex.Civ.App. Beaumont 1970, writ dism’d); Barker v. Weingarten Riverside Co., 232 S.W.2d 692 (Tex.Civ.App. Beaumont 1950, writ ref’d n. r. e.). Although the foreman’s signature was not essential to the verdict’s validity, it was signed by the foreman after all of the jurors indicated to the court that the answers were unanimous. Prior to the time a verdict is accepted by the court and ordered filed, any juror may withdraw his concurrence, 'or irregularities may be discovered which require further deliberations by the jury or action by the court. Heinrich v. Texas Bitulithic Company, 324 S.W.2d 600 (Tex.Civ.App. Texarkana 1959, no writ); Security State Bank and Trust v. Craighead, 440 S.W.2d 701 (Tex.Civ.App. San Antonio 1969, writ ref’d n. r. e.); 3 McDonald’s Texas Civil Practice, Sec. 15.-02.1, p. 594. But after the verdict is returned and represented to the court as being unanimous, and it is accepted by the court and the jury discharged, a showing that some of the jurors held mental reservations about the verdict or wanted to reconsider their answers, or even that the verdict was not unanimous, will not impeach or invalidate the verdict as returned to and accepted by the court. Jones v. Square Deal Cab Company, 501 S.W.2d 746 (Tex.Civ.App. Houston - 14th District 1973), writ ref’d n. r. e. per curiam , 506 S.W.2d 855 (Tex.1974). As said by our Supreme Court in refusing a writ in Jones v. Square Deal Cab Company, 506 S.W.2d 855 (Tex.1974):

“. . . Even if the votes on the issues stood at some point only ten to two, the ultimate verdict was accepted and entered by all of the jurors unanimously. If there was a reservation to the contrary in the mind of some juror, it cannot now be considered. . . . The trial judge asked the jury if the answers were to be taken as their verdict. All jurors assented, at least by their silence, and the judge received the verdict as a unanimous one. A subsequent showing that the verdict was less than unanimous at some point during the deliberations would not impeach the verdict as signed, returned to and received by the court. . . . ”

In addition, appellants did not object or move for a mistrial and did not request a further poll of the jury before the verdict was accepted and the jury discharged. That being true, they waived any right to complain of the partial verdict or any irregularities in the signing or the return thereof. Lewis v. Texas Employers’ Ins. Ass’n, 151 Tex. 95, 246 S.W.2d 599 (Tex.1952); Security State Bank and Trust v. Craig-head, supra.

The judgment of the trial court is affirmed.

      . Templeton v. Rogers, supra; Barker v. Weingarten Riverside Co., supra; Patterson v. Gulf, C. & S. F. Ry. Co., 77 S.W.2d 1075 (Tex.Civ. App. Fort Worth 1934, no writ); Laybourn v. Bray & Shifflet, 214 S.W. 630 (Tex.Civ.App. Amarillo 1919, writ ref’d).


author: CIRE, Justice.

text:
    Roy HAWKINS, Appellant, v. KYSOR INDUSTRIES CORPORATION, Appellee.
    No. 1729.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 22, 1978.
    John 0. Roark, Temple, for appellant.
    Bill M. Payne, Lawrence, Thornton, Payne & Watson, Bryan, for appellee.
   CIRE, Justice.

Roy Hawkins appeals from a summary judgment granted in favor of Kysor Industries Corporation.

Appellant’s original petition alleges that on May 29,1974 he was injured while working as an employee of Redman Building Products, Inc. Hawkins claims his injury was caused by a product manufactured by Stone Machinery Company, which has since been taken over by its parent company, Kysor Industries Corporation. A compensation claim between Hawkins and the insurance carrier, Liberty Mutual Insurance Company, was settled and approved by the Texas Industrial Accident Board on November 4, 1974. Hawkins instituted this third-party claim on November 2, 1976, some two and one-half years after the date of the accident.

Kysor Industries Corporation, in its original answer, asserts that Hawkins’ suit was barred by article 5526 of the Texas Revised Civil Statutes, the two-year statute of limitations. Pursuant to its answer, Kysor presented its motion for summary judgment which was granted by the trial court.

Hawkins appeals, stating that the trial court erred in granting the summary judgment. In his brief he asserts that the amendment to Texas Revised Civil Statutes article 8307 section 6a did not change the applicable statute of limitations as to third-party actions and, therefore, Kysor’s motion for summary judgment should have been overruled.

In Burkhart v. Concho Indus. Supply, Inc., 549 S.W.2d 469 (Tex.Civ.App.—Austin 1977, no writ history), the Third District Court of Civil Appeals dealt with the same question now presented in this case. In that opinion, after reviewing the history of article 8307 section 6a and the decision of the Supreme Court in Campbell v. Sonford Chemical Company, 486 S.W.2d 932 (Tex.Sup.1972), the Court applied the Campbell dicta which suggested that, in the event the Legislature amended article 8307 section 6a to allow the injured workman to file a third-party action without losing his compensation rights, his third-party action should then be governed by the two-year statute of limitations, article 5526. The Court held that since the 1973 amendment of article 8307 section 6a, the statute of limitations in third-party actions starts to run from the date of injury, regardless of any pending Workmen’s Compensation claim.

We agree with the Burkhart decision and, therefore, affirm the decision of the trial court.

Affirmed.


text:
    William Scott BROYLES, Appellant, v. COLEY PROPERTIES, Appellee.
    No. 1770.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 22, 1978.
    Quinnan H. Hodges, Houston, for appellant.
    Larry Funderburk, Funderburk & Fun-derburk, Houston, for appellee.
   CIRE, Justice.

William S. Broyles appeals from a summary judgment granted in favor of Coley Properties.

Plaintiff’s original petition alleges that he was injured on June 25,1974 while being employed by W. C. Scott Company. He filed his Workmen’s Compensation claim before the Industrial Accident Board of Texas. The Board made its final award on September 15, 1975. On July 6, 1976, more than two years after the date of injury, Broyles filed a suit against Coley Properties, a third party, alleging that its negligence proximately caused his injury.

Plaintiff’s injury occurred after the September 1, 1973 amendment to Texas Revised Civil Statutes article 8307, section 6a. The sole question presented to this court on appeal is whether the two-year statute of limitations, Texas Revised Civil Statutes article 5526, bars Broyles’ suit against Coley Properties, the third party. We conclude that his suit is barred by the two-year statute of limitations. The applicable authorities are discussed in Hawkins v. Kysor Industries Corporation, 562 S.W.2d 565 (Tex. Civ.App.—Houston [14th Dist.], 1978), which was handed down concurrently with this case.

Affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    ANGLO EXPLORATION CORPORATION et al., Appellants, v. John GRAYSHON et al., Appellees.
    No. 1768.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 22, 1978.
    Rehearing Denied March 15, 1978.
    William G. Lowerre, Foreman, Dyess, Prewett, Rosenberg & Henderson, Houston, for appellants.
    Royal D. Adams, Frederick R. Zlotucha, Adams & Hunter, A. L. Hernden, San Antonio, Carolos Castillon, Laredo, for appellees.
   J. CURTISS BROWN, Chief Justice.

This is a writ of error from a voluntary non-suit.

John Grayshon and Robert W. Hopf (ap-pellees) filed suit against the Anglo Exploration Corporation and others (appellants) in March 1977. The appellants’ answer contained a general denial and the usual prayer for the recovery of all costs incurred in conjunction with the suit. The appellants subsequently commenced taking the appel-lees’ depositions. On July 15, 1977, after the commencement of the depositions but before they were filed, the appellees sought and obtained a voluntary non-suit. The appellants did not receive notice of the non-suit until August 4, 1977.

The appellants assert, in their first point of error, that their lack of timely notice of the appellees’ motion for non-suit prevented them from contesting that motion, and that they were prejudiced thereby in that they were precluded from having the appellees’ depositions filed in the case. We note, initially, that the appellees’ failure to give the appellants timely notice of their motion for non-suit was both extremely discourteous and in violation of Rule 72 of the Texas Rules of Civil Procedure. Under some circumstances, that failure might afford a basis for reversal and reinstatement of the suit. Although we strongly disapprove of the appellees’ tactics, we recognize that a plaintiff’s right to take a non-suit is nearly absolute. Brooks v. O’Connor, 120 Tex. 121, 39 S.W.2d 22 (1931). Even if the appellants had appeared and contested the appellees’ motion, the court would have been compelled to dismiss the action. The appellants are not prejudiced by the dismissal in any event; depositions that were taken before the dismissal of the action may still be transcribed and filed in the trial court. Even though the appellees failed to furnish the appellants with timely notice of their motion for voluntary non-suit, the granting of that motion was proper and does not furnish a basis for reversal. See Tex.R.Civ.P. 434.

The appellants argue, in their second point of error, that the trial court erred in granting the non-suit because the appellants’ right to be heard on their claim for affirmative relief was prejudiced thereby. The appellants contend, in this regard, that their prayer for recovery of the costs incurred in conjunction with the suit constitutes a prayer for affirmative relief. We agree with the appellants that a plaintiff who abandons an action by obtaining a voluntary non-suit is liable for all costs. J. C. Hadsell & Co., Inc. v. Allstate Insurance Co., 516 S.W.2d 211 (Tex.Civ.App.-Texarkana 1974, writ dism’d); Harris v. Shotwell, 490 S.W.2d 860 (Tex.Civ.App.-Fort Worth 1973, no writ); Bridewell v. Clay, 185 S.W.2d 170 (Tex.Civ.App.-Dallas 1944, writ ref’d). In this case, the trial court should not have granted the non-suit without taxing costs. The appellants’ prayer for recovery of such costs is not a claim for affirmative relief, however, as they contend in their second point of error. See Metal Enterprises, Inc. v. Don Love, Inc., 562 S.W.2d 892 (Tex.Civ.App.-Houston [1st Dist.], 1978). Since the appellants failed to show that they were asserting a claim for affirmative relief and that their right to be heard on that claim was prejudiced by the granting of the non-suit, their second point of error is overruled.

The appellants’ points of error having been fully considered and overruled, the judgment of the trial court is hereby affirmed.

Affirmed.


author: COULSON, Justice.

text:
    Novella ROBICHEAUX, Appellant, v. The AETNA CASUALTY AND SURETY COMPANY, Appellee.
    No. 1748.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 22, 1978.

      Gerald J. Goodwin, Brock, Williams & Boyd, Houston, for appellant.
    Edward J. Hennessy, Randall D. Wilkins, Thurlow & Hennessy, Houston, for appellee.
   COULSON, Justice.

Plaintiff Novella Robicheaux appeals from a judgment entered in favor of defendant Aetna Casualty and Surety Company in a Workmen’s Compensation case stemming from a back injury. We affirm.

In its answer Aetna included a verified denial that the plaintiff had timely filed her claim. Timely filing of a claim is essential to the maintenance of a suit for workmen’s compensation, save in those cases where the requirement is waived upon a showing of good cause. Tex.Rev.Civ.Stat. Ann., art, 8307, § 4a (1967). As a result of the defendant’s verified denial this matter was put in issue, and the claimant had the burden of pleading and proving that she timely presented her claim to the Texas Industrial Accident Board and that if there was a delay in the filing, good cause existed for it. Lee v. Houston Fire & Cas. Ins. Co., 530 S.W.2d 294 (Tex.Sup.1975).

It is uncontested that roughly seventeen months elapsed between the date when the plaintiff was injured and the date when she filed her claim with the Industrial Accident Board. This would normally bar suit on a claim unless the good cause exception applies. The plaintiff, however, argues that under the tolling provisions of article 8307, section 7a, the six-month limitation period never commenced because her employer, though it had knowledge of her injury, failed to file a report of it as required by section 7 of article 8307.

The flaw in the plaintiff’s argument is that though she had the burden of proving that section 7a applies, she failed to establish certain elements of its applicability. As was recently held, section 7a applies only when the employer is required to file a report under section 7, which is to say, only when the employee is absent from work more than one day out of the first eight days after the accident. Lowe v. Pacific Emp. Indem. Co., 559 S.W.2d 370 (Tex.Civ.App.—Dallas 1977, no writ history).

Despite having the burden of proving absence from work, the plaintiff requested no special issues on it; as such, it was waived unless it was conclusively established under the evidence presented. Tex.R.Civ.P. 279. The plaintiff’s evidence failed to meet that test. The testimony of Charles Long, personnel director for plaintiff’s employer, and the plaintiff’s time cards, though somewhat unclear, were sufficient to raise a fact issue on whether the plaintiff was absent from work during the first eight days after her accident.

Similarly, the plaintiff did not conclusively prove that her employer failed to file a report with the Industrial Accident Board.

It remains, of course, that she could show good cause for her failure to file. To that end she offered evidence tending to show that she believed her injuries were due to causes other than the fall she sustained while at her job, and that this caused her to delay the filing of her claim. Specifically, she offered evidence that she had been told by her physicians that her troubles were gynecological in nature. In contrast to this, however, was evidence that the plaintiff’s physical problems only became serious after her fall, testimony by the plaintiff that she was immediately aware that she had hurt herself in the fall, and evidence that she did not file a claim for compensation until approximately seven months after a hysterectomy was performed on her, despite the fact that the hysterectomy did not correct her back troubles. In light of such evidence we hold that the plaintiff failed to establish good cause as a matter of law and that the jury’s finding that she did not have good cause was not so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Affirmed.


author: O’QUINN, Justice.

text:
    COASTAL BEND SAVINGS AND LOAN ASSOCIATION et al., Appellants, v. W. Sale LEWIS, Savings and Loan Commissioner of Texas, et al., Appellees.
    No. 12704.
    Court of Civil Appeals of Texas, Austin.
    Feb. 22, 1978.
    Rehearing Denied March 15, 1978.

      Conrad Werkenthin, Mary Joe Carroll, Clark, Thomas, Winters & Shapiro, Austin, for appellants.
    John L. Hill, Atty. Gen., Thomas Rutledge, Asst. Atty. Gen., for Savings and Loan Commissioner of Texas.
    Dudley D. McCalla, Heath, Davis & McCalla, Austin, for South Texas Savings Ass’n.
   O’QUINN, Justice.

Appellants instituted this suit in district court of Travis County seeking to set aside an order of the Savings and Loan Commissioner granting application of South Texas Savings Association of Victoria to establish a branch office in Port Lavaca. South Texas Savings intervened and is allied with the Commissioner on appeal.

The trial court affirmed the order of the Commissioner, and appellants bring three points of error on appeal. We will overrule the points of error and affirm judgment of the trial court approving the order.

Under their three points of error, appellants contend that there is a lack of substantial evidence to support the Commissioner’s affirmative findings on the three primary standards an applicant is required to qualify under for approval by the Commissioner of a branch office. It is essential that substantial evidence establish a public need for the branch office, probability of profitable operation of the proposed branch, and that undue harm to an existing association will not result from grant of the application.

Appellants do not contend that the Commissioner’s order does not contain a concise and explicit statement of underlying facts supporting the three basic findings, nor do they contend that any of the underlying facts supporting these ultimate findings are erroneous in any respect. Briefly stated, appellants urge that “ . the record considered in its entirely, as it must be, conclusively demonstrates that the findings made by the Commissioners here are arbitrary and not supported by substantial evidence.”

The main thrust of appellants’ attack on the order is mounted from the hypothesis that Calhoun County, and the City of Port Lavaca in particular, are in a state of declining economy, unable to sustain an additional savings and loan office. The attack draws its fire power principally from the arsenal of Dr. George Berry’s testimony, an expert witness in behalf of protesting Coastal Bend Savings, the only savings and loan association now located in Calhoun County.

Appellants rely, for example, on estimated declines in population of both Calhoun County and Port Lavaca from 1970 to 1973 as important in a showing of economic decline. From a population of 17,831 in 1970, Calhoun County declined to an estimated population of 17,750 in 1973, an estimated loss of 81. From 10,491 in 1970, Port Lava-ca’s population slipped to an estimated 10,-488 in 1973, an estimated loss of 3.

Appellants appear to find no substantial evidence in figures showing that prior to 1970 the populations of Calhoun County and of Port Lavaca almost doubled between 1950 and 1970, with the county growing from 9,222 to 17,831 and Port Lavaca from 5,599 to 10,491.

In much the same manner, appellants argue from evidence in the record, which if standing alone, might have supported a decision by the Commissioner to deny the application for a branch office. The duty of the Court is to review the record as a whole in determining whether the order of the Commissioner is supported by substantial evidence. In a hearing before the Commissioner many phases of business conditions within the proposed trade community become matters of importance to the ultimate decision as to whether an application should be granted. These factors include building permits, loan and savings activities, growth or lack of growth of existing associations and banks, and other matters related to the economic health of the community.

The Commissioner noted in the order that although “ . . . the evidence reflects a decline in new dwelling units permitted in Port Lavaca in 1974 . . . total urban permits remain strong . . and the record reflects additional residential construction outside of urban areas.” The record shows that South Texas Savings, applicant for the branch office, had been lending in Calhoun County for more than twenty years, and at the time of the hearing in October of 1975 held 186 savings accounts from Calhoun County in the total amount of $981,000. In addition, the applicant held 141 first mortgage loans, including commercial loans, in the county with outstanding balances in the total sum of $1,692,723.

Although the applicant had drawn business from Calhoun County, as noted immediately above, we find in the record that the existing association, Coastal Bend Savings, increased its savings accounts in excess of $600,000 in the period of nine months prior to the hearing, whereas its largest previous increase for an entire year had been approximately $190,000, or less than one-third the increase experienced the first nine months of 1975.

We have carefully reviewed the entire record, and find in the record abundant substantial evidence in support of the Commissioner’s grant of the application for a branch office. We deem it unnecessary to recount all the evidence offsetting appellants’ claims of declining economy in the community, but two such matters are worthy of notice, as stated in the Commissioner’s order.

After noting that “Gross sales of reporting units in Calhoun County have fluctuated from 1970 to 1974, and declined from $79,629,000 in 1973 to $65,484,000 in 1974,” the Commissioner stated, “Whatever the cause of these fluctuations, the condition of the financial institutions in the community indicate healthy and continued growth. Bank debits for Port Lavaca have increased from $292,722,000 in 1972, to $286,875,000 in 1973 and to $356,181,000 in 1974; on an annualized basis bank debits for 1975 would amount to $412,390,000.”

With respect to savings, the Commissioner found that “Savings and time deposits of individuals, partnerships and corporations increased by more than $10,000,000 in Calhoun County banks from June of 1972 to June of 1975 . Such deposits amounted to 52.6% of total deposits in Calhoun County banks in 1974 as compared to 40.8% for banks in the State of Texas at the same period of time.”

After reviewing evidence showing that Coastal Bend Savings, the existing savings and loan association in Calhoun County, held approximately nine percent of the “effective buying income of Calhoun County,” compared to the state and national history of twenty percent held by savings and loan associations, and other evidence that the banks in the county were above the state average in time and savings deposits, the Commissioner found “there is a public need for a competing, alternative savings and loan facility in Calhoun County.”

The Commissioner found “ . there exists a public need for the approval and operation of this branch office, that there exists a sufficient volume of business in the community to indicate a profitable operation within a reasonable period of time, and that the approval and operation of this branch would not cause any undue harm to any association.”

The findings and conclusions of the Commissioner were approved by the trial court. The judgment of the trial court is affirmed.

      . Appellants are Coastal Bend Savings and Loan Association, The First National Bank in Port Lavaca, First State Bank and Trust Company of Port Lavaca, and Seaport Bank of Seadrift, ail located in Calhoun County; appel-lees are the Savings and Loan Commissioner and South Texas Savings Association, the latter situated in Victoria County.


author: WARD, Justice.

text:
    CATERPILLAR TRACTOR COMPANY, Appellant, v. Santiago GONZALES et al., Appellees.
    No. 6617.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 28, 1977.
    Rehearing Denied Jan. 25, 1978.

      Wiley, Plunkett, Gibson & Allen, Robert A. Allen, Ronald Hornberger, San Antonio, for appellant.
    Clark, Thornton & Summers, W. Burl Brock, San Antonio, for intervenor.

      Gochman & Weir, Warren Weir, John Searzafava, San Antonio, for appellees.
   OPINION

WARD, Justice.

This is a strict tort liability and negligence action where only a design defect is involved. The Plaintiff/operator, while alighting from his Caterpillar tractor-loader, slipped from the muddy step on the machine and was severely injured. Trial was to a jury which determined that the step on the machine was defectively designed by the manufacturer and this was a producing cause of the fall; and that the step was negligently designed by the manufacturer and this was a proximate cause of the fall. All defensive issues submitted on behalf of the manufacturer were rejected by the jury. Based upon the jury’s verdict, judgment was entered that the Plaintiff recover from the manufacturer the sum of $252,991.05, a portion thereof being awarded to the intervenor workmen’s compensation carrier by virtue of subrogation rights from the payment of the Plaintiff’s workmen’s compensation claim. Caterpillar appeals and we reverse and render.

The Plaintiff, Santiago Gonzales, age 29 at the time of the accident, had a sixth grade education and had been employed by Frio County for three years as a dump truck driver and as an operator of the front end loader. In April, 1971, Frio County purchased the 941 front end loader and the Plaintiff had been operating it from the start. During the one and one half years the machine was used, he had become familiar with its operation and had climbed up and down the 941 literally thousands of times, having had to climb on and off the machine some ten or fifteen times a day when he was the operator. He had frequently used it under the same wet weather condition as he encountered on the day of the accident, and had worked in mud and knew that on those occasions mud collected on the tracks and on the side of the machine, including the area where the step was located. At the time of the accident, the machine was being operated in a muddy caliche pit. The Plaintiff was familiar with muddy caliche and knew it was slippery. September 21, 1973, was a foggy and rainy day and the Plaintiff accumulated mud on his boots before he got up on the machine. He did not clean off his boots prior to dismounting. The step in question was a U-shaped step welded to the side of the roller frame guard between the tracks and was some 22 inches above the ground. For its protection, the outside of the step is located within the outside edges of the tracks. Of necessity, when a person dismounts, he has to lean backward to see the step. When the Plaintiff dismounted, he got up from his seat, turned around and faced the machine and grabbed the grab irons. He leaned back to see where the step was in order that he could put his foot in it and noticed that the step had mud on it. He placed his foot on the step, his foot slipped, his hands then slipped from the grab irons, and he fell backward to the ground and suffered his injuries.

The machine was a 941 Traxcavator, manufactured by Caterpillar in January, 1969. It was a comparatively small tractor front end loader standing some six feet in height with a bucket loader all across the front and a heavy ripper all across the rear of the machine. The step was manufactured from a flat piece of ¼⅛ inch steel with two right angle bends in it to form a shallow U-shaped piece. The two legs were then welded to the rocker frame guard so that the step is parallel to the ground and thus protruding out from the roller frame, though, as stated, not as far as the outside edge of the tracks. To keep the foot from slipping sideways, there is a shallow notched pocket 8 inches wide and ½ inch deep designed as the area where the foot should be placed. As indicated, the step is located between the tracks, is 22 inches from the ground and 15 inches from the top track. The top track of the Caterpillar is used as a second step, and from the top of the track to the floor of the operator’s station, there is an additional 14½ inch step. On the left side of the tractor, where the accident occurred, there is a grab iron welded to the front side of the entrance to the operator’s station, and on the back side of the entrance, a grab rail extends from over the top of the tractor to the bottom of the operator’s station entrance. Since the step in question is U-shaped, dirt, mud and debris falling on it will tend to pass through and fall to the ground.

The Plaintiff’s pleadings were to the effect that the step on the Caterpillar was defectively designed and that the defective design was a producing cause of the accident; that the Defendant negligently designed the step and that the negligence was a proximate cause of the accident. To sustain his position, the Plaintiff has relied on an expert’s testimony and opinion that the design of the step was unreasonably dangerous and that it was negligently designed; that the design failed to meet three of the Defendant’s own guidelines or standards regarding safety designs of steps; and finally, that a substitute was available which was inexpensive to construct and which remedied the one problem relative to mud on the Defendant’s step. In this regard, the expert testified that when a person was getting off of the Caterpillar that the step was “extremely difficult to see.” When the Caterpillar was operating in mud, the mud would accumulate on the bottom of the track which, like a conveyor, transported the mud around and deposited the mud in big clumps right on the step, and that the particular design “maximized the accumulation of debris.” The step did not have anti-skid material on it, and it was so constructed that only one foot could be used in getting off of the machine. He testified that “you have to lean out and see to make you you don’t put your foot where there isn’t a step,” and having to lean out in order to see the step posed an additional hazard.

A design reference had been worked up by the Defendant by the summer of 1968, and it provided that steps should be designed to minimize the accumulation of debris, that all steps should be coated with an anti-skid material, and that when steps were in series, they should be designed so that either foot might be used on any step. The Plaintiff’s expert pointed to these references as the Defendant’s standards which had been violated in the design of this particular step. Undoubtedly, the step was in a location where mud would be dropped on it. The ¼⅛ inch step did not have any anti-skid material on it, and only one foot— the right — could comfortably be used on the left side of the machine.

As stated, the expert recommended the adoption of either of two remedial designs. One of these resembled somewhat a drawbridge which would fold out from the operator’s station, could then be lowered by the operator out over the track, and the operator would then step on flat surfaces to the ground. The expert testified that the Company’s three criteria mentioned would easily be met by each of the respective devices and each one of the devices could be folded out of the way in such a manner that they would not get knocked off and would never get covered with mud. Finally, the expert claimed that folding ladders were successfully used on other types of front end loaders and had been so used prior to the construction of the model 941.

Countering the above was the Defendant’s testimony that a conscious design choice had been made by Caterpillar of the step after a careful evaluation of the intended function and use of the machine and the conditions that it was expected to encounter, and with the use of a planned step design for quick ingress to and egress from the operator’s station. This was all done within the background that the step had been used thousands of times by numerous other operators under every conceivable kind of condition without complaint. The Defendant’s design engineers testified that they felt that the guidelines in question were met; that the step itself provided a sharp edge which itself would be an anti-skid surface; that the step was designed so that mud and debris would drop to the ground in the opening of the U-shape; and that the leaning backward presented no problem as the system was designed so that the operator would have three limbs on the system at all times — that is two hands and one foot.

The engineers were familiar with a retractable ladder and admitted that they were used on some front end loaders. However, they pointed out that they were used only on large wheeled vehicles where the devices were protected from damage by the large rubber tires. They further testified that up to the present time no track front end loader ever manufactured had used the retractable ladder system. The design decision forcing the simple step selection over the retractable ladder was based on many factors. As opposed to a wheel loader, which operates on relatively flat, dry surfaces, the track loader operates in all kinds of conditions — flat rocky floors, steep slopes, mud, dry dust, snow, against rock walls, and in heavy timber. These requirements were such that durable construction was absolutely required. Further, the problem of getting a retractable ladder that would go out and over the side of the tracks was insurmountable. Some machines worked with variable track widths. The folding ladder concept was very susceptible to damage from encounters with rocks, tree limbs, and debris. The ladders were also susceptible to damage from operator forgetfulness, that is one of the ladders not being retracted when the machine was started. Of the two designs suggested by the Plaintiff’s expert as alternatives, the simplest one would have the step some 33 inches from the ground — a distance quite beyond the reach of 50% of all operators. The simple design also featured handles that would fold in front of the operator where the control area would be useless. As to the more complicated suggested drawbridge-type design, it was criticized as being a finger-pincher, a clothing-catcher, and from parts that protruded from the side of the vehicle when folded would eventually be knocked off or damaged in operating conditions where tractors would be used. Due to the work use contemplated for the machine, the folding ladder concept was thought to be absolutely impractical since the machine was designed for digging basements, working against high walls, for backfilling along the sides of houses, and for working in heavy timbers. Such tight construction work would prevent the operator from using any folding ladder while egressing, and the ladder would then be absolutely useless and in the way.

The following special issues and the jury’s answers thereto established Caterpillar’s primary liability:

“Question No. 1:
“Do you find, from a preponderance of the evidence, that the step on the Model 941 Caterpillar Traxcavator in question, was defectively designed at the time it was sold by defendant, Caterpillar Tractor Company?
“By the term ‘defectively designed’ is meant such a design as would create an unreasonable risk of harm to the ordinary user of the product involved when the product is used in the manner in which it was intended to be used.
“By the term ‘unreasonable risk of harm’ is meant such a risk of harm as is more dangerous than would be contemplated by the ordinary user who uses the product with ordinary knowledge.
“Answer ‘It was,’ or ‘It was not.’
“We, the Jury, answer It was.”
“Question No. 4:
“Do you find, from a preponderance of the evidence, that defendant, Caterpillar Tractor Company, negligently designed the step on the Model 941 Caterpillar Traxcavator in question?
“ ‘Negligently,’ or ‘Negligence,’ means failure to use ordinary care, that is to say, failure to do that which a reasonable and prudent manufacturer engaged in the manufacture of like or similar equipment would have done under the same or similar circumstances, or doing that which a manufacturer with ordinary prudence would not have done under the same or similar circumstances.
“Answer ‘We do,’ or ‘We do not.’
“We, the Jury, answer We do.”

The Defendant has “no evidence” points challenging the findings that the step was defectively designed and that the Defendant negligently designed the step. While these are not the first points raised by the Defendant, they are necessarily the decisive ones and therefore will now be disposed of.

We are in a foggy area at best when we attempt to determine liability for an alleged defect made as a result of a conscious design choice. As applied in this area in this State, Section 402A, 2 Restatement of Torts 2d (1965), requires that before strict liability can be applied, the product sold must be in a defective condition, unreasonably dangerous to the user or consumer. Defective condition and unreasonably dangerous are considered as one concept and the test applied is a bifurcated one adopted by the Supreme Court in Henderson v. Ford Motor Company, 519 S.W.2d 87 (Tex.1974); that to determine that the step was unreasonably dangerous, the factfinder has to decide that the step threatened harm to persons using it to the extent that the step either would not be used by a prudent manufacturer aware of the risks involved in its use, or that the step would not meet the reasonable expectations of the ordinary consumer as to its safety. See footnote, General Motors Corporation v. Hopkins, 548 S.W.2d 344 at 347 (Tex.1977).

By some form of osmosis, the above is transformed into a balancing test of weighing the risk of harm against the utility of the product where the factors suggested by Wade, “Strict Tort Liability of Manufacturers,” 19 S.W.L.J. 5 at 17 (1965), can be used to determine the issue, though neither the balancing test nor the factors are submitted to the trier of the facts. Regardless of that, the factors involved in making the balancing test include, among others, the following:

“ * * * (1) the usefulness and desirability of the product, (2) the availability of other and safer products to meet the same need, (3) the likelihood of injury and its probable seriousness, (4) the obviousness of the danger, (5) common knowledge and normal public expectation of the danger (particularly for established products), (6) the avoidability of injury by care in use of the product (including the effect of instructions or warnings), and (7) the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive.”

Rourke v. Garza, 530 S.W.2d 794 at 799 (Tex.1975); see application in Weakley v. Fischbach & Moore, Inc., 515 F.2d 1260 at 1267 (5th Cir. 1975).

As often happens in these cases, the evidence introduced and the method chosen by which the case is submitted to the jury creates a further area of uncertainty. The evidence was an attempt to aid the jury regarding the first part of the approved bifurcated instruction, that is the evidentia-ry battle was over what a prudent manufacturer aware of the risks involved in the use of the step as revealed at the time of trial would or would not do. Little evidence is before us which would aid the trier of the facts in determining just what kind of a step would or would not meet the reasonable expectations of the ordinary tractor driver as to its safety. Yet as seen from the charge, the jury was instructed only in language suitable to this second part of the bifurcated test. However, this is not a fatal defect in the evidence. See Turner v. General Motors Corporation, 514 S.W.2d 497 at 507 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n. r. e.).

Final uncertainty is noted in the balancing act concerning the suggested factors. As yet unanswered is any determination of how much the factors weigh so that it can be said with any reasonable determination just where the decision has ceased to be one for the Court and has become a fact issue for the jury.

Yet certain absolutes are said to exist in the field: (1) Strict liability cannot be equated to absolute liability. The step has to be dangerous to an extent beyond that which would be contemplated by the ordinary user with the ordinary knowledge common to the community as to its characteristics. 2 Restatement of Torts 2d, Sec. 402A, Comment “i” (1965). (2) The manufacturer is not required or legally obligated to design the safest possible product, nor is he a guarantor that no harm will befall the user. Henderson v. Ford Motor Company, supra at 93; Prosser, Torts, 4th Ed. HB, Sec. 96 at p. 645 (1971). (3) Design alternatives, which would have prevented the accident, standing alone are insufficient to establish liability. Weakley v. Fischbach & Moore, Inc., supra at 1267. (4) On the other side of the coin, the fact that the manufacturer of a product has been in conformity with a nationwide industry standard does not prevent a finding that the defect was unreasonably dangerous. Turner v. General Motors, supra.

Turning from generalities to the suggested factors, we find that the step was a simple device designed to stay on the tractor as long as the machine lasted regardless of the extreme conditions under which the machine operated. The alternative designs had been found to be unsatisfactory on track vehicles, although they were safer according to the Plaintiff’s expert witness when one of many possible conditions was encountered — that is, mud; unsafer according to the Defendant’s experts as potential finger-pinchers and clothing-catchers. Obviously, the alternatives were no-contest items when it came to the convenience to an operator whose job called for repeated use of the egress system during the day.

As to the likelihood of injury from the step, that was minimal. The Plaintiff admitted he had climbed off of the machine some 3,000 times, many times in the mud and with no injury. Two other operators testified that they had slipped off the step because of mud but with no harm. The step was only 22 inches from the ground and if one held on to the grab irons, there was no likelihood of injury from any slipping. This was verified by the Defendant’s ten to fifteen years’ experience with the same step where no field complaints were received.

Without equating voluntary assumption of the risk with strict liability, some matters usually associated with that defense become of primary importance in disposing of the threshold question of the manufacturer’s liability. This step was a simple device where any risk arising from its use was open, obvious and known to anyone who used the machine. This Plaintiff did lean backward, he did see the step, he did place his foot on the step, and he did see the mud. This is not a question of assumption of risk where the subjective appreciation of danger by the Plaintiff is involved. The Plaintiff’s actions and what was apparent to him are important in determining if the step was “in a defective condition unreasonably dangerous.” This is determined by an objective test and not by the Plaintiff’s subjective appreciation of danger. 2 Restatement of Torts 2d, Sec. 402A, Comment “i” (1965). As part of the Plaintiff’s case, the Plaintiff was required to show that the condition which caused the injury was dangerous to an extent beyond that which would be contemplated by the ordinary consumer with ordinary knowledge common to the community. Any minimal danger presented by reason of the design of the step was open, obvious and objectively chargeable to the Plaintiff. Morrow v. Trailmobile, Inc., 12 Ariz.App. 578, 473 P.2d 780 at 785 (1970).

Yet, the expert called by the Plaintiff testified that the step was unreasonably dangerous. But this is in an area where common experience and knowledge apart from expert testimony could determine that the step was not unreasonably dangerous, that is, it was not dangerous to an extent beyond that which would be contemplated by the ordinary consumer who used the step with the ordinary knowledge common in the community as to its characteristics. The expert used the step some twenty times. The Plaintiff used the step 3,000 times and very effectively said it was not dangerous. In this case, the opinion of the expert does not control over common experience and common sense. General Motors Corporation v. Hopkins, supra at 348.

When the Plaintiff saw the mud on the step, he could have held on to the grab irons and felt for the step — a matter of common knowledge. Thus, the shoe manufacturer was not liable for any design defect in the sole of the shoe which became slippery when wet — a condition common to almost all shoes when wet and commonly known. Fanning v. LeMay, 38 Ill.2d 209, 230 N.E.2d 182 (1967). Nor was a prima facie cause of action established where the Plaintiff fell while wearing new shoes, the condition of the soles being obvious and known to the Plaintiff. Bennett v. International Shoe Company, 275 Cal.App.2d 797, 80 Cal.Rptr. 318 (1969). A directed verdict for the manufacturer was upheld in the strict liability and negligent design case of Askew v. Howard-Cooper Corporation, 263 Or. 184, 502 P.2d 210 (1972). There, the operator slipped from his log-loading machine when servicing grease fittings. The Court pointed out that all of the fittings except two could have been serviced from the ground and that those two could have been reached from any solid place three feet high, and that the failure to equip the machine with ladders and rails with which to climb on the machine did not create a cause of action. See also Morrow v. Trailmobile, Inc., supra; Vincer v. Ester Williams All-Aluminum Swimming Pool Company, 69 Wis.2d 326, 230 N.W.2d 794 (1975).

After testing the evidence under the “no evidence rule,” we find that the Plaintiff has established some of the factors which have been discussed. However, after weighing those that were established against the undisputed evidence in this case, we hold that there was no testimony to establish the finding that the step in question was so designed as to be unreasonably dangerous. Henderson v. Ford Motor Company, supra at 94. To hold otherwise would be a step toward the establishment of jury-whim liability in the field of the design defect, the condition warned against in the Henderson article, “Judicial Review of Manufacturers’ Conscious Design Choices: The Limits of Adjudication,” 73 Colum.L.Rev. 1531 at 1578 (1973).

We conclude that the step did not contain an unreasonably dangerous defect, and that as a matter of law it was as safe as it reasonably could be. The Defendant’s “no evidence” point regarding the finding that the step was defectively designed is sustained.

We next come to the Defendant’s attack on the jury’s negligence finding. It is now generally recognized that in the improper design area, there is little difference between strict tort liability and negligence where the action is against the manufacturer. The proof in the negligence area is similar to that in strict liability under Section 402A where the plaintiff must establish “a defective condition unreasonably dangerous,” which is merely negligence language in a strict liability setting. See Duvall, “Products Liability,” 6 Tex.Tech.L.Rev. 1177 at 1180 (1975).

A manufacturer’s duty of care with regard to the manufacture and design of his product in the negligence field is expressed in Sections 395 and 398 of 2 Restatement of Torts 2d (1965). Section 395 is the general provision and Section 398 is the rule’s special application where the manufacturer of a chattel may be liable in negligence for its faulty design. The latter Section provides:

“A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.”

The “intended use” limitation has been held to be merely an adaptation of the test of foreseeability of the risk. Otis Elevator Company v. Wood, 436 S.W.2d 324 (Tex.1968). We conclude that the evidence in this case does not make a case of negligence against the manufacturer regardless of the muddy conditions encountered. All the Plaintiff had to do was to firmly hold on to the grab irons. He would not have suffered harm even if his foot had slipped. No latent defect was involved, and the use of the step created only a slight risk of harm that was known to the user. We hold that there was no evidence in the record that the manufacturer failed to exercise reasonable care in the adoption of a safe design. The Defendant’s “no evidence” attack on the negligence finding is sustained.

We do not reach the Defendant’s other points. The judgment of the Trial Court is reversed and is here rendered that the Plaintiff and intervenor take nothing.


author: PALMORE, Chief Justice.

text:
    Morris WELLS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Jan. 10, 1978.
    Rehearing Denied April 11, 1978.

      L. Owen Doyle, Paintsville, Dan Jack Combs, Pikeville, for appellant.
    Robert F. Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Chief Justice.

Morris Wells appeals from a judgment entered pursuant to a jury verdict finding him guilty of murder and fixing his punishment at life imprisonment. KRS 507.020.

The indictment was returned on July 9, 1975. It accused Wells of having shot and killed one James Byrge on or about June 22, 1975. Though for some unaccountable reason the record on appeal does not contain any of the orders relating to it, other references in the transcript of evidence and briefs disclose that the first trial of the case took place in August of 1975 and ended in a hung jury. The second trial, now under review, was held in November of 1976. The significance of this hiatus is that Mary Wells, a material witness for the prosecution, who was divorced from Wells at the time of the first trial, remarried him before the second trial and asserted her privilege not to testify against him in the latter proceeding, cf. KRS 421.210, thus precipitating what we consider to be the major question raised by the appeal.

It is not necessary to state the facts of the case in great detail. Morris and Mary Wells, after some 12 years of marriage, were divorced in January of 1975. Soon thereafter Mary moved from Winchester, where she and Morris and their two children had resided, to Paintsville. Meanwhile, following the divorce Mary had been seeing Jim Byrge and they were planning to be married. On the night of June 21, 1975, Mary, Jim and Mary’s daughter Peggy attended a ball game in which Mary’s son Gary participated. Afterward, all four went to Mary’s apartment in Paintsville. At some time after midnight Morris Wells, armed with a pistol, forced his way into the apartment and engaged in a gun-fight with Jim Byrge. Byrge was mortally wounded.

Mary’s testimony at the first trial made it abundantly clear that Morris Wells was the aggressor in the fatal encounter. At the second trial, when she claimed the veil of privilege as his wife, the trial court, over objection of counsel for Morris, permitted the Commonwealth to read into the evidence her testimony given at the first trial.

KRS 422.150 provides that the testimony of a witness recorded at a trial may under appropriate circumstances be used as evidence in a subsequent trial, but that “no testimony so taken shall be used in any criminal case without the consent of the defendant.” It is a very old statute. Quite obviously it originated in an era when the constitutional legitimacy of this type of evidence was viewed with considerable skepticism. Even before the advent of our Rules of Criminal Procedure, the court was carving from it exceptions deemed essential to consist with simple justice. Cf. Fuqua v. Commonwealth, 118 Ky. 578, 81 S.W. 923, 924-925 (1904), in which the proscription against use without consent of the defendant in a criminal case was limited to the recorded testimony of witnesses still living. In 1965 RCr 7.22 placed the trial testimony of a witness on the same footing as a deposition, and in Noe v. Commonwealth, Ky., 396 S.W.2d 808, 810 fn. 1, it was suggested that to the extent of any inconsistency between KRS 422.150 and RCr 7.22 the Rule prevails. As it would be an utter absurdity to say that testimony given by a witness in court could not thereafter be used under circumstances in which, had it been taken by deposition outside the courtroom, it could be used, surely it must follow that the statutory proscription against its admissibility without consent of the defendant has been superseded by the procedural rules applicable to depositions and can no longer be regarded as having any practical or legal effect.

It is further contended, however, that even under the Rules of Criminal Procedure the previous testimony of a witness still living, physically capable of testifying, and present within the jurisdiction cannot be admitted as evidence in chief. Literally, this would appear to be so, because in enumerating the circumstances under which a deposition may be used RCr 7.20(1) expressly mentions only the following: (1) That the witness is dead; (2) that the witness is absent from the state (unless such absence was procured by the party offering his testimony); (3) that the witness is unable to attend or testify by reason of sickness or infirmity; and (4) that the party offering the deposition has been unable to reach the witness by subpoena. We think, however, that the Rule is not to be so narrowly construed. Its clear purpose is to preserve the evidence against the event of the witness’ becoming unavailable to testify. This witness, Mary Wells, though living and present, was just as unavailable to the Commonwealth as if she had been dead or out of the state.

“The general principle upon which depositions and former testimony should be resorted to is the simple principle of necessity —i. e., the absence of any other means of utilizing the witness’ knowledge. If his testimony given anew in court cannot be had, it will be lost entirely for the purposes of doing justice if it is not received in the form in which it survives and can be had. The only inquiry, then, need be: Is his testimony unavailable?” Wigmore on Evidence, § 1402 (Chadbourne Rev.1974).

“A disqualification by subsequently acquired interest or the exercise of privilege makes the witness’ present testimony unavailable, and hence should suffice to allow resort to his deposition or former testimony. This doctrine was not accepted in early English common-law practice; which was followed by our courts in a few instances. But it was well established in English Chancery practice, and this would probably be generally followed in our courts.” Id., § 1409.

At its very best, the rule that one party to a marriage cannot be compelled to testify against the other, codified in KRS 421.210, is one of the most ill-founded precepts to be found in the common law. It is enough that it continues to exist at all. When it is encountered it is better to be trimmed than enlarged. Least of all should it be allowed as a gambit to expunge evidence that was perfectly proper and admissible when given. We need not say, of course, that Mary Wells could or should have been compelled to testify at the second trial, but what we do hold is that neither she nor her husband could prevent the use of testimony given by her at a time when she did not have the privilege.

The other claims of error are of less gravity. Whether the search that produced the pistol used by Wells in shooting Byrge was proper is immaterial for the simple reason that the evidence in question was not prejudicial anyway. That Wells shot Byrge was proved by such a superabundance of evidence that no competent juror could have doubted it. The case would have been equally strong without the gun. If the search was unlawful, which we do not decide, the error in admitting the evidence was harmless beyond a reasonable doubt.

We think it was plainly in error for the trial court to strike the evidence of the character-witnesses Conley and Pierce on the apparent basis that under cross-examination they could not supply the name or names of anyone they had heard discuss Wells’ reputation. Again, however, we cannot believe that this testimony, which the jurors, after hearing it, were admonished not to consider, had any substantial bearing on the verdict.

The special prosecutor’s characterization of the victim’s “crawling away dying” and having “bloody handprints” on the floor, though not literally supported by any evidence to that effect, did not sufficiently differ from what did happen, according to the testimony of Mary Wells, to justify a reversal on that ground. It was just about as bad no matter how it might have been cast in flights and figures of speech. We think there is very little likelihood that this forensic display could have conjured in the minds of the jurors any visions different from what they had perceived from the evidence.

The judgment is affirmed.

All concur.

      .RCr 12.56 (now superseded by CR 75.07) directs the trial court clerk to prepare and certify “the entire original record on file in his office, other than depositions not read in evidence,” etc.

      . See Ch. 269, § 7, Acts of 1893.

      . The Rules of Criminal Procedure became effective on January 1, 1963.

      . See also the later cases cited in Commonwealth v. Bugg, Ky., 514 S.W.2d 119, 120 (1974). In Bugg, the previous testimony was held inadmissible only because RCr 7.22 limits the testimony to “the same charge in the same court.”

      . Manning v. Commonwealth, Ky., 328 S.W.2d 421, 425 (1959), was decided prior to the adoption of the Rules of Criminal Procedure.


author: REED, Justice.

text:
    Timothy GRAHAM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 21, 1978.
    Rehearing Denied April 11, 1978.

      Blake H. Page, Winchester, for appellant.
    Robert F. Stephens, Atty. Gen., David M. Whalin, Asst. Atty. Gen., Frankfort, for appellee.
   REED, Justice.

Appellant, Timothy Graham, was accused by indictment in the Wolfe Circuit Court of the murder of his brother, Reed Graham. Venue was changed first to Rowan County and then to Bath County. A jury trial in the Bath Circuit Court resulted in a conviction for manslaughter. Appellant claims that he was subjected to double jeopardy and that, in any event, the prosecution’s evidence failed to make out a submissible case against him. We affirm.

From the sketchy record presented, it appears that when the case was first called for trial and after the jury was selected and sworn, but before the first witness was sworn, the appellant through counsel stated to the court that he had not been arraigned. The Commonwealth thereupon moved to set aside the swearing of the jury and to continue the case. The trial judge granted the Commonwealth’s motion. The swearing of the jury was set aside, the appellant was properly arraigned, and the case was reset for trial at a later date.

When the case was again called for trial, the appellant pleaded double jeopardy. The trial judge denied the plea and the trial proceeded. The jury verdict found appellant guilty and fixed his punishment at confinement for 20 years. From the final judgment entered pursuant to the verdict, this appeal is prosecuted.

The Kentucky Penal Code, which was made effective January 1, 1975, provides at KRS 505.030:

“When a prosecution is for a violation of the same statutory provision and is based upon the same facts as a former prosecution, it is barred by the former prosecution under the following circumstances: .
(4) The former prosecution was improperly terminated after the first witness was sworn but before findings were rendered by a trier of fact. Termination under either of the following circumstances is not improper;
(a) The defendant expressly consents to the termination or by motion for mistrial or in some other manner waives his right to object to the termination; or
(b) The trial court, in the exercise of its discretion, finds that the termination is manifestly necessary.” (emphasis supplied).

The official commentary to our Penal Code states:

“The provision provided in subsection (4) is a codification of prior law, except for a slight change in the point at which jeopardy attaches. Previously, in a jury case, jeopardy attached when the jury was impaneled and sworn. Baker v. Commonwealth [280 Ky. 165], 132 S.W.2d 766 (1939). The change that is made by subsection (4) serves only to create the same rule for jury and nonjury trials.”

This definition of the attachment of jeopardy is identical to that contained in the American Law Institute’s Model Penal Code. See Model Penal Code section 1.09, Comment at 53, Tent. Draft No. 5, (1956). The Institute could find no compelling reason to perpetuate the distinction between jury and bench trials as to the point at which jeopardy should be deemed to attach.

Appellant appears to concede the applicability of KRS 505.030(4), but urges that the change effected by the statute violates a mandate of the Constitution of the United States. He cites Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) in support of this contention. We read Serfass as holding that because jeopardy had not attached under either of the historical rules of construction for the determination of the point of attachment when the proceedings were terminated, a subsequent trial to judgment did not violate the federal Double Jeopardy Clause. The Supreme Court has neither in Serf ass nor in any other case of which we have knowledge held that the federal rules for the determination of the attachment of jeopardy are constitutionally obligatory on the states. From Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), to Serfass, the Supreme Court has recited without discussion or analysis the federal case law rules that jeopardy attaches in a jury trial when the jury is impaneled and sworn and in a nonjury trial when the first witness is sworn.

In Bretz v. Crist, 546 F.2d 1336 (1976), the federal Ninth Circuit Court of Appeals struck down a Montana statute which has the same provisions as does KRS 505.030(4). The Supreme Court granted certiorari sub nom. Crist v. Cline, - U.S. -, 98 S.Ct. 603, 54 L.Ed.2d 475. The Court has ordered reargument in this case on the following questions:

1. Is the rule heretofore applied in the federal courts — that jeopardy attached in jury trials when the jury is sworn — constitutionally mandated?

2. Should this Court hold that the Constitution does not require jeopardy to attach in any trial — state or federal, jury or nonjury — until the first witness is sworn?

Although we have deepest respect for the outstanding scholar and jurist who authored the Ninth Circuit’s extensive opinion in Crist, we are unable to agree with the conclusions reached by that court. Without retracking the paths explored by the Crist opinion, we think it suffices to say that we perceive no real or substantial danger to the validity of the federal double jeopardy guarantee by the removal of a historical anachronism.

Jeopardy attaches when a defendant is placed on trial before the trier of the facts. In defining the point at which the defendant is “placed on trial” what constitutional significance should the number of triers of fact bear to the determination? The Crist opinion relegates this consideration to a footnote where the court remarks that a major purpose of the double jeopardy clause is the protection of the defendant’s right to have his trial completed by a particular tribunal. Then the footnote states: “When one sees that the two attachment of jeopardy rules are necessary if this ‘valid right’ is to be protected, the reason for the distinction seems plain.” Bretz v. Crist, supra, at ft. n. 21, pp. 1345, 1346. We fail to see that which the opinion characterizes as “plain.”

If a defendant is tried by a single fact finder, he is “in jeopardy” as quickly in the trial process as if he were to be tried by six fact finders, nine fact finders or twelve fact finders.

For a state to legislatively fix the same point in the trial process as the time of the attachment of jeopardy in both jury and nonjury cases surely has less constitutional impact or significance than for a state to provide for criminal felony trials by less than the apostolic twelve or to permit conviction of crime by a verdict less than unanimous. Yet both of these state-enacted provisions for the mechanical operation of criminal trials have successfully passed federal constitutional review by the Supreme Court.

We hold KRS 505.030(4) constitutional under our federal and our state constitutions. If the U.S. Supreme Court holds otherwise as a matter of federal constitutional lav/ we will, of course, respectfully conform to its decision, but we have expressed our views so the parties would not be left in a state of uncertainty concerning our present conclusions.

Appellant’s claim that the evidence was insufficient to make a submissi-ble ease was not preserved for appellate review. No motion for a directed verdict of acquittal was made at the conclusion of all the evidence. See Kimbrough v. Commonwealth, Ky., 550 S.W.2d 525, 529 (1977). In any event such motion could not have succeeded because the prosecution’s evidence was sufficiently strong to support the jury’s finding of guilt as not clearly unreasonable. See Trowel v. Commonwealth, Ky., 550 S.W.2d 530, 533 (1977).

The judgment is affirmed.

All concur.