*1 being material element of There sufficient evidence on each degree burglary, judgment first is affirmed.
Judgment affirmed.
Robertson, Lowdermilk, J., C.J. and concur. Equipment Co.,
Glenn White Truck Inc. & February 20, 2-473A89. Filed
[No. 1975.] *2 Davis, Indianapolis, Thomas Marshall, L. J. Richard Dennis, Cross, Raisor, Marshall, Muncie, Jordan & for appellant. Clark, White, Pierce, Beasley
Charles R. & Gilkison of Muncie, appellee. for Summary
Case Plaintiff-Appellant Gregory (Greg Glenn Buchanan, J. ory) appeals liability judgment products from an in adverse (fifth sought damages assembly) action wheel in he for which against and breach of Defendant- Appellee Equipment Company (White), White Truck & claim ing directing negli the trial court in erred a verdict on the gence instructing claim and the warranty. is defense to action for breach of reverse.
We
FACTS Gregory (the facts and evidence most favorable to against party judgment sought whom the on the evidence was entered) are: February purchased Gregory In from new White a $22,896.00, diesel Reo cab-over tractor he intended freight hauling to in his use business. sale, agreed part
As to White install on the tractor assembly. hitch, commonly a semi-trailer known as a fifth wheel devices, ving installing experience had no such Ha authorized White to attach to tractor proper manner. assembly to
White selected Holland brand fifth wheel install new In to on the tractor. order do so the fifth wheel assembly (which tractor) was had been taken another the frame attached to tractor means or tabs of ears designed edge over the tractor. extend the frame of the assembly These “ear tabs” were then bolted to frame. The pre-drilled contained holes bored the manufacturer so that assembly could be utilized to the fifth “U-bolts” fasten wheel securing of the frame tractor. or other No U-bolts device, spacer such clamps, bar were used fasten assembly to the tractor frame. assembly placed frame,
When the on the tractor it was *3 enough that discovered it was not wide to attach to the adapted assembly White frame. therefore the to fit the by removing re-welding tractor frame the ear tabs them and assembly. at a location different on the The tabs were then bolted to the tractor frame. Gregory’s purchase of
On at least three after occasions tractor, the he discovered that the ear had broken loose tabs point they assembly; at the where had been re-welded to the and on each occasion he returned the tractor who White assembly. re-welded the them to July 20, 1965, on Gregory towing cargo
Then was a laden highway semi-trailer the with tractor over a lane two Pennsylvania speed at approximately per forty miles (the speed posted limit). Gregory approached hour As slight road, tractor, suddenly left-hand curve in the the warning, and, turn, without would steer left into the with screaming, its pavement. front tires continued forward off the trial, Gregory thing At testified that the next he remembered upside the tractor was ditch at down the the side of highway semi-trailer, separated the had from the tractor, seventy-five approximately came to rest feet behind the tractor.
After the accident wheel determined the fifth assembly point had broken off of the tractor frame at the where ear tabs had been re-welded. It was attached to the frame trailer. The severed ear tabs on remained the frame of the tractor. imprints also testified the trailer made asphalt pavement highway of the his and that
analysis rapid events, separated of the chain trailer had highway from the dropped tractor while in motion on the causing road tractor to under- lurch forward from neath the highway trailer and careen off into the ditch.
Gregory’s complaint third amended filed on December damages 1969, sought $28,000.00 cargo, to the trailer and proceeded complaint upon tractor. The two theories: (1) Negligence of White in installation the fifth wheel assembly, and
(2) implied warranty an particular Breach of of fitness for purpose.1 trial, Gregory produced expert
At One, Roy two witnesses. Elton, always securing testified that he used additional devices installing besides tabs and welds fifth wheel assemblies. examination, securing however, On cross stated that Elton assembly only use of ear welded tabs considered proper if the properly. tabs are welded *4 witness, expert Morris,
The other Jack it stated was his opinion necessary that it was to use U-bolts addition to assembly frame, ear to fasten fifth wheel tabs to the tractor recognized practice necessity that by such as a majority of truck dealers. Gregory judgment
After his case rested White moved for a on the evidence in its favor as both to and breach theories, alleging warranty Gregory that show failed to (Burns Act, Repl.) ; Ind. 1. Uniform Sales Ann. Stat. § 58-115 present Code, 1971, 26-1-2-315, Uniform see Commercial IC Repl.). (Burns TWO, See ISSUE §19-2-315 infra. wrong- alleged proximately was caused its that accident ful conduct defective installation. or
The trial motion the breach court denied White’s as to granted claim, finding warranty negligence, but that damages Gregory proxi- failed to establish his were that negligent mately fifth caused White’s installation of the assembly. wheel proceeded then claim case on the breach of
only. Pennsylvania witness, produced
As a defense State White Trooper present accident. Titus who was at the scene of the fifty traveling He testified that admitted to about per miles hour at the time the tractor trailer out went per (ten speed control miles hour excess of the limit objection, vicinity). expressed opinion that Over Titus his Gregory’s speed excessive loss caused of control. evidence, At the close all the Gregory’s and over objec- tions, following trial court read the instructions to the relating Gregory’s “contributory negligence”:
Instruction No. 3 plaintiff “The has proving following the burden of
propositions: First: That defendant implied warranty breached on particular of fitness for purpose. plaintiff’s property Second: That the damaged. was Third: That breach of of fitness particular purpose for the proximate was the damage plaintiff’s cause property. If you find from a consideration of all the evidence that propositions these proved your been then verdict plaintiff. However, you be for the should consideration of if find all the any proposi- evidence that of these proved, you have not been tions himself or if find guilty contributory negligence, your verdict be for the defendant.” should No. 5 Instruction you
“The Court instructs that contributory negligence *5 implied warranty, is a defense to a claim for breach of contribtuory negligence as follows: defined Contributory negligence plaintiff is the failure of injury use reasonable care to to himself failure avoid damages proximate is a seeks cause the for which he to recover.” Instruction No. 6 question contributory negligence part “The on plaintiff guilty plaintiff is an issue in If this case. was negligence damage, proximately that his contributed to plaintiff though then cannot recover the defendant even may particu- implied warranty fitness for breached purpose.
lar by preponder- proving The defendant has the burden of negli- guilty ance of the such evidence that was gence.” jury returned a verdict White on breach of warranty claim.
Gregory appeals.
ISSUES2 As this cause must be reversed and remanded for a new trial, it is desirable that two of the three issues raised Gregory be considered:
ISSUE ONE entering judgment
Did trial court err in the evi- on against Gregory dence his on claim?
ISSUE TWO instructing
Did trial court commit reversible error Gregory’s part right damages would defeat his to recover due to White’s alleged breach of warranty? Gregory ONE,
As to ISSUE contends there ade- quate presented by support evidence him to reasonable admissibility opinion raises an issue as to the testimony relating Gregory’s speed, of Officer Titus which we need reach. *6 negligently
inference that wheel White the fifth installed assembly re-welding by faulty failing spacer by or to install negligence (or both), proxi- bars or that such U-bolts mately separation from the caused trailer’s tractor and damage resulting property therefrom. presented
White claims that no evidence was which would legitimate permit Gregory’s by jury a inference that acci- by negligent proximately any dent was installation caused assembly. require the fifth wheel inference To do so would an on an inference. TWO, Gregory
As to ISSUE contends negligence, broadly by the trial court in its instruc- defined tions, is not upon a defense to an action based breach of warranty, prejudiced he therefore and that adopted contributory instructions as an affirmative defense. negligence” position “contributory
White’s is term adequately type part a describes the conduct on the recovery, in a breach of action that will bar proper and the instructions were statement of the law. a DECISION ISSUE ONE presented
CONCLUSION—There was some evidence neg- support sufficient a reasonable inference of ligence by White and therefore the case should not have been jury. taken from the jury
It is often said that trial a court not direct should a verdict plaintiff’s for a defendant at the close of evidence
unless there total absence of evidence or reason able inference on at least one essential element a plaintiff’s (1967), Hendrix case. v. Harbelis 248 Ind. 619, 623, 315, 318; Borntrager N.E.2d Whitaker v. 734;
233 Ind. 122 N.E.2d v. Central Indiana Gas Ecoff App. 119, Co. 143 Ind. 238 N.E.2d Stivers Old National Bank Evansville App. 148 Ind. Bisig
N.E.2d Rouch App. 142, 147 Ind. N.E.2d 883. meager quantum necessary of evidence avoid verdict
directed
was described in Mamula v. Ford Motor
Company (1971),
App.
182-183,
150 Ind.
275 N.E.2d
849 at 851:
passing
“When
verdict,
on a motion for a directed
merely
court is
on to
if
called
determine
there is some evi
part
dence
on the
the defendant
which the
entitled to consider. Jones
Furlong (1951),
App. 279,
121 Ind.
might differ, negligence depends or if the determination of conflicting evidence, question on jury.” then the the (Emphasis supplied) Elgin, Hatmaker v. & Eastern Joliet Company Railway (1956), App. 566, 126 Ind. 133 N.E.2d 86; Heiny Pennsylvania Company (1943), Railroad 221 v. 367, 145; Department Ind. 47 N.E.2d Brothers Robertson 372, Stanley (1950), 809; Haney Store v. 228 Ind. 90 N.E.2d Meyer 663, (1966), App. 886; 139 Ind. Oliver 215 N.E.2d v. (1968), App. 499, Clemons’ Estate 142 Ind. N.E.2d 236 v. 72. subject quantum As the of avoidance of the of evidence necessary to depth avoid a directed verdict was treated in some pursue also, will Mamula we the matter further here. See 681, 620; (1972), App. Cheek Hamlin 150 Ind. 277 N.E.2d v. (1972), 59; App. 417, Fuller Wiles 151 Ind. 280 N.E.2d v. 783; (1972), App. 398, McClure v. Austin Ind. N.E.2d 152 283 Transportation Company (1972), Farmer Ind. v. Werner 152 861; 609, App. (1972), 284 Moster N.E.2d v. Bower Ind. 153 418; Indianapolis App. 158, & 286 N.E.2d Jones v. Power Light (1973), App. 676, 337; Co. Ind. 158 304 N.E.2d Miller (1974), 604, Ind. Griesel 261 308 N.E.2d damages to plaintiif’s proximately by the
For a
caused
defendant,
injuries
negligent
only
of a
act
the
need
be a natural
probable
thereof;
injurious
result
the
conse
quences
upon
which,
visited
must be those
light
circumstances,
the
reasonably
should
have
anticipated. See, Elder
foreseen or
v. Fisher
been
247
847; Hayes Freight Lines,
598,
Ind.
N.E.2d
Inc. Wilson
Realty
226 Ind.
77 N.E.2d
Rimeo
and Investment
Corp.
App.
LaViene
Ind.
50 N.E.2d
v
.
York
Railroad
Co. Cavinder
New
Central
App.
There was some evidence to damages proximately that his reasonable inference were caused by assembly securely the fifth failure install wheel White’s separated He testified the the tractor frame. trailer from highway, the truck while it in motion on the was as indicated inability vehicle, screaming tires, his the to control the gouges reasonably pavement. and the in the It could be separation breakage was inferred due to a the on assembly fifth which wheel had been welded and re-welded safety precautions required reasonable White or fastening installation additional devices which were not by White, employed or both. jury opened door
Had room been reasonably could concluded have from some evidence anticipated separation before it that White should assembly the fifth from tractor wheel frame. whole, as a there some
Viewed evidence part reasonably White could be inferred. *8 jury. question It was for the Failure to submit the a to the was reversible error. issue ISSUE TWO opinion contributory negli- is our
CONCLUSION—It gence is a defense to an as such not action for breach im- of warranty, Three, plied therefore Instructions and Five and Six were too broad. braving Lilliput like Gulliver the waters
Somewhat between capture enemy fleet, to the miniature we and Blefuscu have warranty” scour the “seas of been forced to to ascertain if may properly defense of be asserted warranty. in for breach of an action warranty relied The kind of on in his Third Complaint appear would in Amended sound contract as the alleged breach buyer. resulted from a sale seller between a and Privity present setting commonly in a encountered of principles Judge Hastings of contract law. Chief described concept warranty traditional Dagley Armstrong in Co., (7th 1965) Rubber 344 F.2d Cir. : concept warranty “The traditional is that the seller of product things expressly impliedly warrants and certain concerning buyer. product warranty This part buyer of the contract between seller thus has and and concept its basis in This contract law. traditional is not being superseded by concept requires new still privity of contract to be enforced.”3 warranty, In addition “traditional” another kind of “warranty” emerged years in recent which is not has con- sounding privity sidered as in contract and does not involve Hastings Judge parties. between the the “new” also described warranty Dagley: in concept warranty liability “The new bases strict liability very tort. This ‘is a kind different warranty and usually goods, those in the sale of found * * * subject rules to the various contract it [quoting grown up such sales.’ to surround Torts, 402A, 2d, Explanatory *9 Prosser, Torts, 95, p. see, (4th 1971) Law 3. Also § Ed. : of gradually regarded
“Thereafter the came to be as a term sale, express implied, of contract or of the for which the normal remedy is contract action.” (Burns Supp. provides 2-315 1974)] action an buyer against the seller for breach of allegation of particular purpose (which fitness for a Gregory’s Complaint). of providing While for an action for implied warranty fitness, breach of of neither the nor USA permissible UCC indicate the defenses to such an action. As states, Professor Prosser these statutes “Neither of anything been drawn with in mind a contract between but “buyer”.” Prosser, Torts, a “seller” his immediate Law of supra, p. Presumably only 655. then contract defenses are available.
So, guidance with Act no the Uniform Sales either or the Uniform available Commercial as to defenses Code warranty, a breach of traditional case we turn Indiana answer, law for an there none.
Appropriately jurisdictions we turn cases in other to the subject contributory have treated the warranty. Doing a defense so to an action for breach propels variously us into an which has been area “permeated problems”4 described as with and “a semantic question masquerades many costumes.”5 appear hopelessly
While cases confused in use familiar warranty, proximate cause, assump- such terms as risk, tion of contributory negligence, examination, a close particularly ones, emerging more recent indicates an pattern.” “consistent put Professor Prosser way this : very “It has been said often is never liability. a defense to the strict It has been said somewhat agreement, always more often that it is a defense. The dis- however, superficial is a language only, one of general merely part it is of the murk that has surrounded ‘warranty’. due sistent to, substance the cases is looked with If regard facts, they to their entirely into an con- fall pattern.” (Emphasis supplied) Prosser, Law of Torts, Supra, also, p. Prosser, 670. See The Fall leading authority ALR 501 at 3d 503—a in which cases on the subject have been assembled. Summers, 5. White & CODE, §11-17, UNIFORM COMMERCIAL (1st p. 1972). Ed.
251 (Strict Liability Citadel Consumer), To L. MINN. 50 791, (1966). REV. 838 This pattern” generalized “consistent is characterized a disapproval contributory negligence, sense, of as its broad a defense warranty privity, actions where is there no (i.e., Instead, warranty). breach of the new have the courts offered descriptions more types restrictive of of conduct which will bar relief. authorities,
Some including courts those cases in which nominally adopted contributory as a defense warranty suggest actions, that the defense is not based contributory negligence question all, actually at but plaintiff whether the has established the element of causa tion, i.e., injuries whether from the breach of resulted plaintiff’s or the proximate own conduct as the sole See, cause. g., Co., F.2d e. Dallison Sears Roebuck & 313 v. (10th 1962) 343 ; Cir. v. Johnson Bros. Radio & Erdman Co., 190, Television 8 744, Inc. 260 Md. 271 A.2d Rptr. 656; Murphy Eaton, Towne, Inc., U.C.C. 444 Yale & v. Michigan (6th 317 1971), (applying F.2d Cir. Rptr. 8 U.C.C. 805 aw) ; Co., Yards, Texsun Feed Inc. Ralston Purina l (5th 1971) Rptr. 210; 447 F.2d 660 Cir. 9 U.C.C. Coleman v. Florida, American App., Universal Inc. 264 Fla. Rptr. So.2d 10 U.C.C. Firestone Tire & Rubber Co. Transportation Ga.App. 471, Jackson Co. Rptr. also, S.E.2d 4 A.L.R. U.C.C. 311. See 3rd Summers, CODE, at White & UNIFORM COMMERCIAL supra, p. 336. delineating
Other authorities question have resolved the specific types plaintiff conduct which bar relief. The most plaintiff’s voluntary often referred to of these is a and un- relating encounter reasonable of a known risk to the defective product, form of passes conduct which more or less in- discriminately “assumption risk”, risk”, “incurred or passed aspect negligence: off as appears agreement, “There now virtual among be
authorities, permitted defendant should prove liability applied in a breach of strict as a defense to [as defect, discovered the action] danger possessed, wil- but nonetheless which it realized unreasonably proceeded conduct fully leading on a course (Emphasis supplied.) injury.” Bachner to his AR, Rptr. Pearson 8 U.C.C. also, See *11 Liability Prosser, Strict To Con The Fall the Citadel of “ sumer, [Recovery supra, p. will be if] not barred 838: failing only plaintiff in of the consists precautions danger take product or to in discover Noel, against possible . . . Products: its existence. Defective Assump Use, Contributory Negligence, and the Abnormal (1972) ; Risk, REV. Bronson tion 25 L. 93 VAND. of v. Virgin 1968), Comanche, (D.C. Islands 286 Inc. Club F.Supp. 21, [Citing Rptr. v. Johnson 4 A.L.R.3rd 501 5 694. U.C.C. ; Bros. Radio Television & at Erdman 510-511] Co., (1971), supra; v. Lake Motors 26 Utah2d Inc., Vernon 777; Lindsay 269, Rptr. Burkhimer v. B. Furni 9 W. U.C.C. 254, App. 834, (1971), 182 9 U.C.C. ture Co. 12 N. C. S.E.2d 1030; Co., Rptr. Inc. Huebert v. Federal Electric Pacific 545; 720, 1210, Rptr. (1972), Kan. 494 P.2d 10 U.C.C. 208 (1974), Equipment Hensley 33 Car Wash Co. Sherman 279, 146, Rptr. App. 14 Colo. P.2d U.C.C. 520 will
Also it established a be barred warranted, recovery misuse if he misuses the article such aspect being of or to as one assumed often referred liability context, this In strict incurred risk. a Konduris & Co. v. Paint Color Court Perfection spoke 681, 689, 106, 119, (1970), App. 258 Ind. N.E.2d 147 of misuse: legal description a ‘misuse’ “A those which constitute acts prob- product has achieve. The proven to be difficult to a failing between appears
lem to us to differentiate to be one of any defective product not exhibit misuse a which does misused, to be appear until or which does not condition dangerous, a unreasonably misuse defective and product dangerous unreasonably when defective brought by the consumer or is either discovered condition to either situation a warning. legally While his attention a sufficient being misused, product the former con- form category while the latter misuse the true stitutes
253 concepts of misuse is curred in- tantamount the traditional or (Emphasis supplied.) assumed risk.” may reasonably existing One conclude from case law that plaintiff claiming may breach of the new be by showing injuries (1)
defeated
his
were
solely by
conduct,
form,
caused
his own
in whatever
(2)
voluntarily
unreasonably proceeded
he
arising
encounter
known risk
out
or
defect
[assumed
(3)
product
question.
or
he
incurred
misused the
risk]6
analysis
may
From
reasonably
careful
of case
also
negligence by plain
concluded that all forms of
recovery. See,
tiff
do
defeat his
Schneider v. Suhrmann
822;
(1958),
2d
P.2d
Utah
. LaSalle Coca
Barefieldv
Bottling
Cola
Co.
Mich.
120 N.W.2d
Bros.,
Lee
App.2d 568,
Inc.
209 Cal.
26 Cal.
Kassouf
Rptr. 276;
Chapman,
1962);
(9th
Brown v.
106
Div.
94 N.Y.S.
Natale v.
Cola Co.
(1959),
282,
App.
7
494;
Div.2d
182 N.Y.S.2d
Rasmus v. A. O.
Corp.,
F.Supp.
(D.C.
Smith
1958) ;
158
70
Iowa
Fredendall v.
Straus,
Abraham &
(1938),
11;
Inc.
279 N.Y.
18 N.E.2d
Young
Co.,
(9th
v. Aeroil
1957)
Products
248
;
F.2d 185
Cir.
Restaurant,
Arnaud’s
Inc. v. Cotter
(5th
Pacific supra. Equip. Co., justify existing does
Having case law reasoned that action negligence to an contributory defense as a assertion of pro- warranty, examine we now new breach of traditional for breach of in an action priety defense of such a sparse. to be lav/ warranty the case . . . and find directly produced which has only our research case negligence a de- contributory is not defense holds warranty traditional an action for breach seller to fendant (D.V.I. F.Supp. Inc., Comanche, Bronson Club eating poisonous fish buyer ill became 1968). Plaintiff Rejecting con- defendant’s restaurant. defense of at the negligence, tributory the court said: negli- upon liability “It is that since the is not based clear liability owner, gence based rather a strict the restaurant but is implies, upon which fitness contributory negligence is as a when not available defense negligence merely discover in the failure to consists such the hand, the form product. On other defect voluntarily contributory which consists in danger, unreasonably proceeding to encounter a known assumption risk, may commonly which is called liability of strict such this.” in a case a defense supplied.) (Emphasis F.Supp. at 23. any authority gives reason to nor The court neither cites speculate only it has support conclusion we can its Judge Hastings law”, described “its basis in contract supra. Co., Armstrong Dagley Rubber by way accept the are other cases dicta There defense as such is not a principle that See, privity action where exists. to a breach *13 Room, 421, Ship Tea Inc. Blue 347 Mass. Webster v. supra; 309; Sears, Co., & Dallison Roebuck N.E.2d 198 v. 334, Mfg. Co., App. 93 Ill. Brown 2d 236 N.E.2d Williams v. App. Stapley 122, Miller Ariz 430 125; Co. v. S.O. Tiffany (1970), Inn, App., 701; Inc. v. Tex. Civ. Pizza P.2d Pharmacy Gipson, App. Jacobs Co. 116 Ga. 454 S.W.2d Bros., S.E.2d Brockett Harrell Inc. 206 Va. 143 S.E.2d 897.
To rest negli- a contributory decision that the defense of gence may not be asserted in an action for of tradi- breach warranty tional ground the sole warranty on that its has basis in rely contract law would on slender a reed indeed. If dangerous for no other reason to do so would be because position authority many there is warranty for the has as of its roots in tort as it does See, in contract law. example, Prosser, Torts, supra, Law pp. 616-17, 634-35: contract,
“Unlike other elements of warranty never has original entirely lost its character.” tort also, See Nelson Anderson Minn. 72 N.W.2d
Interestingly, Restatement, the framers of 402A of Second Torts, imposing liability strict seller defective products, “warranty” thereby entirely, eliminated the word adopting a concept. more immaculate and usable Whether term new eliminated or whether it is in its used concept liability tort, as a basis for strict most courts have concluded, contributory reasonably usually implication, negligence traditionally defined law is too broad a defense to in a assert breach of action. Restatement, Torts,
Section 402A of explicitly Second negligence contributory strikes down (n) Comment : “Contributory negligence when such is not a defense merely consists of a failure to discover product, guard against of the or possibility defect hand, existence. its On other the form of voluntarily which consists in unreasonably proceeding to encounter danger, a known and commonly passes assumption risk, under the name of defense under this as in Section other cases liability. of strict If the the user or consumer discovers the defect and is aware danger, proceeds and nevertheless unreasonably to make use injured product by it, and is of the he is re- barred from covery.” (Emphasis supplied.) prepared completely We are eliminate the distinction *14 256 warranty “new” concept and traditional of
between the successor, warranty. Act and its The Uniform Sales buyer Code, and cast in terms of are Uniform Commercial seller.
Logic if the defense of dictate would the kind for breach of in action is available an referred to as we have privity—tort—warranty of—no de warranty, available as a less it be then even should new seller—contract—privity— buyer for breach of fense warranty. Breach warranty traditional kind called liability. grounded strict Bachner is in either case supra; Inc., Comanche, Pearson, supra; Bronson v. Club v. Co., supra; Equipment Har Hensley Wash Car v. Sherman Agency, (1966) 70 Capital Inc. alampopoulos News v. The supra; Chapman 17, Brown v. App.2d 217 N.E.2d Ill. Equipment Greeno Clark supra; v. Tiffany, Inn, Inc. Pizza ; 1965) Howart (N.D. Bevard Ind. Co., F.Supp. 427 237 1202, 96, Inc., Co., App. 433 F.2d D.C. 140 U.S. Concrete Wright-Bachman, 1970) Inc. ; (D.C. Rptr. 966 Cir U.C.C. N.E.2d 713. Hodnett, Ind. et al. “warranty” accepted a “curious logic fortified if Such contract”—per Prosser. hybrid ... of tort and liability supported in strict actions Limitation defenses warranty. involving the new cases—both two Indiana Searjeant Prdcts. 147 Ind. Motor In Cornette v. Judge recognized Hoffman assumed App. 258 N.E.2d adopted liability defense strict risk as a or incurred Torts, 402A, Restatement, as the most desirable Second § Indiana. adoption in for Konduris, supra, Paint & Color Co. v. in And Perfection contributory negligence rejected as a defense: this Court failing plaintiff in discover “Contributory against guard product or on failure in the defect product is, misuse is not defect existence liability tort.” to strict therefore, not a defense warranty, having murky seas we sail set on the And so port action convinced long arrive home last at breach of the defense of traditional contributory negligence Only as such is not available. *15 specific misconduct, more plaintiff’s such as forms of assumption may of risk product, of the and misuse be relied by upon by the way defendant of defense.
Consequently, repeatedly Instructions 5 and 6 which emphasized broadly as and defined constituting a defense to an action for of an breach warranty, defective,7 judgment are the trial court’s should also be reversed for this reason. judgment of the trial court is therefore reversed and trial, proceedings
remanded for a new for further not opinion. inconsistent with this
Garrard, concurs; Sullivan, J., P.J., only in concurs result as to ISSUE ONE with statement concurs ISSUE as to TWO.
Concurring
Statement
by
P.J.
I concur in the result
reached
the
Sullivan,
majority
agree
as to Issue I but cannot
that a directed verdict
may
be avoided
“some” evidence
“some”
sense that
“any”.
means
Company (1971),
See Mamula
Motor
v. Ford
App. 179,
(dissenting
150 Ind.
opinion)
N.E.2d
at 854.
agree
I
upon
am able to
record,
evidence of
matter of defendant’s
proximate
as a
cause of
Gregory’s damage should
have been
but
submitted
agree
I am able to
with little of what the
as
majority states
scope
7. The
of the instructions must be confined to the issues before
clearly
giving
unless
the record
Court
shows that
of the in-
prejudicial
struction was harmless. Otherwise
it will be considered
error:
propriety
determined,
“The
of an
instruction
whether
given
it
upon
a correct
embodies
statement of the
facts,
state of
correctly
but whether
states
the law relevant
to issuable
facts
given in
the evidence
the trial.” N.Y. Central Railroad.
Co. Knoll
App. 264,
220;
Underwriters,
140 Ind.
206 N.E.2d
Automobile
App. 332,
Inc. v. Smith
Adams
126 Ind.
133 N.E.2d
Stillwell
App. 495,
135 Ind.
193 N.E.2d
Callahan
Y.
v. N.
App. 232,
Central Railroad Co.
134 Ind.
I Issue II. opinion concur v. State of Indiana. Gerald R. Puckett February 20, Filed 1975.] [No. 2-574A108. *16 Choate, Indianapolis, appellant. for
Belle T. Duckivall, Attorney General, Philip Sendak, L. G. Theodore Attorney General, appellee. Deputy Summary
Case The Defendant-Appellant Puckett J. Gerald R. Buchanan, convicting judgment appeals him of (Puckett) trial court marijuana, claiming insufficient evi possession unlawful dence. affirm.
We Notes Com Restatement § c, (Emphasis supplied.) at 253. ment F.2d at 349.]” Prosser differently Professor sees somewhat in that he hybrid conceives the new as “a curious born of contract, unique tort the illicit intercourse in the law”. Prosser, supra, p. Torts, Law Of Whatever the admixture tort new contract in the warranty, ostensibly warranty. concern our is with traditional Gregory’s privity claim arose in 1964 parties between with each other and at time when the Uniform Sales Act (Burns was in effect Indiana. Ann. Stat. 58-115 [Ind. § USA, successor, Repl.)]. The like its The Uniform Code, 1971, 26-1-2-315, Commercial Ind. 19- [IC Ann. Stat. §