*1 COMPANY, Appellant, HEIL al., Appellees.

Valmarie GRANT et

No. 872. Texas, Appeals of Civil

Court Tyler.

Jan. 1976.

Rehearing March Denied

919 *3 Dallas,

Windle Turley, Perry, Franklin H. Coe, Thompson, Irons, Dallas, Cousins & appellees.

DUNAGAN, Chief Justice. This a products liability case which involves doctrines of assumption of risk misuse, the “Dead Man’s” Statute and exemplary damages. Valmarie Grant and her children sued for the death James *4 n (hereinafter Grant Decedent), referred to as their husband and father respectively. The defendant-appellant is the Heil Company, major hydraulic manufacturer of hoists. Decedent was killed on February assisting brother, while his Vernon Grant, making repairs on Vernon Grant’s dump truck. dump The truck was equipped with a telescopic designed sleeve hoist sold by the for purpose raising the bed of the truck. The hoist operated by a consisting mechanism basical- ly of a control valve with levers inside the cab, hydraulic pump and a partially ex- posed “pullout” cable which length- runs wise beneath injection the bed. The of oil into telescopic sleeve raises the bed pullout until the cable becomes taunt and pulls a valve assembly control into a position. neutral The bed is lowered pushing the valve into position. another normally This is accomplished with the levers inside the cab but can occur when the exposed portion of pullout cable is struck.

Decedent and Vernon were working be- neath the bed raised when it somehow de- scended. jumped away Vernon but Dece- dent did not. Heil Company’s engineer found no malfunction in the hoist mecha- nism and pullout concluded that the cable tripped. had been Immediately before the accident, Vernon told Decedent that if he cable, hit the pullout the bed would come down. This testimony of Vernon’s Jr., Rowe, Gardere, Gordon H. & was preserved appellant’s excep- Porter bill Dallas, DeHay, appellant. tion as it was excluded under the Dead bill, pany’s primary contention before this Vernon court this same In Man’s Statute. of Vernon normally work is that the exclusion Grant’s tes- would not that he

testified was harmful error because that bracing timony it tes- bed without the raised under timony had at was admissible and established or which he some wooden blocks with raised fact issues of those defenses. Plain- home. (1) respond tiffs even if the exclusion Company under a the Heil Plaintiffs sued erroneous, harmful, (2) it was not design defective liability for

theory of strict properly ex- Vernon Grant’s failure to and for the hoist mechanism We will discuss these contentions cluded. that, alleged hazard. Plaintiffs warn of the by plaintiffs. in the order set forth result of the proximate as a direct Grant, they had death of James wrongful OF ASSUMPTION RISK guidance and support, a loss of his suffered Reply Plaintiffs’ Point I is that sought recov- They further companionship. could of risk issue of resulting from anguish mental ery for their jury to the even have been submitted if their arrival at the their observations testimony had not been ex Vernon Grant’s Fi- immediately after the accident. scene arguments point under this cluded. form of sought recovery in the nally, they threefold. Plaintiffs first contend that are *5 The Heil exemplary damages. necessary raised the elements “no evidence and im- affirmative defenses answered with theory risk.”1 The of the assumption of of seeking contribution Vernon Grant pleaded person risk defense is that a assumption of in- Vernon’s motion for indemnity. injury recover for an received may not was sustained. verdict structed voluntarily exposes himself to a when he causes producing that the jury The found appreciated danger. Halepeska known and (1) pullout the cable the death were: Interests, Inc., of 371 v. Callihan S.W.2d it defectively designed because which was The of assumed (Tex.1963). 379 doctrine warnings by adequate accompanied not Ellis risk is harsh and will not be extended. 3); (2) through 1 the control Issues (Special Moore, (Tex.1966). 794 valve, defectively designed for which was of one or Clearly, if there was no evidence through (Special Issues 4 doctrine, same reason any the of the more of the elements supply to a 6); (3) Company’s Heil failure excluding portions the of Vernon error in 10); (4) Heil 7 and (Special Issues relating brace thereto was testimony Grant’s bracing in- provide failure Company’s harmless. 10). The Issues 8 and (Special

structions that Vernon Grant’s Plaintiffs contend to these find- pursuant damages awarded (“I . Decedent stated warning to subsequently. discussed ings will be cable, come the would that if he hit the bed evidence that De- down”) did not constitute evi- Company pleaded, offered The argue the risk. Plaintiffs cedent “knew” of Issues on requested Special of and dence heard, might not have under- that Decedent mis- assumption of risk and of the defenses warning that the stood or remembered court, Dead applying the The trial use. merely evi- testimony Grant’s Vernon of Statute, excluded Man’s have known of that Decedent could dence which related to Grant’s Vernon the risk. Spe- to submit and refused defenses those knowledge of injured person’s An was no other since there thereon cial Issues or defect is measured dangerous a condition issues. Heil Com- support such evidence Calvert, (Tex. 1975); contention, Evi- 794 “No determining must S.W.2d we this In light Points most favor- Evidence” evidence in the and “Insufficient review the dence” (1960). Garza, Error, 364 38 Texas L.Rev. 530 of issue. Rourke v. able to that e., actual, Decedent did not subjectively; person’s danger know of the be i. hear, did not knowledge. cause he understand or re

conscious Massman-Johnson Gundolf; warning, member we are not (Tex.1972). the able to'j law, say, as a matter of he person did not I injured The fact the should s danger. know of that danger support have known of the will not Halepeska the of risk defense. that even Interests, Inc., if Dece

v. Callihan Some rt i dent of knowledge danger, had some times, however, there person may know such is no he evidence that knew of the charged specific f knowledge to be with

facts as defect involved. Knowledge general danger. Halepeska the Inter v. Callihan Í hazard involved in operating ests, Inc., punch-press supra. This standard would be machine will support the assumption of applied impossible when it was difficult or risk defense. Rhoads v. Service Machine injured per state determine the Go., F.Supp. (E.D.Ark.1971). The mind; son’s as it was in the instant case of general hazard instant case was injury. knowledge a fatal The or “actual working beneath the raised bed of the knowledge” charged applied test has been dump truck. Vernon Grant and Heil Com determining the strict liability sup p pany’s engineer both concluded that bed products. of defective See Rourke v. lier the pullout descended because cable was Garza, 530 (tex.1975). S.W.2d 794 tripped. This evidence indicates that Rourke case held that an knowl employer’s specific danger that striking pull edge defect in a product would not out cable would cause the bed to descend. discharge the duty supplier’s to warn the that, jury, consideration of Vernon injured However, employee. case did Grant’s testimony, could have found that not hold that the assumption of risk defense Decedent knew of this specific hazard. would be unavailable to the supplier if the *6 Plaintiffs also contend that the requisite injured employee had been warned. The knowledge must be of a “defect” that and injured person risk, was of warned the but “knowledge phenomenon that a will occur risk, held not to have assumed that product a ... knowledge is not v. Messick General Corp., Motors 460 F.2d that the product dangerously is defective.” (5th 1972). However, Cir. person’s that rely upon word, Plaintiffs the of use the “knowledge” of .the undisputed risk was “defect,” in Co., Henderson v. Ford Motor the holding upon based finding a ^ supra, clear, 519 S.W.2d at 89. It is how- voluntary that the encounter of the known ever, assumption that the of risk is defense and appreciated risk was “reasonable.” premised upon knowledge of the This insertion of an “unreasonability” ele dangerous of a product condition ment into assumption the of risk doctrine rather than recognition of its defectiveness. See: Henderson expressly disapproved in Henderson v. 91; at Hillman- Co.,

Ford Motor 87, (Tex. 519 S.W.2d Kelley Pittman, supra, 693, v. 489 S.W.2d at 1974). Ball,

and J. Corporation & W. v. 414 S.W.2d injured an person actually Whether knew (Tex.1967). danger peculiarly prov

of the is within the ince the jury. Hillman-Kelley of v. Pitt argue Plaintiffs that even if Dece man, 489 S.W.2d 692 (Tex.Civ.App. dent danger knew of the pullout of the —El h.). Here, Paso n. w. cable, there was some there is no evidence that he knew of jury evidence from which the defects, could have the dangerous other to-wit: the danger, valve; that of found Decedent “knew” the designed defectively control the fail the that brace; to-wit: fact he had been told of supply support ure to and the hitting the pullout effect of the cable. Al pro failure to instruct as to proper bracing though jury the could have also found cedures. These may defects well have been operated dump truck probably causes of the death would not proximate or

producing defects, appreciate the looking the the death hazard from at the (1) but for in that occurred, engineer hoist mechanism. Heil (2) Company’s the death have might not testified that he had been involved in the of the defects. result was a foreseeable industry years hoist for 4 Theatres, before he became Rutledge, Inc. East Texas completely aware that a dump bed would opinion, (Tex.1970). In our pullout descend when the cable was struck. however, producing causes all of the above danger. The as- the same part were There is some evidence that Decedent is based the of risk defense sumption might not have appreciated danger the danger of awareness of the injured person’s However, hitting pullout by the cable. rea- pro- the an awareness of injury rather than information, son of Decedent’s age and ex- injury. Since there ducing causes of we perience, conclude that there was some Decedent knew of evidence that was some probative evidence of force that he ap- did hitting pullout danger in specific Thus, preciate danger. an issue for merit. cable, argument is without plaintiffs’ jury exists. must be danger encountered point final in support Plaintiffs’ of their appreciated to raise known and both necessary contention of no evidence of the Moore, defense. Ellis v. assumption of risk elements of the of risk defense subjective. Mass supra. Again, the test is that Decedent’s encounter of the risk was Gundolf, supra. We look man-Johnson voluntary. not shown to have been A vol- actually that Decedent for some evidence untary by encounter means free intelli- possession the risk or was in appreciated Co., gent choice. Henderson v. Ford Motor legally would be from which he facts danger. of the appreciation with charged as follows: there Interests, Inc., supra, Halepeska v. Callihan was no evidence that Decedent did not for- age, or at 379. If reason get warning; there was no evi- information, intelligence experience, lack of tripping pullout dence that the cable not understand judgment, Decedent did

or accidental; was not that Decedent chose to involved, taken to he will be risk the risk in the face of encounter unreason- Restatement risk. assumed have alternatives; able or that Decedent was 496D, Torts, comment c. (Second) of Section *7 exercising legal right a when he encoun- thoroughly tered the We have con- danger. 53 approximately Decedent arguments sidered each of these and find accident. His the time of the old at years them be without' merit. We conclude the 5th or stopped had at formal education that there was some evidence would that had been to a trade or grade but he 6th support jury finding a that Decedent’s en- sergeant a He had been mechanical school. by counter with the risk was free and intel- previously army. Decedent had in the ligent choice. moving living building airplanes, amade work. He doing construction houses and second contention under Plaintiffs’ upon Vernon previously worked had not any I is that error in Reply their Point dump truck. Grant’s excluding testimony the of Vernon Grant Decedent, after assumption which related to of risk was Plaintiffs warning, might inapplica is Vernon Grant’s harmless because that defense hearing liability upon would descend based the bed ble when strict is thought have dangerous released. Plain- failure to warn of a condition. the cable was only until rely upon statements to the ef that a construction expert testified tiffs’ the duty fect that when there is a breach of owned or previously who had not laborer

923 warn, assumption there is no of the be applicable in any case when strict liabili- risk. See: v. McGlanahan California-Spray ty is based the design defective of a Corp., Chemical 194 75 Va. S.E.2d product. The of assumption defense of risk (1953); Wright Products, Inc., 725 v. Carter was held available in such a case in Rourke (2d 1957); Keeton, 244 F.2d 60 Cir. R. Garza, v. supra, 530 S.W.2d Plaintiffs’ Assumption of Risk in Products Liability contention is overruled. Cases, (1961). La.L.Rev. These statements were made in situations

which no warning given been had to the MISUSE injured person. The function of the warn The Heil Company contends that it

ing give is to was a person knowledge and an misuse of the truck to work opportunity to appreciate the between the danger. Ellis bed Moore, and the supra, v. chassis while the at 793. bed was in a S.W.2d supplier raised position of a defective product is and was usually Appel- blocked. position

the best lees’ supply Reply that, this warning but Point II is even considering is there no reason the the why warning portions cannot excluded of Vernon Grant’s come from another source. “One who testimony, vol there was no evidence of misuse untarily chooses to and, use chattel with a therefore, no harmful error in exclud- complete realization, regardless of how it ing those portions of his relating acquired, of the risks to which he thus thereto. exposes voluntarily himself assumes such ” . risks . . & Bailey, Hursh Ameri Suppliers products are not li 2d, can Law of Liability Products sec. 2:107 injuries able for resulting from the abnor (Emphasis added.) The issue of assumption^ y mal use of product. Restatement of risk was held to have been properl (Second) Torts, 402A, Section comment h. submitted, even the though jury found that The misuse has defense been adopted in supplier product the of a defective had Garza, Texas. See supra, Rourke to warn injured failed user of the dan “misused” is not product 794. A S.W.2d ger, Pittman, Hillman-Kelley supra, that it intended supplier merely because at 692. We hold that since manner; supplier used in a different be may Vernon Grant have warned Decedent which caused use show that must danger, of the the jury’s finding of Heil Otis reasonably foreseeable. was not injury Company’s failure to so did do not render 324, 329 Wood, 436 S.W.2d v.Co. Elevator of risk defense recogni inapplicable.J Company’s The Heil (Tex.1968). “intended inapplicability tion argument Plaintiffs’ final under request its from apparent use” standard Reply Point I is that error in any excluding “. Special Instruction for a evidence of assumption of risk was harm a use which means ‘misuse’ the term

less because that is inapplicable defense *8 reasonably or by expected reasonably not strict liability upon when is based the defec Heil Com Defendant to the foreseeable design product being tive of a used in a pany.” reasonably manner the sup foreseeable to plier. argue Plaintiffs that the supplier is position

in the best Plaintiffs contend that design to discover a the misuse permitted by defense was negated defect and should not be to avoid evidence which liability ground injured on the that the showed that the Company Heil could and made a did person judgment foolish to encoun foresee Decedent’s use of the truck. the danger. argu

ter The thrust of this This contention misconceives the scope of ment is that of risk our should not review of a point “no evidence” since 924 2However, spouse, parents they children and for losses evidence. ignore such

we must the Norman pro by of sustained reason of death. any evidence unable to find we are Co., 1065, working indicating Valley that be Gin 99 S.W.2d force bative 1936, ref’d). bracing it was writ (Tex.Civ.App. without raised bed neath the —Beaumont tes permits recovery use. Vernon Grant’s for The Survival Statute an unforeseeable to the light most favorable Lan- timony, damages by in the sustained the decedent. defense, merely Co., 33, the misuse v. B. F.

establishment ders Goodrich to be he considered (Tex.1963). statute is so named be- showed This use. Abnormal and abnormal dangerous action for provides cause it that causes of necessarily unforeseeable. are injuries resulting uses in death shall not abate that he would Vernon Grant’s by reason of the death but shall survive to work raised bed before normally the brace legal representatives the heirs and that such a was not evidence it ing beneath The Man’s decedent’s estate. Dead Statute We reasonably foreseeable. was not use inapplicable has been held in actions excluding this any error conclude Wrongful Death Act brought under the harmless un testimony was of his rights inherited from the rather than for 434; we now determine Tex.R.Civ.P. der Canales v. Bank of Califor- decedent. See of that testi the exclusion propriety nia, (Tex.Civ.App. 318-319 316 S.W.2d the as have established which could mony n.r.e.); Wallace —Eastland writ ref’d risk defense. sumption of Stevens, (1889). 74 Tex. S.W. respond that the Dead Man’s Plaintiffs MAN’s STATUTE

THE DEAD because, applicable seeking Statute exemplary damages, they acted as the heirs Dead contends legal representative of Decedent. inapplicable because Man’s Statute3 that Decedent’s children Plaintiffs own recovery only in their sought Plaintiffs capacity obtained their to invoke the Dead was not ren- judgment and therefore right by suing exemplary for dam- Man’s Statute heirs or them as the against for or dered and that ages under the Texas Constitution The ar- of Decedent. representative legal capacity obtained that Decedent’s widow compensa- for pleadings is that gument by seeking ex- under the Survival Statute by guidance support for the loss tion emplary damages. ex- and for Decedent, anguish mental for action a cause of damages up set emplary that their claim point out but did not Death Act4 Wrongful under the damages way was in no de exemplary the Survival action under a cause of up set in the upon provision therefor pendent Statute.5 ulti Wrongful Death Act but based per “Every per mately Act Constitution. Wrongful Death son, company, may surviving corporation, or recovery by a decedent’s mits contention, testify against any determining we must transac- this the others as In light testator, with, most favor- by, in the the evidence in- review tion or statement ward, Rourke v. Gar- testify issue of misuse. to the able unless called to testate or 794; Calvert, za, supra, by pro- ‘‘No opposite party; and the thereto Evidence” Evidence” ‘‘Insufficient to and of this article shall extend visions Error, 38 Texas L.Rev. Points against or the heirs or include all actions (1960). arising representatives legal decedent of a any *9 such decedent.” of transaction with out art. Tex.Rev.Civ.Stat.Ann. executors, against by ad- or actions arts. 4671—4678. “In 4. Tex.Rev.Civ.Stat.Ann. ministrators, judg- guardians, in which or against may them for or be rendered ment art. 5525. 5. Tex.Rev.Civ.Stat.Ann. such, party to shall be allowed neither as homicide, act, through longing commit a willful or to the statutory beneficiaries.

omission, gross neglect, Moreover, responsi- or shall be the Legislature would be without ble, damages, exemplary surviving to the authority expand to people class of enti- widow, husband, body heirs of his or her tled to recover exemplary damages for Tex.Const, . .” art. XVI section 26 wrongful death to include the decedent’s (emphasis added). exemplary legal Recoveries of representative. Scoggins v. South- damages wrongful death Co., cases are limit- western Electric supra. Service We people ed to that class of set forth in the conclude that the claim exemplary for dam- provision. Scoggins ages constitutional v. South- by plaintiffs did not invoke the Dead Co., western Electric Service Man’s Statute. (Tex.Civ.App.—Tyler writ n.r.e.). judg-

ref d Plaintiffs conclude that Plaintiffs next argue they recovery exemplary sought ment for the dam- recovery for Decedent’s conscious necessarily ages pain rendered for the chil- suffering, and a cause of action under application Statute, dren as heirs. of the Dead the Survival thereby and invoked Statute, however, depends upon Man’s the Dead Man’s Statute. Plaintiffs admit whether Decedent’s children they recovered plead did not this cause of action damages right these in their own or inherit- but contend that the Heil Company waived right ed that from Decedent. Wallace v. this pleading by defect failing object to to Stevens, supra. The fact that a decedent’s the introduction of testimony raising this may heirs recover exemplary damages does issue. The testimony question was that right not establish this belonging as one of Decedent’s widow and two of his chil and inherited from the Although decedent. dren. Mrs. Grant testified that she could the derivation of the right to recover exem- hear Decedent breathing heavily when she plary damages wrongful for death was not ran dump Grant, Jr., to the truck. James discussed, a widow and her children did not Jerry Grant testified as to Decedent’s invoke the Dead Man’s suing Statute when expressions movements and by observed damages for such Stevens, in Wallace v. pinned them when he was beneath the dump however, bed. testimony, This purpose showing

offered urge that anguish Decedent’s mental of the witnesses rather than prosecuted widow her claim for exemplary Decedent’s pain suffering. pur This damages legal representative as his under pose by subsequent indicated testimo the Survival Statute. Their ny contention that hysteria of these witnesses about the cause of action for exemplary damages upsetting pictures mental of the accident.

belonged to Decedent himself contention, relies Contrary plaintiffs’ Houston-American Life Insurance Co. v. Company object testimony did about De Tate, 649 (Tex.Civ.App.— ground pain cedent’s on the the suit 1962, n.w.h.). Waco case, however, In that brought had Wrongful been under the exemplary damages were based on un on Death Act and not behalf of the estate reasonable collection objection efforts and the court pain. for Decedent’s That held Legislature that the had not excluded when Plaintiffs responded overruled such a cause of action from the Survival related to the state of mind recovery exemplary Statute. The dam opinion of the witness. We are of the ages for wrongful surviving death plaintiffs recovery did not seek for Dece spouse provid and heirs expressly pain. has been dent’s

ed for in Tex.Const. art. XVI section 26 and art. 4673. The inclu they

Tex.Rev.Civ.Stat.Ann. Plaintiffs contend that even if Wrong sion of such a in the did not cause of action advance a cause of action as the ful legal representative Decedent, Death Act indicates that it is one be- heirs and

926 Co., 109,

the Dead Man’s v. Jewel Tea applicable. Ill.App.2d Statute was still 116 253 (1969) 288, They judgment that the which was N.E.2d 636 aff’d 46 I11.2d (1970); bars to sue N.E.2d 103 v. Man ability rendered their future Drake Wham-0 Co., Company ufacturing (E.D.Wis. as legal representa- F.Supp. Heil heirs and 1974). case, and, therefore, In the court held against tive latter was rendered exemplary were available in a damages such. them as liability products action for death user; the court that Wisconsin law judgment noted wrongful The in a death availability damages ties the to punitive subsequent action does not necessarily bar a proved the facts the formal rather than suit on behalf of the estate. Landers v. B. v. theory alleged. Drake recovery Go., light

F. Goodrich In of our Co., Manufacturing supra, Wham-0 at to decision reverse case for and remand this damages in Exemplary were not allowed trial, plaintiffs a new clearly are not barred products of Kritser liability suit asserting any from applicable cause of ac (5th Beech Aircraft F.2d 1089 Corp., 479 previously tion omitted. 1973). However, indicated

Cir. the court damages have been availa that such would argument Plaintiffs’ final for the if the under the ble Texas Constitution applicability of Dead Man’s Statute is XVI, 26 had elements of Article section on the premised assumption that this action Corp., Kritser v. Beech Aircraft existed. e., in prosecuted capacity; a dual i. ex supra, at 1097. We believe plaintiffs could invoke the Dead Man’s under damages may be recovered emplary in one capacity while in Statute the other provision of the Texas Constitution they capacity, could We are unable not. the death of liability strict action for a any judgment discover capacity in which product. of a defective user rendered'for or against plaintiffs as the legal representative or heirs of Decedent. a verdict The trial court instructed We conclude that the trial court erred in Company’s on Heil favor of Vernon Grant excluding portions of Vernon Grant’s testi and/or him contribution against claim for mony under the Dead Man’s Statute. Company Heil contends indemnity. force probative some evidence of

there was The trial judgment in court’s favor duty of care a that Vernon Grant breached of Decedent’s re widow and children is to work by permitting him Decedent versed and that remanded for cause is a a without brace. the raised bed beneath new trial. With exception, one Heil Com neg were if Grant Even Vernon pany’s remaining points relating of error Decedent, towards ligent judgment this have either and/or in recover contribution could waived at argument been oral or made test of its co-tortfeasor. demnity from moot this Company’s decision. The Heil shifted from one loss should be whether contention that damages are not exemplary the one is to consider to another tortfeasor liability recoverable in a suit products strict tort; Then, suing the other plaintiff as a wrongful death should be answered to plaintiff, as whether such one determine guide the trial court in the event another wrong against third although guilty of trial of this cause. to recover nonetheless entitled person,

Exemplary damages may Gulf, be & co-tortfeasor. C. S.F. against his recovered wrongful resulting (Tex.1963); for a a will Bliss, death from Ry. v. gross negligence.

ful act or 147 Tex. Pope, omission or Co. Road Austin (1949). art. dam Vernon Grant’s Tex.Const. XVI section 26. These and not to the Heil liability been ran to Decedent ages products duty have allowed in in- court Company. properly The trial jurisdictions. in other Moore actions See: *11 in and that a verdict his favor strueted is affirmed. judgment BANK, NATIONAL FROST Appellant, corporation, re- part in and reversed and

Affirmed part. in

manded BARRERA, NICHOLAS AND a Profes- ON MOTION FOR REHEARING Corporation, Appellee. sional for Par- Company, The Heil its Motion No. 909. Rehearing, complains of this court’s af- tial Texas, Court Appeals in favor of Civil of the verdict instructed firmance Tyler. Company Vernon The Heil as- Grant. holding error in the that it could not serts Feb. from

recover contribution Vernon Grant 1,1976. April Denied Rehearing negligent if he were towards Dece- even regarding We dent. have reviewed law indemnity and remain con-

contribution judgment. of the correctness of our

vinced

Article Tex.Rev.Civ.Stat.

Ann., permits among enforced contribution delicto,

joint who are in but pari tortfeasors abrogate

does common law rule as rights wrongdoers are not who

pari Pope, delicto. Austin Road su Co. v.

pra. joint equally When tortfeasors are not

guilty, although are to a both liable third

person, as between themselves the blame should indemnity.

less be allowed Austin Pope, supra.

Road Co. v. Joint tortfeasors not in pari

are delicto when the injury duty

resulted from a violation of the one

owes the Pope, other. Austin Road v.Co.

Even if negligent Vernon Grant were

permitting Decedent work beneath the brace,

raised bed without a the death re-

sulted, part, at least in from the defective

design of the hoist mechanism. This defec- design

tive constituted a the Heil breach of

Company’s duty to both Grant and Vernon Thus, joint

Decedent. as between tort-

feasors, Vernon would been en- Grant have from indemnity

titled the Heil would been not have liable to

Company for contribution. respectfully

The Motion is overruled.