Judge, entered judgment in favor of plaintiff, and defendants appealed. The Court of Appeals, Wisdom, Circuit Judge, held that danger from inhaling asbestos dust was not, as a matter of law, sufficiently obvious to asbestos insulation workers to relieve manufacturers of duty to warn, that defendants, each of whom was cause in fact of some injury to plaintiff, could be held jointly and severally liable for total damages, under Texas law, and that plaintiff was entitled to go to jury with question whether his consent to incur risk was voluntary or was product of duress of circumstances and unreasonable, under Texas law.

Where federal jurisdiction is based on diversity of citizenship, substantive law of forum state controls.

2. Products Liability 8

Sales 427

Under Texas law, a manufacturer of a defective product may be liable to a user or consumer in either warranty or tort.

3. Products Liability 8

Under Texas law, one who sells any product in a defective condition unreasonably dangerous to the user or consumer is subject to liability for physical harm thereby caused to the ultimate consumer or user.

For a product to be unreasonably dangerous, it must be so dangerous that a reasonable man would not sell the product if he knew the risk involved.

A seller is under a duty to warn of only those dangers that are reasonably foreseeable.

Even when a balancing of product's utility against its known or foreseeable danger leads to conclusion that marketing of product is justified, seller still has a responsibility to inform user or consumer of risk of harm, and failure to give adequate warnings in these circumstances renders the product unreasonably dangerous.

7. Product Liability 9

In products liability cases involving scope of manufacturer's duty to warn of dangers associated with use of product, manufacturer is held to knowledge and skill of an expert.

Manufacturer's status as an expert, with respect to scope of its duty to warn of dangers associated with its product, means that a minimum manufacturer must keep abreast of scientific knowledge, discoveries, and advances and is presumed to know what is imparted thereby.

A manufacturer has a duty to test and inspect its product.

A product must not be made available to public without disclosure of those dangers that the application of reasonable foresight would reveal.

11. Products Liability 75

A manufacturer may not rely unquestioningly on others to sound hue and cry concerning a danger in its product; rather, each manufacturer must bear burden of showing that its own conduct was proportionate to the scope of its duty.

12. Trial 296(3)

Although a reference to "breach of warranty" in a products liability charge may be unnecessarily confusing in some cases since that is language of contracts not torts, no prejudice resulted to defendants from its use in products liability case involving scope of asbestos manufacturer's duty to warn industrial insulation workers of dangers associated with use of asbestos, where trial court accurately instructed jury on strict liability in tort, and, with respect to breach of implied warranty,

the court specifically equated "unfitness" or "unmerchantability" with the "unreasonably dangerous" standard of strict liability in tort.

13. Federal Civil Procedure 2176

In products liability suit involving scope of asbestos manufacturers' duty to warn industrial insulation workers of dangers associated with use of asbestos, refusal to instruct jury that liability could not be imposed if utility of product outweighed the danger involved did not constitute error, where jury was told that liability could not be imposed unless product was "unreasonably dangerous," a concept that necessarily implies a balancing of a product's utility against the danger.

14. Products Liability 13

A manufacturer has an independent duty to test its product.

15. Products Liability 14

A seller may be liable to ultimate consumer or user for failure to give adequate warnings; the seller's warnings must be reasonably calculated to reach such persons and presence of an intermediate party will not by itself relieve the seller of this duty.

16. Federal Civil Procedure 2142

In diversity cases, a federal rather than a state test is applied to determine whether there is sufficient evidence to create a jury question.

17. Courts 406.3(2, 3)

A federal appellate court must scrupulously avoid usurping function of jury by weighing conflicting evidence and inferences or by judging credibility of witnesses and then arriving at its own conclusion concerning merits of parties' contentions; rather, the court's task is limited to determining whether there is a conflict in substantial evidence sufficient to create a jury question.

18. Products Liability 83

Evidence, in action by an industrial insulation worker against manufacturers of insulation materials containing asbestos to recover for injuries caused by manufacturer's alleged breach of duty in failing to warn of dangers involved in handling asbestos, warranted finding that danger to worker and other insulation workers from inhaling asbestos dust was foreseeable to manufacturers at time the products causing worker's injuries were sold.

19. Products Liability 88

Danger from inhaling asbestos dust was not, as a matter of law, sufficiently obvious to asbestos insulation workers to relieve manufacturers of insulation materials containing asbestos of duty to warn.

20. Products Liability 14

When a failure to give adequate warning is alleged to have made a product unreasonably dangerous, the standard of strict liability is essentially similar to the standard for establishing negligence; the seller or manufacturer has a duty to warn of foreseeable dangers.

Even if general verdicts are internally inconsistent, such is the jury's prerogative if there is evidence to support finding reached by the jury.

Whether manufacturer's conduct was a substantial factor in bringing about injury to user is a question for jury, unless the court determines that reasonable men could not differ.

Evidence, in action by an industrial insulation worker against manufacturers of insulation materials containing asbestos to recover for injuries caused by defendants' alleged breach of duty in failing to warn of danger involved in handling asbestos, authorized finding that each defendant was cause in fact of some injury to worker.

In general, a defendant is liable only for that portion of harm which he in fact caused.

25. Torts 22

Defendants, each of whom was cause in fact of some injury to plaintiff, could be held jointly and severally liable for total damages, under Texas law.

Under Texas law, doctrine of volenti non fit injuria has four elements: the plaintiff knows the facts constituting a dangerous condition; he knows the condition or activity to be dangerous; he appreciates the nature or extent of the danger; and he voluntarily exposes himself to the danger.

Plaintiff is not contributorily negligent unless his conduct in encountering the danger was unreasonable; unlike volenti non fit injuria doctrine, the contributory negligence doctrine requires a balancing of utility of plaintiff's conduct against magnitude of the danger.

Industrial insulation worker, who brought strict liability action against manufacturers of insulation materials containing asbestos to recover for injuries caused by defendants' alleged breach of duty in failing to warn of dangers involved in handling asbestos, was entitled to go to jury with question of whether his consent to incur risk was voluntary or was product of duress of circumstances and unreasonable, under Texas law.

Giving of instruction to effect that volenti, consisting of voluntary conduct in encountering a known and appreciated danger, was a defense to a strict liability action was error, since under Texas law contributory negligence or assumption of risk is a defense to a strict liability action only if the plaintiff's conduct is both voluntary and unreasonable; however, reversal of jury's verdict was not required where despite this error jury still found that plaintiff had not assumed risk even under harsh volenti doctrine.

Giving of instruction that none of alleged acts of contributory negligence was a defense to a strict liability action did not constitute error, in action by industrial insulation worker against manufacturers of insulation materials containing asbestos to recover for injuries caused by defendants' alleged breach of duty in failing to warn of dangers involved in handling asbestos, notwithstanding defendants' claim that plaintiff's allegedly negligent failure to wear a respirator constituted a misuse of product and barred recovery, where defendants never suggested that respirator should be worn by insulation workers or provided any other directions as to product's use, and plaintiff used defendant's product exactly for its intended use.

31. Trial 295(1)

Trial court's charge must be read as a whole and not as if each sentence were a solitary verbal phenomenon existing in an otherwise empty vacuum; test is not whether charge was faultless in every particular but whether jury was misled in any way and whether it had understanding of issues and its duty to determine those issues.

Refusing to submit special interrogatories to jury on several issues, including assumption of risk, and instead submitting case on a general verdict did not constitute abuse of discretion, in products liability case. Fed.Rules Civ.Proc. rule 49, 28 U.S.C.A.

33. Limitation of Actions → 105(2)

Where industrial insulation worker's damage action against manufacturers of insulation materials containing asbestos was filed a few months after Texas Industrial Accident Board issued its final judgment approving settlement of award, action was not barred by two-year Texas statute of limitations for personal injury actions. Vernon's Ann. Tex.Civ.St. arts. 5526, 8307 et seq., 8307, §§ 4a, 6a.

34. Limitation of Actions 95(1)

Even if Texas Workmen's Compensation Act merely tolls two-year Texas statute of limitations for personal injury actions, industrial insulation worker's action against manufacturers of insulation materials containing asbestos for injuries

caused by their alleged breach of duty in failing to warn of dangers involved in handling asbestos was not barred by statute of limitations, where worker did not know that he had asbestosis until surgery was performed, no doctor previously examining worker had diagnosed his condition as asbestosis, and action was filed seven months after worker was informed of his condition. Vernon's Ann.Tex.Civ.St. arts. 5526, 8307 et seq., 8307, §§ 4a, 6a.

Where trial court had determined that total amount of damages was $79,436.24, and four of ten defendants named in original complaint had settled before trial, paying a total of $20,902.20, there was no error in rendering judgment jointly and severally against remaining six defendants for balance of $58,534.04, notwithstanding defendants' claim that trial court should have given each defendant named in the original complaint a prorata credit of four-tenths of total amount of damages, leaving a balance of $46,669.98 to be rendered against remaining six defendants, especially in view of facts that full credit method used by trial court was one of methods of computing damages initially suggested by defendants and there was no showing of unfairness.

In general, a writing used to refresh a witness' memory is not testimony and is inadmissible when offered by the witness' party; this does not mean, however, that it is always error for trial court to permit jury to inspect such a writing.

37. Witnesses 257, 272

A writing used to refresh a witness' memory may be admitted when offered by opposing party or when jury on its own motion requests to see it.

38. Witnesses 257

A writing used to refresh a witness' memory may be admitted when trial court determines that such inspection would assist jury in understanding the evidence and would not be prejudicial to the opposing party.

Admission of several cards, which contained names of various products manufactured by defendants and dates and locations when plaintiff has used each product, and which plaintiff had used to refresh his memory while his deposition was being taken, did not constitute error, notwithstanding defendants' claim that cards were inadmissible heresay, when during his 33 years as an industrial insulator plaintiff was employed for varying periods at many locations and used several different products containing asbestos, where defendants manufactured a wide variety of products under brand names, and where plaintiff died before trial and only his earlier deposition was available.

40. Evidence 261

Ruling that industrial insulation worker's statement "Although I became ill on the last job I worked, the fact is that I have worked for 33 years, subject to the hazards of the job and I cannot truthfully say when I contracted asbestosis," which statement was made in application filed as part of worker's workmen's compensation claim, was not an admission, did not constitute abuse of discretion, in action against asbestos manufacturers for injuries sustained by worker, when employed by others, as result of his exposure to defendants' products.

41. Products Liability 14

Manufacturer's duty to warn of foreseeable dangers associated with its products extends to all users and consumers, including common worker in shop or in field.

42. Products Liability 88

On Petition for Rehearing

In action by insulation worker against manufacturers of insulation materials containing asbestos to recover for injuries caused by defendants' alleged breach of duty in failing to warn of dangers involved in handling asbestos, the jury could have concluded, within trial judge's instructions, that the "cautions" appearing on the packages of certain of defendants' products were not warnings in the sense that they adequately communicated to planitiff and other insulation workers knowledge of the dangers to which they were exposed so as to give them a choice of working or not working with a dangerous product.

43. Products Liability → 88

In action by insulation worker against manufacturers of insulation material containing asbestos to recover for injuries caused by defendants' alleged breach of duty in failing to warn of dangers involved in handling asbestos, jury's finding against defendants on the issue of failure to warn was not incorrect as a matter of law. There was significant evidence to create a question as to the adequacy of labels to serve as warnings.

44. Products Liability — 42

The utility of an insulation product containing asbestos might outweigh the known or foreseeable risks to insulation workers and thus justify its marketing, but the product could still be unreasonably dangerous if unaccompanied by adequate warnings.

45. Products Liability →→ 83

In action by insulation worker against manufacturers of insulation materials containing asbestos to recover for injuries caused by defendants' alleged breach of duty in failing to warn of dangers involved in handling asbestos, jury could have properly decided, on the evidence before it, that plaintiff received no warnings at all from any defendant at a time when they were under a duty to warn him, or, with respect to three defendants who did issue watered down "cautions," the jury could properly have held on the evidence that those warnings were inadequate to communicate to plaintiff knowledge of the hazards to which he was being exposed.

46. Products Liability 88

In action by insulation worker against manufacturers of insulation materials containing asbestos to recover for injuries caused by defendants' alleged breach of duty in failing to warn of dangers involved in handling asbestos, jury acted within its proper function in finding, in respect to the issue of strict liability, that plaintiff did not "voluntarily and unreasonably" proceed "to encounter a known danger." 47. Product Liability 96

Although the trial court, in action by insulation worker against manufacturers of insulation materials containing asbestos to recover for injuries caused by defendants' alleged breach of duty in failing to warn of dangers involved in handling asbestos, rejected defendants' proffered instructions on assumption of risk or volenti non fit injuria, the court did in fact inform the jury, by an instruction which was actually overly favorable to defendants, that assumption of risk is a defense to a strict liability action.

48. Products Liability 27

Under Texas law, contributory negligence or assumption of risk is not a defense to an action based on strict liability when the injured party does not deliberately encounter a risk the existence of which he knows; but it will be a defense when it consists of voluntary and unreasonable conduct to encounter a known use.

George A. Weller, Beaumont, Tex., for Fiberboard Paper Prod. Corp.

George E. Duncan, Beaumont, Tex., for Pittsburg Corning Corp.; W. Page Keeton, Austin, Tex., of counsel.

W. N. Arnold, Jr., Houston, Tex., for Philip Carey Corp. and Armstrong Cork Corp.

John G. Tucker, Gordon R. Pate, Beaumont, Tex., for Johns Manville Prod. Corp. Ward Stephenson, Orange, Tex., for Clarence Borel.

George E. Murphy, Beaumont, Tex., for Nat'l Surety Corp.

Robert E. Barnes, Beaumont, Tex., for Ruberoid Co.

Before Tuttle, Wisdom and Simpson, Circuit Judges.

Wisdom, Circuit Judge:

This product liability case involves the scope of an asbestos manufacturer's duty to warn industrial insulation workers of dangers associated with the use of asbestos. Clarence Borel, an industrial insulation worker, sued certain manufacturers of insulation materials containing asbestos to recover damages for injuries caused by the defendants' alleged breach of duty in failing to warn of the dangers involved in handling asbestos. Borel alleged that he had contracted the diseases of asbestosis and mesothelioma as a result of his exposure to the defendants' products over a thirty-three year period beginning in 1936 and ending in 1969. The jury returned a verdict in favor of Borel on the basis of strict liability. We affirm.