Attorneys for Appellant
Attorneys for Appellee
Thomas A. Clements Julia Blackwell Gelinas
David M. Hamacher Nelson D. Alexander
Hammond, Indiana Allison S. Avery
James L. Gilbert
Paul J. Komyatte
Attorneys for Amicus Curiae
Indiana Trial Lawyers Association
David V. Scott
New Albany, Indiana
Thomas C. Doehrman
Appeal from the St. Joseph County Superior Court, No. 71D07-9405-CT-00130
The Honorable William C. Whitman, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 71A03-0003-CV-00108
October 29, 2003
The Escort was stopped at an intersection in Mishawaka when a 1991 Honda
Accord hit the vehicle in the rear. Fords expert estimated that the
Honda Accord was traveling at 33 to 35 miles per hour but Morgens
expert estimated that it was traveling at 24 to 28 miles per hour.
Regardless, the impact of the rear-end collision caused the Escort to crash
into an Oldsmobile Cierra in front of it. The back of the
Escort suffered substantial damage. Morgen sustained a spinal cord injury in the accident
and is now quadriplegic.
Morgen filed a products liability suit against Ford Motor Company claiming that the
Escort was defective and unreasonably dangerous. The two parties offered conflicting expert
testimony to explain how Morgen was injured. Morgens experts testified that the
injury was caused when the rear seat deformed upward during the crash, reducing
the occupant survival space and causing Morgens head to strike the roof of
the car. Morgens experts further testified that the structural design of the
Escort was defective and that a flaw in the manufacturing process created structural
weakness in the vehicle.
Ford denied that the Escort was improperly designed and disputed Morgens theory. Fords experts testified that Morgens neck was broken because the horizontal forces moving the vehicle launched him into the roof of the Escort. Ford pointed to evidence of rear-end crash tests showing that an unbelted back seat passengers head does not move appreciably in a vertical direction in accidents of the type that happened here. Rather, Fords experts testified, when the Escort was rear-ended, the car moved forward but Morgen did not. Instead, Morgens torso remained in place as the seatback compressed and moved to a reclined position. The seatback then pushed him forward and as his torso was driven forward, his head and neck, which were above the seat, flexed backward. Ford claimed that Morgens spinal injury occurred when he ramped up and over the seatback as the Escort moved forward. Ford also asserted that Morgens decision not to wear a seat belt constituted a misuse of the Escort.
The trial court rejected jury instructions tendered by Morgen regarding the duty to warn of latent defects but it gave an instruction on misuse. The jury returned a verdict in favor of Ford. The Court of Appeals reversed and remanded on the ground that the trial court abused its discretion in giving an instruction on misuse. Morgen v. Ford Motor Co., 762 N.E.2d 137, 140-44, 147 (Ind. Ct. App. 2002). We granted transfer. 783 N.E.2d 701 (table).
Additional facts will be discussed as necessary.
The Court of Appeals determined that the trial court committed reversible error by
giving this instruction. The court said that it had repeatedly held
that it is clearly foreseeable that a passenger might fail to wear a
safety belt, and that Indiana law does not require back seat passengers in
automobiles to wear one. Morgen, 762 N.E.2d at 142. Given that
failure to wear a seat belt was reasonably expected and that there was
no clearly enumerated duty to do otherwise, the court concluded that failure to
wear a seat belt could not constitute a misuse. Id. at 142-43.
We believe the instruction was properly given here. We see the essential
question to be whether it was within the province of the fact finder
to determine if the plaintiffs failure to utilize a safety device provided by
the manufacturer constituted misuse of the manufacturers product. While we agree with
Morgen that his failure to use the seat belt did not constitute a
misuse as a matter of law, so too do we agree with Ford
that the question of misuse was a matter for the jury, not the
court, to decide. We believe this result serves to encourage manufacturers to
equip their products with safety devices irrespective of whether the devices use is
mandatory or even widespread.
When a manufacturer does not reasonably expect it, a plaintiffs failure to use
available safety devices can constitute misuse in a crashworthiness case. See Leon
v. Caterpillar Indus., Inc., 69 F.3d 1326, 1344 (7th Cir. 1995) (applying Indiana
law, the court stated a person who disregards manufacturer safety devices raises an
issue of misuse and, further, that evidence of such is sufficient to justify
an inference of misuse) (citations omitted).
See footnote Foreseeable use and misuse are typically
questions of fact for a jury to decide.
Vaughn v. Daniels Co.
(W. Va.), 777 N.E.2d 1110, 1129 (Ind. Ct. App. 2002) (citation omitted), trans.
pending; Underly v. Advance Mach. Co., 605 N.E.2d 1186, 1189 (Ind. Ct. App.
1993) (The foreseeability of an intervening misuse is usually a question for
the jury.) (citation omitted), trans. denied. A number of other jurisdictions have
reached this same result in similar cases. Melia v. Ford Motor Co.,
534 F.2d 795, 797, 799 (8th Cir. 1976) (stating that under Nebraska law
it was proper for the jury to determine whether the decedent misused the
product by failing to use a safety belt); General Motors Corp. v. Walden,
406 F.2d 606, 609 (10th Cir. 1969) (holding that under Arizona law the
court properly instructed the jury that the plaintiff's failure to wear a safety
belt could be a misuse); Brown v. Ford Motor Co., 67 F. Supp.
2d 581, 582, 584-87 (E.D. Va. 1999) (finding that under Virginia law evidence
of pickup driver's failure to wear a safety belt was admissible in an
action against the manufacturer as it relates to product misuse), aff'd, 10 Fed.
Appx. 39 (4th Cir. 2001).
It is true that the statute provides that the misuse defense is only
available to the seller when the misuse was not reasonably foreseeable from the
seller's perspective at the time the product was sold. Underly, 605 N.E.2d
at 1189. When the Court of Appeals said that it had repeatedly
held that it is clearly foreseeable that a passenger might fail to wear
a safety belt, it was referring to three criminal cases. In each,
the defendants sought to avoid liability for deaths caused by their driving on
the ground that the victims were not wearing seat belts. See Green
v. State, 650 N.E.2d 307, 309-10 (Ind. Ct. App. 1995); Warner v. State,
577 N.E.2d 267, 270 (Ind. Ct. App. 1991); Bowman v. State, 564 N.E.2d
309, 310 (Ind. Ct. App. 1990), rev'd and remanded on other grounds, 577
N.E.2d 569 (Ind. 1991). Not surprisingly, their claims were rejected on
the basis that, because the failure to wear a seat belt was reasonably
foreseeable, such failure was not an intervening cause sufficient to absolve the defendants
of criminal responsibility.
We think the courts reliance on these cases proves too much. If
it is so clearly foreseeable that a passenger will not wear a seat
belt, it is difficult to see any harm from the instruction given here.
The jury was told that the misuse defense was only available if
Ford did not reasonably expect the alleged misuse. If a passengers failure
to wear a seat belt is as clearly foreseeable as the Court of
Appeals says it is, we think that would be just as clear to
a jury and it could not render a verdict for the defense because
there would be no misuse.
If, on the other hand, there was
some genuine question about Fords expectation of Morgens failure to wear his seat
belt, then this was a most appropriate question to submit to the jury,
as the cases make clear. See Leon, 69 F.3d at 1344; Vaughn,
777 N.E.2d at 1129; Underly, 605 N.E.2d at 1189.
Morgens proposed instruction no. 6 read:
You may find that Ford Motor Company, because of its technical knowledge as a designer, manufacturer and distributor, knew or should have known of the dangers posed by the 1984 Escort in reasonably foreseeable rear end collisions and also knew that consumers such as Morgen, without the benefit of such technical information, could not have known of those dangers. If you so find, then you may find that Ford Motor Company owed the duty to warn of such dangers posed by the 1984 Escort.
Morgens proposed instruction no. 13 read: Although a manufacturer is under no duty to warn of apparent dangers, a manufacturer has the duty to guard against hidden defects and give notice of concealed dangers. (R. at 1118.)
Rather than use Morgens tendered instructions, the trial court used the text of the Product Liability Act. In relevant part, the jury was instructed as follows:
A product is in a defective condition if, at the time it is conveyed by the seller to another party, it is in a condition:
Not contemplated by reasonable persons among those considered expected users or consumers of
the product; and
That will be unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways of handling or consumption.
A product is defective under this chapter if the seller fails to:
(1) Properly package or label the product to give reasonable warnings of danger
about the product; or
(2) Give reasonably complete instructions on proper use of the product; when the seller, by exercising reasonable diligence, could have made such warnings or instructions available to the user or consumer. . . .
Unreasonably dangerous refers to any situation in which the use of a product
exposes the user or consumer to a risk of physical harm to an
extent beyond that contemplated by the ordinary consumer who purchases it with the
ordinary knowledge about the products characteristics common to the community of consumers.
(R. at 465-66.)
The Court of Appeals held the trial courts instruction inadequate. First, it
found that the instruction did not inform the jury of the information Ford
needed to possess about defects in its product to trigger a duty to
warn. Morgen, 762 N.E.2d at 146. In contrast, the Court of
Appeals said that Morgens tendered instructions explained that Ford had a duty to
warn consumers of hidden dangers Ford knew or should have known about, but
that a consumer could not have known about. Id. On this
basis, it concluded that Morgens tendered instructions were not covered by the instruction
given to the jury. Id.
Second, the Court of Appeals found that Morgens substantial rights were prejudiced by
the failure to instruct the jury on the duty to warn regarding hidden
defects because this apparent disparity left the jury to speculate as to what
knowledge Ford needed before its duty to warn consumers arose. Id.
The instruction given at trial informed the jury that Ford had a duty to warn of danger[s] about the product. Morgens tendered instructions also instructed the jury that Ford had a duty to warn. However, Morgens instructions focused on hidden defects and concealed dangers. In so doing, we acknowledge that they more narrowly described the scope of Fords duty to warn than did the trial courts instruction. But the trial courts instruction allowed the jury to find that Ford had a duty to warn of any danger about the product. As a matter of logic, this included hidden defects and concealed dangers. Accordingly, we believe the substance of Morgens tendered instructions were covered by the instruction given at trial. For this reason, Morgens substantial rights were not adversely affected by the trial courts refusal to read his tendered instructions.
Even if Morgens instructions were not encompassed by the trial courts instruction, we do not find the record sufficient to warrant giving Morgens tendered instructions on failure to warn.
The primary evidence supporting Morgens tendered warning instructions is three-fold. First, Morgen provided evidence suggesting that Ford knew that the Escort was dangerous in rear-impact collisions and that consumers would not be aware of the danger. Second, Janet Snyder testified at trial that she would not have purchased the car, and wouldnt have let [Morgen] be in the back seat, had she been warned that danger to back seat passengers was a possibility. (R. at 3251-52.) Finally, Morgen testified that he would not have gotten in the Escort had he known of the potential danger.
There was, however, no testimony or evidence presented at trial on the content
or placement of a warning that would have prevented the danger posed by
the alleged defect. In Nissen Trampoline Co. v. Terre Haute First Natl
Bank, 265 Ind. 457, 463-64, 358 N.E.2d 974, 978 (1976), this Court said
that supporting and opposing evidence relevant to a determination of what a proper
warning should state . . . . [is] indispensable to a rational conclusion
that the product was defective and unreasonably dangerous to the user without warnings,
and to a rational conclusion that such unreasonably dangerous condition was the proximate
cause of the accident and injury. Without such evidence, the parties and
appellate courts are required to hypothesize as to specific warnings that would meet
The concern we expressed in Nissen applies equally here. As in that
case, the jury here was instructed in such a way that it could
determine Ford to be liable on the basis of a failure to provide
an adequate warning. Morgen did present some evidence showing that the issue
of warnings was a legitimate concern. However, as was also true in
Nissen, neither party presented evidence as to what a warning could have said
or where it could have been placed. Without this evidence we are
left to hypothesize as to what specific warnings would have made the Escort
reasonably safe. We will not find the trial courts instructions inadequate without
Rebuttal evidence is evidence that tends to explain, contradict, or disprove an adversarys
evidence. Trial courts may exclude testimony offered in rebuttal that should have
been presented in the partys case in chief. However, such a decision
is left to the sound discretion of the trial court. McCullough v.
Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind. 1993) (quoting Watkins v. State,
528 N.E.2d 456, 459 (Ind. 1988)) (citations omitted). We review for an
abuse of discretion.
Morgen maintains that Dr. Joseph Burton should have been allowed to testify that
Fords June, 1999, crash test film shows that the test dummy began moving
up with the seat early in the crash, thereby implying that Morgens injury
was a result of a product defect and not the force of the
crash. He also urges that deposition testimony of Jack Ridenour should have
been allowed arguing that the film analysis of the tests should control over
the electronic data generated during the tests. Relying on McCullough, Morgen asserts
that the excluded rebuttal testimony, if believed by the jury, would likely have
produced a different result and therefore requires a new trial. (Br. of
Appellant at 37 (quoting McCullough, 605 N.E.2d at 181).)
In McCullough, we clarified a rule that requires known and anticipated witnesses to
be identified pursuant to a court order or to a proper discovery request.
605 N.E.2d at 179. After finding a violation of this rule,
we noted that the trial court could properly have excluded testimony from unidentified
witnesses as a sanction. We nonetheless remanded the case to the trial
court because we found that it had been unclear whether it was necessary
to identify known and anticipated witnesses in light of a tradition of nondisclosure
of rebuttal witnesses among Indiana lawyers and in light of the fact that
the excluded testimony would likely have produced a different result at trial.
Id. at 181.
In contrast, Morgen does not suggest that Ford intentionally failed to disclose a
known or anticipated witness in violation of a court order or of a
proper discovery request. In fact, Morgen and Ford had agreed to allow
Ford to introduce into evidence the disputed June, 1999, crash test data in
return for Morgen being permitted to introduce computer animated drawings and a surrogate
Morgen further argues that his rebuttal testimony should have been admitted
against Fords expert witness, Dr. Roberts, because Morgen did not have the luxury
of knowing in advance of trial how Roberts intended to rely upon the
. . . tests and that rebuttal was his only opportunity to address
this key testimony. (Br. of Appellant at 37.) Specifically, Morgen maintains
that Dr. Robertss testimony that the dummys head did not move upward until
after the seat deformed came as a complete surprise because Fords opening statement
led Morgen to assume that Dr. Roberts would testify that Morgens head collided
with the roof of the car before the floor pan was pushed upward.
(Id. at 35.)
As already noted, Morgen and Ford had an agreement that allowed Ford to
present the data from the June, 1999, crash tests about which Dr. Roberts
testified. Morgen claims that Dr. Robertss testimony was a surprise. However,
Morgen had full access to Fords crash test data before it was used
at trial. In fact, the opinion Dr. Roberts expressed at trial was
consonant with his opinion expressed in a pre-trial deposition. The trial court
could have concluded that Morgen was not unfairly surprised by Dr. Robertss testimony
at trial and, as such, it was well within its discretion to deny
Morgen permission to call these witnesses.
Shepard, C.J., and Boehm, J., concur.
Dickson, J., dissents with separate opinion.
Rucker, J., dissents with separate opinion in which Dickson, J., concurs.
Dickson, Justice, dissenting.
In addition to concurring with Justice Rucker's dissent, I write to emphasize the
point upon which I most strenuously disagree with the majority.
It is unquestionably error for a trial court to give an instruction on
a proposition of law about which there was no evidence. Mullins v.
Bunch, 425 N.E.2d 164, 165-66 (Ind. 1981); Dahlberg v. Ogle, 268 Ind. 30,
40, 373 N.E.2d 164, 165-66 (Ind. 1978); Wylie v. Myers, 238 Ind. 385,
391, 150 N.E.2d 887, 890-91 (1958); Birdsong v. ITT Continental Baking Co., 160
Ind. App. 411, 415, 312 N.E.2d 104, 107 (1974); Summers v. Weyer, 141
Ind. App. 176, 179-80, 226 N.E.2d 904, 907 (1967). Here the jury
was instructed, over the plaintiff's objection, that "misuse of the product by the
claimant or any other person not reasonably expected by the seller at the
time the seller sold or otherwise conveyed the product to another party" is
a defense to the plaintiff's claim. R. at 1101 (emphasis added).
For this instruction to have been proper, it was thus necessary that there
be evidence not only that the plaintiff misused the product, but also that
such misuse was not reasonably expected by Ford Motor Company at the time
it sold the 1984 Ford Escort.
There was absolutely no evidence at trial to establish that Ford Motor Company
reasonably expected every rear seat passenger to always wear a seat belt.
Such contention defies common sense. Not only in 1984, but even today,
it is common knowledge that significant numbers of automobile passengers fail to wear
their seat belts. The Indiana statute requiring the use of seat belts
was not enacted until 1985 and it applied then, and today still applies,
only to front seat occupants. Indiana Code § 9-19-10-2. It is
preposterous to claim that Ford Motor Company did not reasonably expect some rear
seat passengers in Ford automobiles occasionally to ride without buckling their seat belts.
Because of the total lack of evidence establishing that the failure to
wear rear seat belts was unforeseeable to Ford, the trial court clearly erred
in giving the misuse instruction.
The erroneous giving of an instruction that is not based on the evidence
is reversible error unless it clearly appears that no harm resulted.
Summers, 141 Ind. App. at 180, 226 N.E.2d at 907. As noted
in Justice Rucker's dissent, throughout the trial, Ford focused on the plaintiff's failure
to wear a seatbelt. Given the jury's verdict favoring Ford, it cannot
reasonably be claimed that no harm resulted from the erroneous misuse instruction.
I would reverse the judgment of the trial court.
Rucker, Justice, dissenting.
I respectfully dissent from that portion of the majority opinion declaring the trial court properly gave to the jury a product misuse instruction. Misuse is considered an unforeseeable intervening cause that relieves a manufacturer of liability. Indianapolis Athletic Club, Inc. v. Alco Standard Corp., 709 N.E.2d 1070, 1072 (Ind. Ct. App. 1999), trans. denied. It is a defense when a consumers decisions and conduct are not reasonably expected from the standpoint of the manufacturer at the time of sale. Ind. Code § 34-20-6-4; See footnote Underly v. Advance Mach. Co., 605 N.E.2d 1186, 1189 (Ind. Ct. App. 1993), trans. denied.
I agree that whether a consumers conduct is reasonably foreseeable or expected falls peculiarly within the province of the jury. Short v. Estwing Mfg. Corp., 634 N.E.2d 798, 801 (Ind. Ct. App. 1994), trans. denied. However, that is not the end of the matter. Rather, the burden is on the manufacturer to introduce evidence in support of its defense. See, e.g., Marshall v. Clark Equip. Co., 680 N.E.2d 1102, 1108-09 (Ind. Ct. App. 1997) (noting that the manufacturers product safety director testified that plaintiff operated machinery in an unforeseeable manner), trans. denied. As applied to the facts here, Ford had the burden of proving that it did not reasonably expect or reasonably foresee that Morgen, or any other back seat passenger for that matter, would fail to wear a seat belt in Fords 1984 Escort wagon.
Tacitly acknowledging that it introduced no evidence on this point, Ford cites Leon v. Caterpillar Indus., Inc., 69 F.3d 1326 (7th Cir. 1995) for the proposition that a person who disregards manufacturer safety devices raises an issue of misuse and, further, that evidence of such is sufficient to justify an inference of misuse. Id. at 1344. Fords apparent position is that because there was testimony introduced at trial that Morgen was not wearing a seat belt at the time of the collision that alone was enough to raise a jury question on the issue of misuse.
In Leon, a disabling switch on a forklift malfunctioned and did not put the machine in neutral when the operator rose from his seat. After stepping down from the forklift and standing in close proximity thereto, the operator was severely injured when the forklift suddenly lunged forward striking him. The operator filed suit against the forklift manufacturer under theories of strict products liability, negligence, and breach of express and implied warranties. Ultimately the case went to the jury on the products liability claim only. The jury returned a verdict for the manufacturer and the operator appealed. Among other things he alleged trial court error in giving a jury instruction on misuse of the equipment. According to the forklift operator, the jury should have been instructed that, as a matter of law, there was no evidence of product misuse, because one of [the manufacturers] representatives . . . testified that [the forklift operator] was using the forklift for an intended and appropriate purpose at the time of the accident . . . . Id. at 1341-42.
Disagreeing with this argument and affirming the judgment of the District Court, the Seventh Circuit recounted the ample evidence introduced at trial to support giving the instruction, which included the operators violation of four independent safety violations. Id. at 1342-43. The Court continued: [I]f [the forklift operator] had followed any one of the precautions listed above, he would not have been injured. We refuse to hold [the manufacturer] to a standard of liability that results in it being held responsible for the kind of gross carelessness and disregard for the safety rules and regulations exhibited by [the forklift operator]. Id. at 1343-44. It was in this context the Court went on to say:
Our holding that there was sufficient evidence of product misuse to support a jury instruction and finding on the issue also finds support in this courts holding that a person who disregards manufacturer safety devices raises an issue of misuse and, further, that evidence of such is sufficient to justify an inference of misuse.
Id. at 1344. The case before us is readily distinguishable. The only evidence introduced at trial on the question of alleged misuse was testimony that Morgen was not wearing a seat belt at the time of the collision. This is insufficient to show Ford reasonably expected that Morgen would do otherwise. Ford contends that over the last twenty years or so state and federal governments, traffic safety organizations, as well as car manufacturers, have been trumpeting the necessity of wearing seat belts. Fords Pet. for Trans. at 5. Ford may be correct. However, this does not answer the question of whether in the early stages of the campaign, in particular in 1983 when Ford placed its 1984 Escort wagon on the market, Ford expected that drivers or their passengers would necessarily heed the advice to wear seat belts. In fact the record shows Ford absolutely did not expect the vast majority of people to wear seat belts. In documents submitted to the National Highway Traffic Safety Administration (NHTSA) during the period Ford was selling first generation Escorts to the public, Ford commented on seat belt use of automobile occupants. More specifically, in one document a Ford senior executive referred to the low rear safety belt usage rates of about 10 percent versus 38 percent for front seats. See Fords July 1987 comments to Docket 87-08, Notice 1, R. at 473. Although this document was not part of the evidence presented to the jury, See footnote it nonetheless belies the inference now made on appeal that Ford reasonably expected occupants of its automobiles to wear seat belts. The record is clear that when Ford sold the 1984 Escort wagon, Ford knew that 90% of rear seat occupants would not utilize seat belts.
Again, misuse is a defense when a consumers decisions and conduct are not reasonably expected from the manufacturers perspe ctive at the time the product was sold. Here, there was simply no evidence introduced at trial from which the jury could infer Fords reasonable expectation either at the time of sale or at any other time.
An instruction given to the jury must be a correct statement of the law and be supported by evidence adduced at trial. Elmer Buchta, Inc. v. Stanley, 744 N.E.2d 939, 944 (Ind. 2001). Because Ford introduced no evidence at trial on whether it reasonably expected Morgen to wear a seat belt, the trial court erred in giving a product misuse instruction.
An erroneous instruction requires reversal if it could have formed the basis for the jurys verdict. This court will assume the erroneous instruction influenced the jurys verdict unless the evidence of record shows the verdict could not have differed even with a proper instruction. Canfield v. Sandock, 563 N.E.2d 1279, 1282 (Ind. 1990). The record shows that at various points throughout the trial Ford focused on Morgens failure to wear a seat belt. For example, during opening statements counsel for Ford declared, [y]ou will also hear Dr. Roberts among others say very candidly to you they cannot tell you with engineering certainty that had this young man been wearing his seat belt at the time[,] this injury would have been avoided. Dr. Roberts will tell you that had this young man been wearing his lap belt he may have avoided this injury or certainly reduced the potential for the injury. R. at 2781-82. Dr. Roberts elaborated on this point during direct examination. See footnote When questioning one of its design engineer witnesses, Thomas Tiede, Ford brought home the point of the importance of wearing a seat belt.See footnote The r ecord also shows that through both direct and cross-examination of witnesses, Ford reminded the jury that Morgen was not wearing a seat belt at the time of the accident. See id. at 3258 (cross-examination of Janet Snyder, the driver of the car in which Morgen was passenger), 3351 (cross-examination of Morgen), 3837 (re-direct examination of Patrolman Daniel Huffman, first law enforcement officer to arrive at the scene of the accident).
This case was vigorously contested. Among other things the parties offered conflicting expert testimony to explain how Morgen was injured as well as conflicting expert testimony on whether the Escort was improperly designed. Given the emphasis Ford placed on Morgens failure to wear a seat belt, coupled with the trial courts instruction on a point about which there was no evidence, I cannot share the majoritys conclusion that the instruction was not erroneous, and even if it were, it did not affect the jurys verdict. Slip op. at 2. To the contrary, I am compelled to assume the erroneous instruction did indeed influence the jurys verdict. Canfield, 563 N.E.2d at 1282. I therefore dissent. The judgment of the trial court should be reversed and this cause remanded for a new trial.
Dickson, J., concurs.