Eustace Weekes v. Michigan Chrome & Chemical Company, a Michigan Corp.

EDWARDS, Circuit Judge

(concurring in part and dissenting in part).

I concur fully in the opinion of the court in those portions which deal with the first two appellate issues discussed therein. But, respectfully, I dissent from reversal for new trial on the ground of error in the trial Judge’s instructions.

The parties to this litigation had a fair trial of the issues here presented. The jury verdict and the judgment of the court should be affirmed.

I agree fully with Judge O’Sullivan’s conclusion that Restatement of Torts § 388 on the issue of the manufacturer’s *612 duty to warn the ultimate user is an excellent statement of general tort law in this field, and consistent with the law of both Michigan (Comstock v. General Motors Corp., 358 Mich. 163 , 99 N.W.2d 627 , 78 A.L.R.2d 449 (1959)) and New Jersey (Martin v. Benque, Inc., 25 N.J. 359 , 136 A.2d 626 (1957)).

But there is nothing in this record that shows that appellant ever asked for this charge. I regard the requests for charges actually made by appellant as both self-serving and inconsistent with the Restatement view.

The trial, judge’s earnest attempt to deal satisfactorily with this problem is shown in the colloquy between counsel and the judge outside the presence of the jury after the original charge was given, but before the charge was concluded. With counsel he there considered and sought to find an answer to the very problem which is the principal one my colleagues cite in requiring retrial. At the conclusion of this colloquy he did give an additional instruction to the jury to seek to meet the issue. It follows:

“There is something else that I should like to say a word or two about. You know it is the claim of the Plaintiff that the Defendant’s negligence, its failure to give proper warnings which would reach this Plaintiff was negligence and was a proximate cause of the injury.

“Now it is the claim of the Defendant that it did every thing that it reasonably ought to have done; and I say to you that if you find that the Plaintiff suffered in this case because of the negligence of others, which negligence was the sole proximate cause of the injury, then the Defendant is not liable, for the simple reason that ‘sole’ means the exclusive proximate cause; there wasn’t any other proximate cause that produced the injuries.

“On the other hand, I must say to you that if you can find that there was, in fact, negligence on the part of the Defendant which was a proximate cause of the injuries, the fact that there was negligence on the part of others which was also a proximate cause — not the only proximate cause, but a proximate cause of the resulting injury — then that does not relieve or absolve the Defendant from liability, of course having in mind all that I have told you about in connection with the other matters that were discussed with you this morning — that is, burden of proof on the part of the Plaintiff, burden of proof upon the Defendant in the affirmative defense on Plaintiff’s alleged contributory negligence.”

By this I believe that the trial judge in general language made clear that defendant could not be held liable for the acts of an intermediate or intervening party, but only for its own negligence as established by the record.

The trial record convinces me that this issue was effectively presented to the jury in the examination and cross-examination of witnesses, and that this general instruction was sufficient to tell them the negligence law which they should apply to the fact problems in this case.

For still another reason, I believe that we should not find reversible error in the trial judge's charge on negligence.

Let us look at the undisputed facts. Defendant manufactured and placed on the market a wax for industrial use in plating. The wax had the wholly innocent appearance of soap flakes. But it actually is (and defendant knew it) a mixture of chlorinated hydrocarbons and contains a total chlorine content of 60%. The company also knew (and its instructions so stated) that this wax was to be heated to 300 degrees when in use in the plating process, and that at this temperature it would give off vapor. It also knew that that vapor could create in human skin exposed to it a permanent and disabling condition known as chloracne.

In selling this hazardous product defendant insists (and plaintiff denies) *613 that it labeled its wax cans with a number of warnings. Defendant insists that these warnings either did reach plaintiff, or that the method of warning it chose was reasonably calculated to cause the warnings to reach plaintiff. Again plaintiff enters denials.

It is the trial judge’s failure to give detailed instructions on the complex question of the manufacturer’s responsibility for actually or constructively warning an ultimate user that is said to be reversible error.

To me this wholly disregards the undisputed facts just recited. Assuming the warnings claimed by defendant were given — assuming they were received by plaintiff — they totally failed to warn him either as to the nature of the substance he was using, the danger of exposing his skin to its vapor, the requirement that for safe use he had to employ complete protective clothing, or the name or nature of the disease which would overtake him if he didn’t take these extraordinary (and never suggested) precautions.

Under these facts, whether plaintiff did or did not receive the warnings was irrelevant. If he had received them, they would not have told him not to expose his skin to this vapor or that he had to wear protective clothing when working in it.

Judge O’Sullivan’s opinion (after reciting all of defendant’s warnings) noted:

“We believe the jury could determine that such warnings do not exhort greater precautions of dress and ventilation than those they could find were actually observed by plaintiff. Beyond this possibility, moreover, there was some positive evidence of the insufficiency of the warnings. Initially, it should be be made clear that chlor-acne can be a very serious condition, possibly irreversible, and that anyone is likely to develop it on sufficient exposure to defendant’s wax or its fumes. Plaintiff’s employers had been in the plating business for twenty years when his trouble developed, but testified they were unaware of the proper procedure for using the wax and one said that when materials should not come in touch with the skin ‘usually they are very clearly marked.’ ”

In its brief defendant-appellant states flatly:

“The sort of chattel with which we are dealing here is a chlorinated naphthalene wax which has a number of industrial uses. It is necessary to wear protective clothing and have an adequate exhaust system when working with this material to avoid contacts which cause skin trouble, such as that suffered by plaintiff.”

But no warning which it ever initiated (whether received by plaintiff or not) ever said anything like the above.

The trial judge’s charge on negligence was fair to defendant-appellant 1 and deprived him of no relevant and material instruction.

As to the portion of the charge dealing with contributory negligence, less needs to be said. The general rule is, of course, that a plaintiff may not recover if he knew or should have known the dangerous nature of the product which he was using. The underlined words were not in the charge on contributory negligence as given by the charge judge.

However, I find nothing in this record to present a factual situation from which it may be deduced or inferred that plaintiff should have had knowledge of the dangerous nature of the product. As we have seen, he could not have had it by direct warnings from the labels. But he did get such knowledge by direct warnings from his doctor. There is no factual dispute about whether he should have had *614 knowledge from his doctor's warnings. The factual issue tried to the jury was whether or not he reacted as a reasonable man should react after acquiring such knowledge. This fact issue the jury obviously decided in plaintiff’s favor. And there was evidence from which they could properly have done so.

In my judgment on neither issue pertaining to the judicial instructions does appellant show that its rights were substantially prejudiced so as to require reversal for new trial. Rule 61 Fed.R. Civ.P.

. The undisputed facts recited above would have warranted grant of a motion by plaintiff for a directed verdict on the issue of negligence; however, the docket entries do not disclose that any such motion was made.