Weekes v. Michigan Chrome & Chemical Company
| Decision Date | 10 November 1965 |
| Docket Number | No. 15796.,15796. |
| Citation | 352 F.2d 603 |
| Parties | Eustace WEEKES, Plaintiff-Appellee, v. MICHIGAN CHROME & CHEMICAL COMPANY, a Michigan Corp., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Harold B. Desenberg, Detroit, Mich., Moll, Desenberg, Purdy, Glover & Bayer, Detroit, Mich., on brief; Humphreys Springstun, Detroit, Mich., of counsel, for appellant.
George L. Downing, Detroit, Mich., Kelman, Loria, Downing & Craig, Detroit, Mich., on brief, for appellee.
Before MILLER, O'SULLIVAN and EDWARDS, Circuit Judges.
O'SULLIVAN, Circuit Judge.
Plaintiff-appellee, Eustace Weekes, contracted a serious skin condition as a result of working with "Miccrowax C-600," sold by defendant-appellant, Michigan Chrome & Chemical Company.1 A jury awarded him $24,000 damages in an action charging that defendant had negligently failed to provide adequate warning of the dangers involved in using this wax and to advise the proper precautions for avoiding them. Appellant charges that the District Judge erred in denying its motion for a directed verdict, in rulings on evidence and in the instructions given to the jury.
I) Motion for directed verdict.
On this subject, we state the facts as the jury could have found them most favorable to plaintiff. Upon critical points, defendant's proofs contradicted plaintiff's, but the issues thus made were for the jury's decision.
Weekes was employed by B & H Hard Chrome Company where Miccrowax C-600 was used as a "stop-off" in chrome plating various items to prevent plating of all but the proper areas. First, items to be plated were "dipped" in the wax, then the wax was "trimmed" from the areas to be plated, and finally after plating the wax was "stripped" from the finished item and set aside for reuse. Weekes performed each of these three operations before his skin trouble developed, but the jury could find from his testimony that he quit "dipping" thereafter on medical advice to avoid contact with fumes of the melted wax. Dipping operations were performed during this period in a separate shed, ventilated by an open door, a window, another window equipped with a twenty inch ventilating fan, and a hole in the roof. During dipping operations as well as at all other times, Weekes was fully clothed. Although he handled the wax with his bare hands "two or three" times, and occasionally removed a glove for delicate trimming work, Weekes habitually wore gloves while working with the wax.
Slightly more than a year after plaintiff began work for B & H, he began to notice a skin disturbance which was shortly diagnosed by a dermatologist as "one of the most typical and most severe" eruptions of chlor-acne that he had seen. This condition, occurring over substantially all of plaintiff's body, is produced not by an allergic reaction but by a mechanical stuffing of the skin pores. Defendant states in its brief to this Court that "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." Plaintiff testified, however, that he had not known of any danger in using the wax before his condition was diagnosed, and that he thereafter followed what he understood to be his instructions to avoid the fumes given off by the heated wax. As to his understanding of and obedience to this doctor's advice, Weekes' testimony was in conflict with that of his doctor, but it was for the jury to resolve the issue so made. Dickerson v. Shepard Warner Elevator Co., 287 F.2d 255, 260 (CA 6, 1961).
Defendant acknowledges the dangers inherent in using its wax, and introduced proof to show an invariable custom of selling it with certain warning labels. There was testimony that plaintiff's employer, B & H, obtained the wax only through an intermediary, the Plating Products Company. Recognizing that its wax is frequently resold by distributors in smaller lots, it also sought to show that it had reasonable grounds for anticipating that Plating Products knew of the danger involved and would assure proper relabeling of small lots.
To counter this general proof, plaintiff offered evidence that wax was received in its original containers both directly from defendant and also from Plating Products without any warning labels at all until after plaintiff's trouble began and a sample label was obtained from Plating Products. It was also testified that wax was obtained from Plating Products in smaller packages which carried no warning and that even after the trouble began, the only warning ever seen by plaintiff or his employers was the red label described below. To show the inadequacy of Plating Products' knowledge as an "informed" middleman, there was evidence that literature on the wax was requested when B & H was introduced to it by Plating Products as a stop-off peculiarly suited to high-temperature plating processes, but that B & H was provided only with information as to the melting point. Further bearing on Plating Products' knowledge of the dangers and appropriate precautions involved, it was testified that its salesman simply warns new customers "that the material does require ventilation in the use of it," and that when a Plating Products official learned of plaintiff's trouble he contacted defendant's representative "knowing that there was a danger in using the wax, would that be the reason?"
Beyond his proofs designed to show defendant as well as Plating Products actually failed to employ the claimed warnings, plaintiff challenged the adequacy of the claimed warnings themselves. The red label which plaintiff and his employer testified they first saw following the beginning of plaintiff's trouble reads as follows:
Another label claimed to be used by defendant warns: Finally an instruction folder states
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 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." Defendant's own foreman does not rely on the labels to warn its employees about handling the wax, and there was evidence that its own sales representative viewed the dipping shed used by Weekes and found it adequately ventilated. Although one label states the wax is chlorinated and a witness testified that "any high school boy or public school boy knows that chlorine gas is dangerous," it was made clear at trial that chlorine will not cause chlor-acne except in combination with certain hydrocarbons, particularly chlorinated naphthalenes (as used in this wax) or diphenyls. Finally, we have already noted that defendant's brief here recognizes the need for "protective clothing;" one of plaintiff's experts testified that adequate types of clothing might include elbow-length gloves, aprons with sleeves, and plastic face masks. This witness testified that plaintiff's illness could follow exposure of the skin to the fumes from the melted wax, without inhaling or actual contact with the wax itself.
The foregoing evidence favorable to plaintiff was sufficient, we believe, to support a jury determination that defendant was negligent either in failing to take steps which would justify a belief that its label would come to the attention of an ultimate user of its wax or in adopting labels inadequate to warn of the dangers and precautions necessary in using the wax. There was some uncertainty at trial as to what law should govern this case because the wax was distributed from Michigan and used by plaintiff in New Jersey. This problem was finally resolved by an understanding that New Jersey law should govern, presumably in accord with the traditional choice of the law of the place of injury. No reason appears for examining the problem further, however, since we believe New Jersey and Michigan would apply identical principles in measuring plaintiff's proofs.
As in many negligence situations, we are not pointed to any clearly dispositive precedents. The general rule in regard to a supplier's duty to warn of known dangers in the ordinary use of his products is found in Restatement, Torts § 388 (1934):
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