BARTON
v.
MYERS.
Docket No. 154.
Michigan Court of Appeals.
Decided September 20, 1965. Leave to appeal granted November 24, 1965.Howard C. Fisher, for plaintiff.
Brownell, Gault & Andrews (Dale E. Andrews, of counsel), for defendant Permalastic Products Company.
Leave to appeal granted by Supreme Court November 24, 1965.
*462 QUINN, J.
Gerald Barton was burned while applying defendant Permalastic Products Company's "Permalastic Contact Bond Cement" to formica sheets. As a reasonable inference from the facts, it appears that the vapors from the cement were ignited by a gas furnace which unexpectedly went on within a short distance of where plaintiff was using the cement. He brought this suit for damages alleging that the defendant Permalastic Products Company was negligent in not providing more warning of the volatility and explosive nature of the product.
At the conclusion of the proofs, the defendant's motion for a directed verdict was granted. The question presented on this appeal is whether or not there was a jury question.
The label on the can which plaintiff used contained the warning: "Caution Inflammable Mixture Do not use near fire or flame," printed in letters approximately 1/4 inch in height. The defendant established by ample proof that the warning complied with the standard of the industry. The plaintiff claims that the warning was not adequate.
The case is governed by Cheli v. Cudahy Brothers Co. (1934), 267 Mich. 690, wherein it is said at page 695:
"`No one is held liable to a higher degree of care than the average in the trade or business in which he is engaged.' Ketterer v. Armour & Co., 160 CCA 111, 121 (247 F 921, 931, LRA 1918 D, 798)."
On this record, the trial court properly directed a verdict of no cause for action. Trial court affirmed, with costs to appellee.
J.H. GILLIS, P.J., concurred with QUINN, J.
T.G. KAVANAGH, J. (concurring).
The Cheli decision requires affirmance and for that reason, I concur. *463 However, I believe the better rule is that the reasonableness of care should be determined by the jury in accord with the principle enunciated by Mr. Justice Holmes in Texas & P.R. Co. v. Behymer (1903), 189 U.S. 468 (23 S. Ct. 622, 47 L ed 905) at page 470:
"What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not."
I believe that negligence should seldom, if ever, be determined as a matter of law for the reasons so well stated in Mr. Justice COOLEY'S opinion in Detroit & M.R. Co. v. Van Steinburg (1868), 17 Mich. 99.