Bronson, J.
Plaintiffs are appealing from a directed verdict entered in favor of defendant prior to the impaneling of the jury.
Certain facts relevant to decision of a controlling point of law were stipulated by the parties.
Plaintiffs commenced their action against the defendant charcoal briquette manufacturer and others
for the wrongful death of Anita L. Hill and injuries to Betty Jo Hill.
Helen R. Hill, mother of the deceased and injured children, was using defendant’s briquettes in a grill or brazier in their bedroom to provide heat for both herself and the children. Mrs. Hill’s husband left her during 1970 and she was receiving sustenance for herself and her five children from Aid to Families with Dependent Children. Mrs. Hill was purchasing an old home in Detroit for which ADC had provided the requisite down payment. This home had formerly been heated by a gas space heater but, following a long running dispute concerning the gas bill, the gas had been cut off. The termination of the gas supply occurred some weeks prior to the incident presently in question. The previously mentioned gas heater was
the only source of heat, there being no usable furnace anywhere else in the house.
The bag of briquettes bore the following legend at the bottom of both sides:
"CAUTION
— FOR
INDOOR USE
— COOK
ONLY IN PROPERLY VENTILATED
AREAS”
It was stipulated by the parties for purposes of this motion that there were no other precautionary words, warnings, instructions, or other directions on the package of briquettes.
The parties further stipulated that Mrs. Hill had read and understood this language and that before retiring she "cracked open” a window in the bedroom. Mrs. Hill was not sure whether the window was still cracked open in the morning.
Upon arising in the morning, the family having slept late because it was Thanksgiving, Mrs. Hill found that Anita, age 11, had expired and that other members of the family needed emergency care. One daughter, Betty Jo, required in-patient treatment at the hospital.
Again for purposes of this motion the parties stipulated that the briquettes manufactured by defendant have as burning characteristics the fact that they consume oxygen, leaving fumes of carbon monoxide and carbon dioxide in its place. These gases are colorless and thus invisible, as well as odorless. They are noxious when accumulated and potentially lethal. Plaintiff and defendant stipulated further that defendant’s evidence would show that there were approximately 20 charcoal briquette manufacturers in the United States, and that before January 1, 1966, none of them provided any warning or instruction on their bags at all. After that date, partly because the same became a requirement of a New York stat
ute,
the quoted words were used by most charcoal manufacturers.
Many states legislate minimum standards of labeling regulating particular types of products. The policy inherent in these acts is that it is often beneficial to the particular consumer and the general public to provide a higher and surer degree of protection than is provided by the common law remedies. See, generally: Frumer and Friedman, Products Liability, § 8.07[1], pp 186.30-186.31. Commenting on these statutes, Frumer and Friedman concluded:
"Many of these statutes, ordinances and regulations are pertinent to the duty to warn. They do not nfecessarily impose any greater general duty than does the present common law. But they may set out minimum standards for labeling, violation of which is negligence per se, or at least evidence of negligence.” (Citations omitted, Frumer and Friedman, Products Liability, § 8.07[1], pp 186.31-186.32.)_
The legend above quoted demonstrates that the defendant has undertaken to warn or instruct consumers concerning the proper use and propensities of its products. The sole question for our review on this record is to determine whether the legend was adequate. We state the issue as:
Where a manufacturer of a product undertakes to explain or give warnings on the label concerning the use or propensities of its product and the explanation or warning is stipulated to be (tthe average standard in the industry”, has the manufacturer,
as a matter of law,
discharged its assumed duty to make a statement which is adequate under all the facts and circumstances?
In its determination of the motion for directed verdict the trial court relied upon
Barton v Myers,
1 Mich App 460; 136 NW2d 776 (1965). The
Barton
decision involved a warning label on contact bond cement. The defendant in
Barton
apparently proved that the warning on the label complied with the standard of the industry. Plaintiff claimed that the warning supplied was not adequate. The
Barton
Court affirmed the directed verdict for the defendant at the close of proofs, citing
Cheli v Cudahy Brothers Co,
267 Mich 690, 695; 255 NW 414 (1934), for the proposition that "no one is held liable to a higher degree of care than the average in the trade or business in which he is engaged”.
Dean Prosser, in his treatise on torts, has placed the relationship of custom and the industry standard, as it applies to the standard of reasonable conduct test, in proper perspective.
Dean Prosser concluded that an industry may not be allowed to
set its own standard without incurring the possibility that careless practices will be perpetuated.
Further relevant comments are found in Frumer and Friedman, Products Liability, wherein the authors discuss the different functions of instructions for use and warnings on labels, concluding:
"There is substantial authority that the manufac
turer must give both adequate directions for use and adequate warning of potential danger. Directions and warnings serve different purposes. Directions are required to assure
effective
use, warnings to assure
safe
use. It is clear from the better-reasoned cases that directions for use, which merely tell how to use the product and which do not say anything about the dánger of foreseeable misuse, do not necessarily satisfy the duty to warn.” (Emphasis in original — citations omitted.) Frumer and Friedman, Products Liability, § 8.05, pp 186-186.1.
The text writers disagree with the result of the majority in
Barton. Barton
itself contains the seeds of its own destruction. The concurring opinion of now Justice T. G. Kavanagh declared that:
" * * * [T]he 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
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Bronson, J.
Plaintiffs are appealing from a directed verdict entered in favor of defendant prior to the impaneling of the jury.
Certain facts relevant to decision of a controlling point of law were stipulated by the parties.
Plaintiffs commenced their action against the defendant charcoal briquette manufacturer and others
for the wrongful death of Anita L. Hill and injuries to Betty Jo Hill.
Helen R. Hill, mother of the deceased and injured children, was using defendant’s briquettes in a grill or brazier in their bedroom to provide heat for both herself and the children. Mrs. Hill’s husband left her during 1970 and she was receiving sustenance for herself and her five children from Aid to Families with Dependent Children. Mrs. Hill was purchasing an old home in Detroit for which ADC had provided the requisite down payment. This home had formerly been heated by a gas space heater but, following a long running dispute concerning the gas bill, the gas had been cut off. The termination of the gas supply occurred some weeks prior to the incident presently in question. The previously mentioned gas heater was
the only source of heat, there being no usable furnace anywhere else in the house.
The bag of briquettes bore the following legend at the bottom of both sides:
"CAUTION
— FOR
INDOOR USE
— COOK
ONLY IN PROPERLY VENTILATED
AREAS”
It was stipulated by the parties for purposes of this motion that there were no other precautionary words, warnings, instructions, or other directions on the package of briquettes.
The parties further stipulated that Mrs. Hill had read and understood this language and that before retiring she "cracked open” a window in the bedroom. Mrs. Hill was not sure whether the window was still cracked open in the morning.
Upon arising in the morning, the family having slept late because it was Thanksgiving, Mrs. Hill found that Anita, age 11, had expired and that other members of the family needed emergency care. One daughter, Betty Jo, required in-patient treatment at the hospital.
Again for purposes of this motion the parties stipulated that the briquettes manufactured by defendant have as burning characteristics the fact that they consume oxygen, leaving fumes of carbon monoxide and carbon dioxide in its place. These gases are colorless and thus invisible, as well as odorless. They are noxious when accumulated and potentially lethal. Plaintiff and defendant stipulated further that defendant’s evidence would show that there were approximately 20 charcoal briquette manufacturers in the United States, and that before January 1, 1966, none of them provided any warning or instruction on their bags at all. After that date, partly because the same became a requirement of a New York stat
ute,
the quoted words were used by most charcoal manufacturers.
Many states legislate minimum standards of labeling regulating particular types of products. The policy inherent in these acts is that it is often beneficial to the particular consumer and the general public to provide a higher and surer degree of protection than is provided by the common law remedies. See, generally: Frumer and Friedman, Products Liability, § 8.07[1], pp 186.30-186.31. Commenting on these statutes, Frumer and Friedman concluded:
"Many of these statutes, ordinances and regulations are pertinent to the duty to warn. They do not nfecessarily impose any greater general duty than does the present common law. But they may set out minimum standards for labeling, violation of which is negligence per se, or at least evidence of negligence.” (Citations omitted, Frumer and Friedman, Products Liability, § 8.07[1], pp 186.31-186.32.)_
The legend above quoted demonstrates that the defendant has undertaken to warn or instruct consumers concerning the proper use and propensities of its products. The sole question for our review on this record is to determine whether the legend was adequate. We state the issue as:
Where a manufacturer of a product undertakes to explain or give warnings on the label concerning the use or propensities of its product and the explanation or warning is stipulated to be (tthe average standard in the industry”, has the manufacturer,
as a matter of law,
discharged its assumed duty to make a statement which is adequate under all the facts and circumstances?
In its determination of the motion for directed verdict the trial court relied upon
Barton v Myers,
1 Mich App 460; 136 NW2d 776 (1965). The
Barton
decision involved a warning label on contact bond cement. The defendant in
Barton
apparently proved that the warning on the label complied with the standard of the industry. Plaintiff claimed that the warning supplied was not adequate. The
Barton
Court affirmed the directed verdict for the defendant at the close of proofs, citing
Cheli v Cudahy Brothers Co,
267 Mich 690, 695; 255 NW 414 (1934), for the proposition that "no one is held liable to a higher degree of care than the average in the trade or business in which he is engaged”.
Dean Prosser, in his treatise on torts, has placed the relationship of custom and the industry standard, as it applies to the standard of reasonable conduct test, in proper perspective.
Dean Prosser concluded that an industry may not be allowed to
set its own standard without incurring the possibility that careless practices will be perpetuated.
Further relevant comments are found in Frumer and Friedman, Products Liability, wherein the authors discuss the different functions of instructions for use and warnings on labels, concluding:
"There is substantial authority that the manufac
turer must give both adequate directions for use and adequate warning of potential danger. Directions and warnings serve different purposes. Directions are required to assure
effective
use, warnings to assure
safe
use. It is clear from the better-reasoned cases that directions for use, which merely tell how to use the product and which do not say anything about the dánger of foreseeable misuse, do not necessarily satisfy the duty to warn.” (Emphasis in original — citations omitted.) Frumer and Friedman, Products Liability, § 8.05, pp 186-186.1.
The text writers disagree with the result of the majority in
Barton. Barton
itself contains the seeds of its own destruction. The concurring opinion of now Justice T. G. Kavanagh declared that:
" * * * [T]he 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,
189 US 468; 23 S Ct 622; 47 L Ed 905 (1903), at page 470”.
Justice Kavanagh concluded that negligence should seldom if ever be determined as a matter of law.
Barton
was subjected to further criticism and limited in both
Witt v Chrysler Corp,
15 Mich App 576; 167 NW2d 100 (1969), and
Farr v Wheeler Manufacturing Corp,
24 Mich App 379; 180 NW2d 311 (1970). Finally, it must be regarded as at least limited to the facts by the Michigan Supreme Court’s decision in
Marietta v Cliffs Ridge, Inc,
385 Mich 364; 189 NW2d 208 (1971), wherein the Court, discussing
Witt,
said:
"The standard by which the negligent or nonnegligent character of the defendant’s conduct is to be
determined is that of a reasonably prudent man under the same or similar circumstances.
McKinney v Yelavich,
352 Mich 687; 90 NW2d 883 (1958).
The customary usage and practice of the industry is relevant evidence to be used in determining whether or not this standard has been met. Such usage cannot, however, be determinative of the standard.
As stated by Justice Holmes:
" '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.’
Texas and Pacific R Co v Behymer,
189 US 468, 470; 23 S Ct 622; 47 L Ed 905 (1903).
"The danger inherent in allowing an 'industry’ standard to be the sole criteria for determining whether or not the defendant exercised due care was recognized in
Witt v Chrysler Corp,
15 Mich App 576, 583; 167 NW2d 100 (1969):
" 'To adopt this view would permit the industry to set its own standard of care.’ ”
Similarly, Judge Learned Hand also enumerated the dangers of allowing an industry standard to be determinative of negligence:
" 'Indeed, in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It may never set its own tests, however persuasive be its usages.’
The T J Hooper,
60 F2d 737, 740 (CA 2, 1932).
"The question of whether the defendant in fact met the standard of reasonable prudence required of him is ordinarily one for the jury:
" ' "It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered one of law for the court.” ’
Ackerberg v Muskegon Osteopathic Hospital,
366 Mich 596, 600; 115 NW2d 290 (1962), quoting
Grand Trunk R Co v Ives,
144 US 408, 417; 12 S Ct 679; 36 L Ed 485.” (Emphasis supplied.)
Marietta v Cliffs Ridge, Inc,
385 Mich 364, 369-370; 189 NW2d 208 (1971).
The reasoned rule expressed by the commentators and supported fully by
Marietta
requires that the question of adequacy of the warning be determined by the jury.
In this case and on this record the facts were not so clear that all men would draw the same conclusion. The question, although close, is properly for the jury to consider.
Reversed and remanded for trial. Costs to plaintiif-appellant.
All concurred.