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Murray v. Wilson Oak Flooring Co.

decided: March 5, 1973.

FREDERICK H. MURRAY ET AL., PLAINTIFFS-APPELLANTS,
v.
WILSON OAK FLOORING CO., INC., A CORPORATION, DEFENDANT-APPELLEE



Swygert, Chief Judge, Cummings and Sprecher, Circuit Judges.

Author: Swygert

SWYGERT, Chief Judge.

This appeal concerns a diversity suit in tort. Plaintiff, Frederick H. Murray, appeals from a judgment non obstante veredicto entered on motion of the appellee, Wilson Oak Flooring Co., Inc. The sole issue presented is whether the district court, on the facts of the case, properly granted a judgment notwithstanding the verdict. Both sides agree that the law of Illinois governs the resolution of this issue.

I

The facts are undisputed for the most part. The plaintiff was the owner of a small brick residential property located in Chicago. On the evening of October 3, 1969, Murray was preparing to install a parquet-wood flooring on a portion of the second floor of this building, pursuant to a plan for overall remodeling. He planned to use Latex "45" Adhesive to hold the flooring in place. Both the flooring and the adhesive had been received by Murray as a gift from the Kingston Tile Company, one of his business associates. Kingston, however, neither manufactured nor was the primary distributor of these items; both, instead, bore the label of Wilson, for whom the adhesive was manufactured on a private label basis by the Chicago Mastic Corporation.

Affixed to the five-gallon can of Latex "45" Adhesive were two labels, one of which, bright red and diamond shaped, set forth its message in boldface black letters having the following content, size and arrangement:

Keep AWAY From Fire, HEAT and OPEN flame LIGHTS

CAUTION

LEAKING Packages Must be Removed to a Safe Place

DO NOT DROP

Another label was affixed to the opposite side of the can. White with red lettering, it set forth, in part, this message:

CAUTION: INFLAMMABLE MIXTURE DO NOT USE NEAR FIRE OR FLAME

N.Y.F.D.C. of A. No. 2360

CONTAINS HEPTANE -- USE IN WELL VENTILATED AREA Do not smoke -- Extinguish flame -- including pilot ...


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