Smith v. Burdine's, Inc.
Citation | 198 So. 223,144 Fla. 500 |
Court | United States State Supreme Court of Florida |
Decision Date | 27 September 1940 |
Parties | SMITH et al. v. BURDINE'S, Inc. |
Rehearing Denied Nov. 12, 1940.
Error to Circuit Court, Dade County; Paul D. Barns, Judge.
Action for breach of warranty by Christine Smith, joined by V Morris Smith, as her husband and next friend, against Burdine's, Incorporated, a corporation. To review a judgment for the defendant, plaintiffs bring error.
Reversed and new trial granted.
Carson, Petteway & Stembler, of Miami, for plaintiffs in error.
McKay Dixon & DeJarnette and Evans, Mershon & Sawyer, all of Miami, for defendant in error.
This case is before the Court on writ of error to a final judgment for the defendant below entered by the Circuit Court of Dade County, Florida. The declaration sought recovery on two counts: (a) Upon a breach of an implied warranty of fitness for the use and purposes intended; (b) upon the breach of the express warranty of wholesomeness. On demurrer to each count of the declaration it was contended that the plaintiff, as a matter of law, had no cause of action against the retailer of the article sold to the plaintiff, but the cause of action, if any, was against the manufacturer or wholesaler thereof. The demurrer was overruled and the material portions of the order are, viz.:
The case went to trial on pleas: (a) Not guilty; (b) that it did not promise as alleged; (c) defendant denies that the lipstick was not reasonably fit and proper to use for cosmetic purposes; (d) defendant denies it knew that a certain lipstick would find its way into the mouth and stomach of one using the lipstick; (e) defendant denied the lipstick was then and there unfit for use as a cosmetic.
The plaintiff offered evidence in support of the material allegations of the declaration and rested her case. The lower court sustained a motion for a directed verdict made by the defendant below on the theory that no evidence had been offered upon which the jury would be warranted in returning a verdict in behalf of the plaintiff below. A motion for a new trial was made and overruled and judgment final entered for the defendant below and an appeal therefrom has been perfected to this court.
The facts established by plaintiff below are substantially, viz.: During the month of August, 1936, plaintiff bought of Burdine's department store in the City of Miami a Tiger Lilly lipstick manufactured by Charles of the Ritz which was delivered to the plaintiff in a metal container, the same as purchased by Burdine's, Inc., from Charles of the Ritz. Plaintiff paid $1 for the lipstick at the cosmetic counter of Burdine's, Inc. She stated that prior to the purchase she asked for a good brand of lipstick and the saleslady recommended it. 'She told me that the lipstick was guaranteed under the pure food law Grade A.' 'The idea was always there that I was buying a guaranteed lipstick'. 'She told me it was a guaranteed lipstick under the pure food law.' 'They recommended the lipstick and for this reason I bought it.'
The lipstick, she stated, was without stickability and after she would eat her lips would be colorless and the color therefrom stained objects touching her lips and some would be found on her teeth and in her mouth and could not be removed; that after using the same for a short time she had digestive trouble, which gradually grew worse; her face was swollen; eyes turned red, and was sick for more than a year and under the treatment of a physician.
Dr. Dyrenforth, a pathologist, testified that he made an analysis of the lipstick in July, 1938, and that the same contained a harmful matter chemically known as metaxylene-azo-betanapthol, which is a coal tar derivative. He further testified:
* * *
'Mr. Carson: All right, go ahead, doctor
Dr. Graves testified that he treated the plaintiff for a period of some fifteen or sixteen months, and the material portion of his testimony is, viz.:
Pearl Roberts testified as to the health of the plaintiff prior to the use of the lipstick and the poor condition after the use thereof and is in line with the testimony of Dr. Graves.
The questions to be decided on this appeal, as contended for by counsel for plaintiff in error, are, viz.:
'Is a retailer of package goods liable to a purchaser thereof for damages resulting from injuries sustained from the use thereof by reason of deleterious matter therein on an implied warranty of fitness for purposes intended when he had no control over the manufacture of the article in question, sold it in its original container and purchased the same from a reputable manufacturer?
'Is a retailer of package goods liable to a purchaser thereof for damages resulting from injuries sustained from the use thereof by reason of deleterious matter...
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