Ray v. JC Penney Company

• Decision Date: 30 December 1959
• Docket Number: No. 6219.,6219.
• Citation: 274 F.2d 519
• Parties: Mrs. Ferol RAY, Appellant, v. J. C. PENNEY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

274 F.2d 519 (1959)

Mrs. Ferol RAY, Appellant, v. J. C. PENNEY COMPANY, Appellee.

No. 6219.

United States Court of Appeals Tenth Circuit.

December 30, 1959.

R. R. Mitchell, Dodge City, Kan. (W. C. Gould, Don C. Smith, Dodge City, Kan., and Bernie D. Frigon, Cimarron, Kan., were with him on the brief), for appellant.

H. E. Jones and William P. Thompson, Wichita, Kan. (A. W. Hershberger, Richard Jones and Jerome E. Jones, Wichita, Kan., were with them on the brief), for appellee.

Before HUXMAN, PICKETT and LEWIS, Circuit Judges.

HUXMAN, Circuit Judge.

This was an action in which the plaintiff, Mrs. Ferol Ray, sought damages from J. C. Penney Company because of injuries she suffered from wearing a pair of gloves she purchased from a J. C. Penney Store. The complaint alleged that, "The gloves sold plaintiff by defendant on December 24, 1956, contained deleterious and harmful substances, the exact nature of which plaintiff does not know and cannot state as they are peculiarly within the knowledge of the defendant, and by reason thereof and the defendant's breach of warranty of fitness, wholesomeness and wearableness of said gloves, the plaintiff was injured and damaged * * *." The complaint further stated that the dye in the gloves bled and poisoned the plaintiff and caused her material damage. Issues were joined and the case was submitted to a jury on the court's instructions. The jury returned a verdict for the defendant.

The evidence shows that on December 24, 1956, appellant purchased a pair of blue leather gloves at the Penney store in Dodge City, Kansas. She put them on at the time of purchase and continued to wear them for approximately two hours. During the time she was wearing them, she became quite ill, and upon arriving home, removed the gloves and found that her hands were blue. The evidence appears to be without dispute that the coloring on her hands came from bleeding of the dye used to color the leather from which the gloves were made. There was evidence that appellant had a rare allergy and an unusual sensitivity to something in the gloves. There was medical testimony that there was a causal connection between the wearing of the gloves and appellant's illness; that the cause thereof might have come from the dye or from the leather itself; that her reaction to something in these gloves was very rare. Dr. Hale testified that in his experience he had never come across a case such as this. When asked to give his opinion as to the number of people who might react as she did to the wearing of these gloves, he at first replied that he could give no estimate. Upon further questioning, he answered, over objection, that in his opinion there would be no more than one in a million.

A number of assignments of error are urged for reversal. It is urged, first, that the trial court erred in admitting evidence of manufacturing techniques, maintenance and procedure; second, that the trial court erred in instructing the jury; third, that the trial court erred in admitting the incompetent, irrelevant, prejudicial testimony of Dr. Hale, which was based solely on conjecture; and, fourth, that the trial court erred in allowing defendant to change its answer to plaintiff's interrogatory Number 3.

At the pretrial conference, the court ruled that evidence of the methods of manufacture would not be admitted. In the trial, the defendant was permitted, over objection by plaintiff, to introduce evidence of processing techniques used in the manufacturing of these gloves. This evidence was not introduced to show the processing formula. It related to the number of persons who came in contact with the specific leather from which these particular gloves were made, without injurious results. Its admissibility was expressly limited to this purpose. No reversible error resulted from its admission.

It is urged that the court erred in permitting Dr. Hale to state that in his opinion not more than one out of a million persons would be affected, as plaintiff was, from wearing these gloves. It may be conceded that his answer was based upon a mere conjecture. The Doctor had previously testified that plaintiff's reaction to the wearing of these gloves was very rare and that in all his practice, he never had come across a similar case. At most, the answer complained of merely emphasized his previous testimony as to the rarity of such an occurrence. The answer could not have misled the jury.

Further complaint is made to the ruling of the court permitting defendant to change its answer to plaintiff's interrogatory Number 3. Prior to trial, plaintiff had asked defendant in interrogatory Number 3 to, "State the complete chemical analysis of the dye used to color the leather from which the said gloves in J. C. Penney Co. lot #4509 were made." Counsel for defendant immediately sought to obtain this information but was unable to do so because the manufacturer of the gloves, who was not a party to the action, refused to reveal the secret process. About a week before trial, defendant's counsel answered the interrogatory over the telephone in a conversation with plaintiff's attorney, stating, "Manufacturer of the dye will not disclose its formula to the defendant. It is, however, an aniline dye." After the jury was empaneled and the trial had commenced, H. E. Jones, one of defendant's attorneys, informed R. R. Mitchell, one of plaintiff's attorneys, that defendant's attorneys had just received the formula that morning and that the formula did not contain what they had orally stated it contained, although there was aniline in the formula. Shortly thereafter, defendant asked and was granted permission, over plaintiff's objection, to amend its answer to interrogatory Number 3 to conform to the new information received. To have permitted the incorrect answer to interrogatory Number 3...