Sales Affiliates, Inc. v. McKisson, 7641

• Decision Date: 10 October 1966
• Docket Number: No. 7641,7641
• Parties: SALES AFFILIATES, INC., Appellant, v. L. A. McKISSON, Appellee. . Amarillo
• Court: Texas Court of Appeals

Page 124

408 S.W.2d 124

SALES AFFILIATES, INC., Appellant, v. L. A. McKISSON, Appellee.

No. 7641.

Court of Civil Appeals of Texas.

Amarillo.

Oct. 10, 1966.

Rehearing Denied Nov. 7, 1966.

Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellant, John D. Curtis, Amarillo, of counsel.

Wayne B. Barfield and J. Jerry Merchant, Amarillo, for appellee, Wayne B. Barfield, Amarillo, of counsel.

DENTON, Chief Justice.

This is a products liability case. Suit was brought by L. A. McKisson for injuries alleged to have been sustained by his wife from the use of a permanent wave preparation known as 'Zoto's Lanolin Bath'. Mrs. McKisson suffered scalp burns and loss of hair after applying the wave lotion. The defendant below was Sales Affiliates, Inc., the distributer of the product. Professional Beauty Products, a local beauty supply company which furnished the permanent wave preparation to Mrs. McKisson, is not a party to the suit.

The plaintiff's cause of action was based on a breach of implied warranties of fitness and merchantability, and negligence in the alternative. The trial court submitted the case to the jury on both the implied warranty and negligence issues. The jury found for the plaintiff on the implied warranty issue that the Zoto permanent wave was not reasonably fit for use as a permanent wave; that Mrs. McKisson was damaged as a result of using the product; and that the product was the proximate cause of the damages sustained. In response to the negligence issues the jury found: the defendant failed to provide adequate directions for the use of the product; that such failure was negligence, and a proximate cause of the injury. The jury further found the wave lotion in question should not have been applied to bleached hair; that a reasonably prudent beauty operator in the exercise of ordinary care would have known the lotion should not have been applied; that the application of the lotion to Mrs. McKisson's hair was negligence; and that such negligence was a proximate cause of her damages. The jury awarded plaintiff $1,000.00 damamges. The trial court entered judgment for the plaintiff on the basis of the breach of implied warranty.

Appellant's first contention goes to the submission of the implied warranty issue. Their position is there are no allegations and proof establishing any privity between the parties, and as a matter of law the appellant could not be held liable for damages for a breach of an implied warranty. Mrs. McKisson was the owner and operator of a beauty shop. Although she was not a licensed operator herself she employed licensed operators to give permanent waves and to perform the various beauty shop services for her customers. The Zoto permanent wave preparation in question was given to Mrs. McKisson by a salesman of Professional Beauty Products Company as a promotion to encourage the use of Zoto products. Sales Affiliates, Inc., the defendant below, was the distributer of the product. This is evidenced only be the labels on the bottles containing the preparation in question. There is no evidence who manufactured the product, but in our view there is no material distinction between manufacturer and distributer under the facts in this case. In any event, there was no privity between the parties hereto.

The basic question to be decided is whether or not the rule of implied warranty or liability without fault as set out in Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 has application here, or stated differently, will that rule be extended to nonfood cases. The Texas Supreme Court has not so extended the Decker rule. This is so even though that court has, in the twenty-four years since the Decker case, had an opportunity to do so. As this court stated in Capetillo v. Crosby County Fuel Association, 407 S.W.2d 335, decided this date: '(T)he Supreme Court of Texas had not (as of February 1966) capitulated to the liability without fault doctrine outside the food cases.'

In Brown v. Howard (Tex.Civ.App.) 285 S.W.2d 752; Ref. N.R.E. (1955), the court considered whether or not the rule of implied warranty as set forth in Decker had application to one formulating chemicals for use as a cattle spray. The court noted the Decker case and the authorities cited therein 'disclose an emphasis upon 'food for human consumption". In refusing to extend the Decker rule the court said: 'We feel unauthorized on the basis of the Decker case to recognize a further exception to the general rule and impose liability in this case absent privity of contract.' The recent case of Cruz v. Ansul Chemical Company (Tex.Civ.App.) 399 S.W .2d 944; Ref. N.R.E. (1966) had to do with an alleged implied warranty of the fitness of a fire extinguisher. In refusing to apply strict liability without fault the court held: 'Plaintiff's suit is based solely on allegations of a breach of alleged implied warranty not involving negligence. No privity of contract existed between Plaintiff and Ansul. We feel that the present law in Texas governing the suit as against defendant Ansul is set forth in Brown v. Howard, Tex.Civ.App., 285 S.W.2d 752.' The court then quotes extensively from the Brown case. The results of both the Brown case and Cruz case were approved by the Supreme Court. There is no Texas authority to the contrary. Unlike the Fifth Circuit Court of Appeals in Putnam v. Erie City Manufacturing Company, 338 F.2d 911 (1964), this court is not in a position to make 'an Erie educated guess' and speculate whether the Texas Supreme Court will extend the rule of the Decker case to nonfood cases. In our judgment it is not proper for an intermediate appellate court to place Texas among those 'enlightened jurisdictions' which have applied strict liability without privity in nonfood products liability cases. Under the presently existing Texas law, we conclude and so hold, the trial court erred in submitting the implied warranty doctrine and in rendering judgment on that basis.

We next turn to the alternative issue of negligence. As stated, the jury found Sales Affiliates was negligent in failing to provide adequate instructions for the use of the permanent wave, and that such negligence was a proximate cause of the plaintiff's damages. However, the jury also found the wave lotion should not have been applied to bleached hair; that a reasonably prudent beauty operator in the exercise of ordinary care would have known this to be true; and that the application of the lotion on Mrs. McKisson's hair was negligence and a proximate cause of her damages. It is uncontradicted that the lotion was applied by a licensed beauty operator. Mrs. McKisson had bleached hair and she testified she last bleached it in February before this incident occurred in April, and she knew certain hair lotions were not to be applied...