Hardy v. Proctor & Gamble Mfg. Co.

• Decision Date: 06 January 1954
• Docket Number: No. 14614.,14614.
• Citation: 209 F.2d 124
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: HARDY v. PROCTOR & GAMBLE MFG. CO. et al.

209 F.2d 124 (1954)

HARDY v. PROCTOR & GAMBLE MFG. CO. et al.

No. 14614.

United States Court of Appeals, Fifth Circuit.

January 6, 1954.

F. Fox Benton, Houston, Tex., Burris, Benton, Baker & Zwiener, Houston, Tex., of counsel, for appellant.

Jas. F. Bobbitt, Karl E. Kraft, Hamblen & Bobbitt, Houston, Tex., for appellees.

Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges.

HUTCHESON, Chief Judge.

Ruth Hardy, appellant, plaintiff below, brought this suit against the appellees, alleging¹ that defendants had caused, and were liable to her for having caused, the loss of the sight of both her eyes.

The claim in two counts, one based upon implied warranty and the other based upon negligence, was that Dreft, though put out and sold as a safe product to use, was, when brought in sufficient quantity into contact with the human eye, dangerous and deleterious thereto, and the defendants had breached the implied warranty of safe use which accompanied the sale and had also been negligent in not giving adequate warning of the dangers inherent in its coming into contact with the human eye.

In addition to a denial that the use of the detergent Dreft was the proximate cause of appellant's injuries, the defenses were: (1) to the claim of warranty, that defendants had not warranted the product as safe for use in the eyes in the quantity and under the conditions claimed by plaintiff in this case; and (2) to the claim of negligence, (a) that the product Dreft contained no foreign, dangerous, or deleterious substance, but was composed only of the usual ingredients commonly incorporated in such products; that appellees did not know, and by exercise of reasonable diligence could not have known, that the detergent Dreft was, or would be, harmful to persons, using it in the manner and for the purpose for which it was manufactured; because in fact it would not be, (b) that plaintiff and all other persons using Dreft knew that it was not intended for use in the eyes and would cause painful consequences if induced therein, and therefore appellees owed no duty of warning appellant of such consequences.

The case was tried to a jury, and at the conclusion of the evidence for all the parties, the appellees moved for an instructed verdict which was granted.

Appealing from the judgment on that verdict, appellant is here presenting as the only question on this appeal, whether the evidence² in the record in this cause, taken in its most favorable light to plaintiff, raised an issue for the jury, either under the theory of liability based upon implied warranty or that based upon negligence of appellees.

It is appellant's contention that this question should be answered in the affirmative. That of appellees is that it should be answered in the negative.

Appellant insists that this evidence raised issues from which the jury could have found:

(1) Appellant got some of the product Dreft into her eyes on Oct. 2, 1949, and Oct. 16, 1949.

(2) Dreft was the producing cause of the injuries to appellant's eyes and her resulting blindness.

(3) Sodium lauryl sulphate in Dreft renders it inherently dangerous to the eye.

(4) Appellees owed to appellant a duty to warn her of the presence in Dreft of the highly dangerous chemical and failure to do so was negligence.

(5) Appellant had no knowledge of the dangerous chemical in Dreft.

(6) Appellee knew or should have known of the harmful ingredients in Dreft.

(7) Failure of appellees to warn appellant of the presence of the dangerous chemical in Dreft was negligence and this was a proximate cause of the injuries and damages suffered by her.

Quoting from 65 C.J.S., Negligence, page 623, § 100, she cites many cases³ in support of the rule:

"There is a duty to give notice or warning of the dangerous qualities of the article, especially where there is a representation that the product is not dangerous, and, where such notice or warning is not given, the manufacturer or seller is liable for an injury arising from a use which should have been contemplated, at least where the manufacturer or seller failing to give notice has knowledge of the dangerous qualities. If the article is dangerous to human life if improperly used, the manufacturer and distributor must apprise the public by labels or otherwise of the manner in which the article may be safely used."

Among the cases cited are Armstrong Packing Co. v. Clem, Tex.Civ.App., 151 S.W. 576, a Texas case, dealing with soap containing a poisonous ingredient as to which no warning had been given, and cases dealing with inflammable combs, poisonous eyebrow and eyelash dye, dangerously explosive water proofing compounds and various other products, containing harmful and deleterious ingredients, in which said products have been held to have been negligently manufactured or put out without adequate warning.

Appellees, on their part, pointing out that the advertisement of Dreft in which the defendant stated that the detergent was safe if it got into the human eye, was put out in 1942, many years before this occurrence, and further that plaintiff had never seen or heard of the article, insists that taken as a whole the article merely states in effect, that such Dreft as might get into the eye in normal use is not harmful and that this statement is supported by the undisputed evidence that defendant's employees handling Dreft in large quantities do not use goggles or any other eye protection, and though the room in which they work is vapor filled with Dreft particles, none of them have ever received any injury, and that though literally millions of packages have been distributed, no other claim of injury from Dreft has ever been made. So pointing, they insist that there is no basis in this case for a claim that there has been any breach of warranties.

They further point to the testimony of plaintiff that she knew that Dreft was not intended for use in the eyes and would burn if allowed to get in them,⁴ and that while working in the laboratory at the time she claims that her eyes were injured, she was never conscious of Dreft being in her eyes on either of the two occasions, although she did say that she was conscious of its being in the sweat on her face and some of it running into the corners of her mouth.

To the claim of negligence appellees answer that the undisputed testimony of Dr. Nicholas, Associate Professor of Chemistry at Rice, is that he had analyzed a sample from the particular box which plaintiff used in her activities in the laboratory on the second occasion complained of, and found no foreign, dangerous, or deleterious substance in the product and concluded that it was a mild detergent with about the same irritative qualities as Palmolive, Ivory, or Camay soap, and would cause only mild irritation to the human eye. As to the testimony of plaintiff's witness that blindness had resulted from their putting in a rabbit's eye a Dreft solution, appellees argue that the experiment is not in point because it is not shown how the amount put into the rabbit's eye compared with that which they claimed got into plaintiff's eyes and further appellees oppose to the rabbit experiments the undisputed evidence of experiments conducted by placing in the eyes of two persons, who had volunteered themselves for experiment, precisely the same quantities that are in Dreft without any injurious results. They also point to the undisputed fact that plaintiff was allergic to certain substances and had had some eye trouble before, and to the testimony that the use by the doctors of pontocaine and other alleviates could, acting with her allergy, have caused the result. On the whole case they take the position that our case of Sawyer v. Pine Oil Sales Co., 5 Cir., 155 F.2d 855 controls. In that case, plaintiff sued for injuries to her eyes as the result of a splashing into them of a cleaning fluid with which she was cleaning a sink. This court held that there was no express warranty against non-injury to the eye nor any warranty implied or otherwise that the cleaning agent was suitable for use in the eye, nor that it would not hurt the eye if put therein, and also that there was no duty owing plaintiff by the defendant to warn plaintiff because the danger of injury from getting the cleaning fluid in the eye was obvious and no one is under an actionable duty to warn another of a fact of which he is already fully aware.

In addition to our case, the appellees cite other cases⁵ dealing each on its own facts with the general question involved here.

Appellant, in its counter reply to appellees' position and its cases, urges that this is not a case like the ones on which appellees rely, that it is a case of serious, and not merely painful injuries, and particularly that defendants having stated that it would not hurt the eye if used therein, cannot now be heard to say that the evidence as a whole is not for the jury.

Appellant particularly insists that our Sawyer case is not in point because there the injury from a splashing fluid was plainly obvious, while here it would be a question of fact for the jury whether the injury she received from getting the Dreft in her eye was plainly obvious to her and others. Especially is this so, since, as shown by her testimony she did not know on the first occasion that it had gotten into her eye or that it was in any manner responsible for injuring it, and that she was not conscious that it was getting into her eyes the second time until she finally realized that it must be the Dreft.

Appellees in reply urge that having received a serious and painful injury in the first encounter she was guilty of contributory negligence as a matter of law in repeating the same procedure, and cannot charge the appellees with responsibility for her injury. Finally, appellees urge that, taking the evidence as a whole, there is no sound basis in law for the conclusion that Dreft caused the injury.

The case is certainly not one free...