Ocean Accident & Guarantee Corp. v. Herzberg's, Inc.

• Citation: 100 F.2d 171
• Decision Date: 02 December 1938
• Docket Number: No. 11178.,11178.
• Parties: OCEAN ACCIDENT & GUARANTEE CORPORATION, Inc., v. HERZBERG'S, Inc.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

100 F.2d 171 (1938)

OCEAN ACCIDENT & GUARANTEE CORPORATION, Inc., v. HERZBERG'S, Inc.^*

No. 11178.

Circuit Court of Appeals, Eighth Circuit.

December 2, 1938.

G. L. DeLacy, of Omaha, Neb. (Yale C. Holland, J. A. C. Kennedy, E. J. Svoboda, R. E. Svoboda, and Edwin Cassem, all of Omaha, Neb., on the brief), for appellant.

Sam Beber, of Omaha, Neb. (Robert J. Webb, Philip M. Klutznick, and Harold M. Kelley, all of Omaha, Neb., on the brief), for appellee.

Before STONE, WOODROUGH, and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

This is an appeal from a judgment against appellant on a public liability insurance policy. Appellee sued to recover the amount expended by it in the defense and payment of a judgment rendered against it in favor of one Grace Robertson for personal injuries alleged to have been sustained by her in the course of certain treatments in a beauty-shop department of appellee's store in Omaha, Nebraska, known as the Marinello Shop, Inc.

Herzberg's, Inc., is a large retail women's clothing and department store. It includes a few departments leased to and operated by persons other than the appellee corporation. Among such departments was "Irene Gray, dba The Marinello Shop, Inc." Irene Gray under the above style was named as an assured in the policy, which was the ordinary public liability policy, indemnifying appellee's store and its named departments against claims of customers and others arising out of accidental bodily injuries occurring within or upon the premises. To this policy, however, there was attached the following endorsement or rider: "The under mentioned policy is issued by the Company and accepted by the Assured with the understanding that the Company shall not be liable for bodily injuries, illness, or death resulting therefrom, suffered by any person or persons in consequence of an error or alleged error or mistake in administering, applying or dispensing drugs, chemicals, mixtures or the like; or in the making or compounding of prescriptions; or in consequence of professional services or treatments or the omission thereof, or malpractice on the part of any physician, surgeon, nurse, druggist, assistant, attendant or any person connected with the Assured in the operation of the business covered by this policy".

The Marinello Shop was operated by Irene Gray under the style hereinabove stated. One Goldie York was an attendant in the shop. In April, 1925, Grace Robertson, a minor, of about eleven years of age, went to this beauty shop to have a growth of hair removed from her face. This was the nature of work done generally by this and other beauty shops in Omaha during the years 1925 and 1926. Such work is described as including "facials, manicuring, and removing superfluous hair, and hair waving generally." These beauty parlors had mechanical devices and electric machines. Some of the treatments were administered by hand, and some "by electrical instruments and apparatuses". Goldie York, as an attendant in the Marinello Shop, and connected with the assured in the operation of its business, gave Grace Robertson treatments for removing superfluous hair from the face by means of an electrical apparatus called a "Tricho" machine. She testifies that "after giving these treatments her face seemed to be burned — the appearance of a burn-discoloration". This was the bodily injury for which Miss Robertson recovered damages.

Goldie York testified that she was a "cosmetician" and had practiced cosmetology since her graduation from a school in Los Angeles, where the art of cosmetology was taught. Irene Gray, the operator of the shop, and her employer, was also a graduate of a cosmetology school. Miss York testified that she had no special training in the operation of the Tricho machine. "We would plug the machine in and it would work automatically".

A jury was waived, and the court, sitting as a jury, found the issues for appellee and entered judgment against appellant in the sum of $14,843.46 and costs. The action of the trial court was based upon its construction of the so-called malpractice endorsement, to the effect that its application was confined to "bodily injuries suffered in consequence of professional treatments administered by any physician, surgeon, nurse, druggist, or by any assistant, attendant or helper to any such physician, surgeon, nurse or druggist."

We think this construction of the endorsement is too narrow in view of its plain language, and the circumstances conditioning its application. It is provided, among other things, that the insurance company shall not be liable for bodily injuries suffered by any person in consequence of professional services or treatments or malpractice, on the part of any attendant, person or persons connected with the assured in the operation of the business covered by the policy. This language aptly covers the situation here presented. The treatment of Miss Robertson's face for the removal of hair therefrom was a professional treatment administered in a department of the appellee by persons connected with the assured in the operation of its business. That department was held out to the public as qualified to administer treatments of the nature employed in beauty shops generally. The operator of this shop and her assistant York were educated in schools devoted to instruction in the Art of Cosmetology. It is noteworthy that the State of Nebraska has deemed it necessary and proper by statute to regulate the practice of cosmetology, including provisions for education and supervision, requirements for certificates to practice, and causes for revocation of such certificates, among others, malpractice and unprofessional conduct. (C. S. Nebraska 1929, sec. 71-2101; 71-2109) The term profession has in the past been so generally associated with theology, medicine, and law, that the construction adopted by the trial court may be readily understood. However the term has long ceased to be connected and restricted exclusively to those so-called learned professions. The New Century Dictionary, 1927, uses this language: "Formerly theology, law and medicine were specially known as the professions; but as the application of science and learning are extended to other departments of affairs, other vocations also receive the name".

In the Oxford English Dictionary, 1926-32, a profession is defined as "the occupation which one professes to be skilled in and to follow". It involves a "vocation in which a professed knowledge of some department of learning or science is used in his application to the affairs of others, or in the practice of an art founded upon it". This is now substantially the definition generally accepted by the recognized authorities, and specifically in Nebraska. See the statute cited above, and Village of Dodge v. Guidinger, 87 Neb. 349, 127 N.W. 122, 138 Am.St.Rep. 494. Compare 50 C.J. 637.

The fact that physicians, surgeons, nurses, and druggists are mentioned in the endorsement can have no effect of limiting its application to such professions and vocations. Of course any malpractice on the part of such would fall within the exclusion if they were summoned to administer to a person injured upon appellee's premises; but there is no evidence that appellee maintains a staff of physicians and surgeons, or is a purveyor of drugs, and obviously such persons do not come within that part of the endorsement excluding from liability under the policy bodily injuries suffered in consequence of professional services or treatments on the part of an attendant or any person connected with the assured in the operation of the business covered by the policy. This construction is essential if we are to give force and effect to the plain language and scope of the endorsement. The obvious error involved in the professional application of the Tricho apparatus, whether due to negligence or ignorance, amounted to malpractice under the terms of this endorsement. In consequence thereof appellant is expressly not liable under its policy.

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