Kurriss v. Conrad & Co.

• Decision Date: 30 December 1942
• Citation: 46 N.E.2d 12,312 Mass. 670
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: EMMA H. KURRISS v. CONRAD & CO., INC.

312 Mass. 670

46 N.E.2d 12

EMMA H. KURRISS v. CONRAD & CO., INC.

Supreme Judicial Court of Massachusetts, Suffolk.

December 30, 1942

October 7, 1942.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, & COX, JJ.

Sale, Warranty Parties. Proximate Cause. Pleading, Civil, Declaration.

A woman might be found to be the purchaser of a dress at a store where she examined it, tried it on and took it away, although, as a matter of convenience, the dress was charged to a relative's account at the store and the sales slip was made out to the relative, instead, of being paid for in cash by the woman.

Evidence that upon a woman's wearing a new dress a "contact dermatitis" appeared on exactly the parts of her body which came into contact with the dress, that color came off the dress onto her body, and that she had never had skin ailments before, with medical testimony that the dress was the cause of the dermatitis, warranted a finding that it was such cause although there was no direct evidence that it contained an injurious substance.

A count in a declaration failed to state a cause of action for breach of implied warranty of fitness under the sales act where it contained no allegation of disclosure of the purpose of the purchase to the seller or of reliance by the purchaser upon the seller's skill and judgment.

Evidence, that a woman at a store asked for a certain type of dress and tried on and purchased one which the clerk showed her and which caused

"contact dermatitis" when she wore it, warranted a finding that within

G. L. (Ter.

Ed.) c. 106 Section 17 (1), she relied on the seller's skill and judgment not to sell her a dress containing a latent injurious substance.

CONTRACT OR TORT. Writ in the Superior Court dated June 2, 1939. The first and third counts of the declaration were as follows: "Count 1. The plaintiff says that on December 24, 1938, she bought from the defendant a certain dress to be worn by her; that the defendant impliedly warranted that said dress was reasonably fit to be so worn; that after purchasing said dress as aforesaid the plaintiff wore the same; that said dress was not reasonably fit to be so worn because it contained a certain poisonous dye or other substance which poisoned the plaintiff's body, as the result of which the plaintiff" sustained damage; "and the plaintiff further says that due notice of said breach of warranty was given the defendant." "Count 3. And the plaintiff says that on or about December 24, 1938, she bought from the defendant a certain dress to be worn by her, which purpose was made known to the defendant; that in the selection of said dress the plaintiff relied upon the skill and judgment of the defendant and that the defendant impliedly warranted that the said dress was of merchantable quality and free from defects, but that the said dress in truth was not of merchantable quality in that when worn it caused injury to the plaintiff, and the plaintiff thereby" sustained damage. "And the plaintiff further says that due notice of said breach of warranty was given to the defendant."

The action was tried before Walsh, J., who ordered verdicts for the defendant on the second and third counts and, after a verdict for the plaintiff on the first count, ordered entered a verdict for the defendant under leave reserved. The plaintiff alleged exceptions.

H. J. Williams, (F.

A. Daly & B.

J. Killion with him,) for the plaintiff.

B. A. Sugarman, for the defendant.

COX, J. The plaintiff contends that there was error in directing a verdict for the defendant on her third count and also on the first count upon leave reserved. The first count, in substance, alleges that the plaintiff bought a dress from the defendant, which impliedly warranted that it was reasonably fit to be worn, but that it was not, for the reason that it contained a certain poisonous dye or other substance which poisoned her body. The third count alleges that the purpose of the purchase was made known to the defendant and that, in the selection of the dress, the plaintiff relied upon the skill and judgment of the defendant, which impliedly warranted that the dress was of merchantable quality and free from defects, but that it was not.

It could have been found that the plaintiff went to the defendant's store with her sister, where she examined a number of dresses hanging on a rack, but found nothing that she was looking for. One of the defendant's clerks then asked her what she was seeking and was informed that she wanted "something more of a print type of dress than this. This is rather a bit heavy." The clerk asked for the plaintiff's size and said that she would see what she could find for her, adding, "I think I have something very new that just has come in. I will see what size it is. I think you might like it." The clerk went to another room and returned with a print dress which the plaintiff tried on and "purchased" under the following circumstances. She "took out her money to pay for the dress," and the clerk began to make out a sales slip. The plaintiff's sister, who had a charge account with the defendant, suggested that as the plaintiff might need some extra money during the holidays, she might charge the dress to her account. The plaintiff decided to do this, and the clerk was so instructed and made out a sales slip for the charge transaction, in the name and address of the plaintiff's sister, and in which it is stated that the dress was purchased by the sister. The dress was then delivered to the plaintiff, who took it to her home.

The plaintiff wore the dress for about two hours on the next day, which was Christmas. On New Year's Eve she wore it for about five hours. On New Year's Day she wore it while attending a moving picture performance. In the theatre she kept on her fur coat for a while and was conscious that she perspired more or less. Other articles of clothing that she had on had been worn by her for a considerable period, with the exception of a slip, which did not come in direct contact with any portion of her body. Before she left the theatre, she began to experience an occasional itching on her back and neck. The dress was described as covering her back and neck and as having a "V" neck and sleeves extending to the elbow. When she reached her home, the itching sensation had increased. She then took off her clothes and washed herself with soap and water, but did not use any new soap. She used a wash cloth and observed that in washing her neck and the upper part of her back, there was a pink color on the wash cloth that was the same shade of pink as appeared in the dress. She washed the affected areas several times, using soap and water at first, and then witch hazel. There was a pinkish discoloration on her neck and on portions of her back, shoulders and arms. The next day the "itch" extended over her shoulders and chest, and she observed a pink rash, characterized by blotches, extending over her back and chest and covering exactly the areas that were in direct contact with the dress that she had worn the previous evening. She observed that there was no discoloration or itch on any portion of her body that had not been in direct contact with the dress. Later on, the rash extended down her arms and upward from her neck to her ears, so that the rash and "itchiness" covered those areas of her body that had been in direct contact with the dress and "also the following areas, the back of her neck up to her ears and her arms from the elbows to her wrists." She consulted a physician. On a subsequent visit to another physician she wore the dress and coat that she had worn when she was in the theatre. Upon his advice, she "discarded" the dress, and under his treatment, she gradually recovered. At the time she bought the dress, her health was good and she had never before had any skin ailments.

The dress in question was "delustered" rayon, that is, a rayon from which the luster had been taken so as to make it look like wool or cotton. The plaintiff had worn colored rayon dresses before. There was medical testimony that the plaintiff's skin disclosed a definite dermatitis, which stopped at a straight line across the chest at exactly the level or height to which the underclothes came that the plaintiff was wearing; that the plaintiff's physical examination was negative, except for the skin; that contact dermatitis is classified in the allergy group of disturbances which are not due to anything taken in or inhaled, but are due to something with which the skin comes in contact, and that in the opinion of the witness the cause of the plaintiff's dermatitis was the dress that she purchased.

The defendant contends that, upon this evidence, the sale was made to the plaintiff's sister and that, as a consequence, the contract not having been made with the plaintiff, she cannot recover. See Gearing v. Berkson, 223 Mass. 257 , 260. We are of opinion, however, that this contention cannot be maintained. Up to the time the sales slip was about to be made out, there seems to have been no question but that the plaintiff was the intended purchaser. She was looking for a dress. She tried it on. She "purchased" it and it was delivered to her. We think that a sale to the plaintiff could have been found, and that what the defendant undertook to do was to look to her sister for payment.

The record discloses no direct evidence that the dress in question contained any poisonous dye, or anything else that would injure the skin, and the defendant contends that the case at bar comes within the case of Bradt v. Hollaway, 242 Mass. 446 . In that case it was said that the record failed to disclose a case of external poisoning that was due to some noxious substance in the dyed fur which the plaintiff alleged was the...