Alberto-Culver Company v. Morgan
| Decision Date | 04 September 1969 |
| Docket Number | ALBERTO-CULVER,No. 7056,7056 |
| Citation | 444 S.W.2d 770 |
| Parties | COMPANY, Appellant, v. Lucille MORGAN et vir, Appellees. . Beaumont |
| Court | Texas Court of Appeals |
King, Sharfstein & Rienstra, Beaumont, for appellant.
Paul Higgins, Beaumont, for appellees.
This is a products liability case brought by the appellees, Lucille Morgan and husband, Sidney Morgan, against Alberto-Culver Company, appellant, to recover damages as the result of alleged injuries she sustained to her scalp after using a hair coloring known as New Dawn, manufactured by appellant.
Trial was to a jury, and, based upon jury findings of actionable negligence and breach of express warranty on the part of appellant, judgment was entered in favor of appellees against appellant in the amount of $5,509.80.
Judgment of the trial court is reversed and judgment rendered that appellees take nothing as against appellant. The parties will be designated by name or as appellees and appellant.
Appellant timely presented its Motion for Instructed Verdict on grounds that, inter alia, the undisputed evidence showed as a matter of law that appellant owed no duty unto Mrs. Morgan; there was no evidence that the product, New Dawn, was not reasonably fit for its intended use by an appreciable number of persons; there was no evidence that the product, New Dawn, used by Mrs. Morgan contained any foreign substances, foreign properties, defects, or impurities of any character; the undisputed evidence showed as a matter of law that any injuries suffered by Mrs. Morgan by virtue of her use of the product, New Dawn, were brought about by an abreaction to the use thereof; and, there was no evidence that the product, New Dawn, did not result in an allergic reaction by Mrs . Morgan. This Motion for Instructed Verdict was overruled by the trial court, to which action the appellant excepted.
The case was then submitted to the jury, which returned its verdict to the effect that the failure of appellant in its television advertisements to give any warning of the dangerous effects of using New Dawn constituted material misrepresentations proximately causing Mrs. Morgan's injuries and that appellant was guilty of actionable negligence in the following respects: (1) failure to advise Mrs. Morgan of the injuries that might occur to her if she was allergic or hypersensitive to New Dawn; (2) failure to instruct as to the proper course of procedure to follow in the event of discovery of injury by the use of New Dawn; (3) use of the advertisement of 'So easy to do * * * Apply like shampoo'; (4) failure to direct adequate allergy tests to be performed prior to the use of New Dawn; (5) failure to provide information as to symptoms occurring as a result of injury from the use of New Dawn which would require medical attention; (6) supplying of misleading directions with New Dawn as to the dangers involved in its use; and (7) failure to adequately warn Mrs. Morgan of the dangers involved in using New Dawn. The jury exonerated Mrs. Morgan of contributory negligence and found that the occurrence in question was not an unavoidable accident. Special Issue No. 30 was submitted as follows:
'Do you find from a preponderance of the evidence that Mrs. Morgan's injuries, if any, were an abreaction to the product New Dawn?'
Special Issue No. 30 was answered, 'No.' Accompanying Special Issue No. 30 was the following definition:
"Abreaction', as used herein, means an unusual reaction resulting from a person's unusual susceptibility to the product or intended effect of the product in question; that is, such person's reaction is different in the presence of the product in question from that in the usual person. An abreaction is one in which an unusual result is produced by a known or theoretical mechanism of the action. An abreaction is one which could not have been reasonably foreseen in an appreciable class or number of potential users prior to April 14, 1965.'
After the return of the jury's verdict, and before entry of judgment, appellant duly filed its Motion for Judgment Non Obstante Veredicto on the following grounds, inter alia, that the undisputed evidence showed as a matter of law that appellant owed no duty unto Mrs. Morgan, and that the undisputed evidence showed as a matter of law that any injuries suffered by Mrs. Morgan were solely and alone caused and brought about as the result of allergy or hypersensitivity. Said Motion for Judgment Non Obstante Veredicto was overruled by the trial court, and judgment was entered on the verdict in favor of appellees and against appellant, to which appellant excepted.
Thereafter, appellant duly and timely filed its Amended Motion for a New Trial again using error by the trial court in overruling its Motion for Instructed Verdict and Motion for Judgment Non Obstante Veredicto; also, that the answer of the jury to Special Issue No. 30 was so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Said Amended Motion for a New Trial was overruled by the trial court.
In appellant's Points of Error Nos. 1 through 7, it has no-evidence points of error. These will be considered together. In passing upon these no-evidence points, we consider only the evidence favorable to the findings of the jury. Each and all are sustained. Such points of error are:
'FIRST POINT OF ERROR
'The undisputed evidence showing as a matter of law that Appellant owed no duty unto Appellee, Mrs. Morgan, the trial court erred in overruling Appellant's Motion for Instructed Verdict.
'SECOND POINT OF ERROR
'There being no evidence that the product New Dawn was not reasonably fit for its intended use by an appreciable number of persons, the trial court erred in overruling Appellant's Motion for Instructed Verdict.
'THIRD POINT OF ERROR
'There being no evidence that the product New Dawn used by Appellee, Mrs. Morgan, contained any foreign substances, foreign properties, defects or impurities of any character, the trial court erred in overruling Appellant's Motion for Instructed Verdict.
'FOURTH POINT OF ERROR
'The undisputed evidence showing as a matter of law that Appellant owed no duty unto Appellee, Mrs. Morgan, the trial court erred in overruling Appellant's Motion for Judgment Non Obstante Veredicto.
'FIFTH POINT OF ERROR
'The undisputed evidence showing as a matter of law that any injuries suffered by Appellee, Mrs. Morgan, by virtue of her use of the product New Dawn were brought about by an abreaction to the use thereof, the trial court erred in overruling Appellant's Motion for Instructed Verdict.
'SIXTH POINT OF ERROR
'There being no evidence that the product New Dawn did not result in an allergic reaction by Appellee, Mrs. Morgan, to her use thereof, the trial court erred in overruling Appellant's Motion for Instructed Verdict.
'SEVENTH POINT OF ERROR
'The undisputed evidence showing as a matter of law that any injuries suffered by Appellee, Mrs. Morgan, were solely and alone caused and brought about as the result of allergy or hypersensitivity, the trial court erred in overruling Appellant's Motion for Judgment Non Obstante Veredicto.'
On the box of New Dawn purchased by Mrs. Morgan is found the following:
The directions enclosed within the box of New Dawn said:
'READ THIS BOOKLET THOROUGHLY BEFORE YOU BEGIN.'
and in boldface:
'DO READ ALL THE INSTRUCTIONS BEFORE STARTING AND FOLLOW CAREFULLY .'
and finally:
'HYPERSENSITIVITY--AND HOW THE PATCH TEST PROTECTS YOU
It has long been recognized that certain individuals for undetermined reasons may be allergic or hypersensitive to foods, drugs, cosmetics or many other substances or materials that are harmless to the average person. Of the millions of women using or contemplating the use of hair coloring, a limited few may be allergic or hypersensitive to it. The method employed to detect such skin hypersensitivity is the Preliminary Patch or Skin Test, as prescribed for hair colorings under the Federal Food, Drug and Cosmetic Act. Therefore, this product carries no warranty, express or implied, as to freedom from any unfavorable effects of its use on the few who may be allergic or hypersensitive to it.
MAKE THIS PRELIMINARY PATCH OR SKIN TEST 24 HOURS BEFORE EVERY APPLICATION * * *
to ascertain whether a person is hypersensitive or allergic to this product.
1. With bland soap and water, wash an area about the size of a quarter (3/4 of an inch) on the inner fold of the elbow or behind either ear, and extending partly into the hairline. Dry by patting with absorbent cotton.
2. To prepare the test solution, mix a capful of NEW DAWN Permanent Hair Color with an equal amount of NEW DAWN Creme Lotion Developer, using materials contained in this package.
3. With an absorbent, cotton-tipped applicator, mix thoroughly and apply the test solution to the previously cleansed area.
4. Allow test area to dry. Leave uncovered and undisturbed for 24 hours.
5. Examine test area after 24 hours.
CAUTION: If any burning, itching, swelling, irritation or eruption is experienced in or around the test area at any time during the test period, you MUST NOT use this product. If test result proves negative, you may proceed with hair coloring application immediately . Do you apply this product to the hair where the scalp or adjacent area shows any evidence of abrasion, eruption, or other diseased condition. Do not use this product on eyebrows or eyelashes as medical science has not devised any safe method for determining the possible effect of hair coloring preparations on the delicate areas around the eyes and on the optic tissues.'
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