Arnold v. May Department Stores Co.

• Decision Date: 30 July 1935
• Docket Number: No. 32863.,32863.
• Citation: 85 S.W.2d 748
• Parties: PANSY ARNOLD v. MAY DEPARTMENT STORES COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

85 S.W.2d 748

PANSY ARNOLD v. MAY DEPARTMENT STORES COMPANY, a Corporation, Appellant.

No. 32863.

Supreme Court of Missouri.

Division One, July 30, 1935.

Appeal from Circuit Court of City of St. Louis. — Hon. Claude O. Pearcy, Judge.

AFFIRMED.

Carter & Jones and James E. Garstang for appellant.

(1) The court erred in refusing the demurrers to the evidence requested by defendant. (a) Plaintiff's condition resulted from an idiosyncrasy and not from the use of a product containing inherently dangerous and poisonous ingredients. Therefore defendant is not liable. Karr v. Inecto Co., 160 N.E. 398; Drake v. Herman, 185 N.E. 685; Flynn v. Bedell Co., 136 N.E. 252; Bradt v. Holloway, 136 N.E. 254; Gould v. Slater Woolen Co., 147 Mass. 315, 17 N.E. 531. (b) Plaintiff knew better than anyone of her idiosyncrasy and peculiarities of constitution, and in permitting dye other than the one she had found to be safe to be used assumed the risk. The doctrine "volenti non fit injuria" applies. Atherton v. Kansas City Coal & Coke Co., 81 S.W. 223; Frost v. Josselyn, 62 N.E. 469; Gray v. Union Elec. Lt. & Pr. Co., 282 S.W. 490; Haselmeier v. Ry. Co., 201 N.W. 257; Churchill v. Bauman, 30 Pac. 770. (c) Defendant's operator used the skill ordinarily used, and followed the method ordinarily employed by experienced beauty parlor operators and was not required to anticipate the exceptional or what in the general experience of prudent operators had never happened before. Guffey v. Ry. Co., 53 Mo. App. 462; Holt v. Ry. Co., 84 Mo. App. 443; Hysell v. Swift & Co., 78 Mo. App. 39; Brewing Assn. v. Talbot, 141 Mo. 674; Pecos & N.T. Ry. Co. v. Collins, 173 S.W. 250; Pinkley v. Railroad Co., 92 N.E. 896; Canfield v. Iowa Dairy Separator Co., 154 N.W. 434. (2) The issues upon which the case was submitted were not defined and the jury was not fully instructed as to the law applicable to such issues. This constitutes reversible error. Dorman v. Ry. Co., 75 S.W. (2d) 854. (3) In submitting the case to the jury after refusing defendant's withdrawal instructions E, F, G, H, and I, when plaintiff did not prove all assignments of negligence contained in her petition, and offered only an instruction on the measure of damages, the court committed reversible error. Hollansbee v. Pevely Dairy Co., 38 S.W. (2d) 273; Crossno v. Term. Railroad Assn., 41 S.W. (2d) 796; Willis v. Appelbaum, 26 S.W. (2d) 823. (4) The court erred in refusing defendant's Instruction D. The instruction should have been given so that the jury would have in mind the care required of defendant's operator. Brewing Assn. v. Talbot, 141 Mo. 674; Hysell v. Swift & Co., 78 Mo. App. 39; Guffey v. Ry. Co., 53 Mo. App. 462; Holt v. Ry. Co., 84 Mo. App. 443. (5) The court erred in permitting counsel for plaintiff to argue to the jury that the pamphlet of the manufacturer of Notox, not offered in evidence, contained the statement that Notox was harmful to some people. Stroud v. Doe Run Lead Co., 272 S.W. 1080; Torreyson v. United Rys. Co., 144 Mo. App. 639; Jackman v. Ry. Co., 206 S.W. 244; Pledge v. Griffith, 199 Mo. App. 316. (6) The court erred in refusing new trial on account of newly discovered evidence brought to the court's attention in the affidavit filed with defendant's motion. Allen v. Railroad Co., 167 Mo. App. 498. (7) The verdict is still excessive, and the court erred in not granting a new trial and in ordering a remittitur of only $3000 and in rendering a new judgment against defendant in the sum of $9500.

Edward J. Houlihan for respondent.

(1) The demurrers to the evidence were properly overruled. Reuter v. Terminal Ry. Assn., 261 S.W. 714; Benton v. St. Louis, 248 Mo. 98, 154 S.W. 476; Cunningham v. Pease House Furnishing Co., 74 N.H. 435, 12 Am. St. Rep. 979, 69 Atl. 120; Freeman v. Zirger, 125 Misc. 288, 210 N.Y. Supp. 712; Lesick v. Proctor, 150 Atl. 618; Pratt v. Edwards & Sons, 237 N.Y. Supp. 372; Cahill v. Inecto, 208 N.Y. App. Div. 191; Reed v. Rosenthal, 276 Pac. 684; Gerkin v. Brown & Sehler Co., 177 Mich. 45. (a) The doctrine of "volenti non fit injuria" does not apply. Plaintiff had never heard of Notox; the attendant assured her it was harmless. Defendant's answer was a general denial; no plea of assumption of risk or contributory negligence. Reed v. Rosenthal, 276 Pac. 684. (b) Defendant's operator was required to use the skill and method employed by prudent and ordinarily careful beauty parlor operators. This was for the jury. Instruction 1 covered this. Fairchild v. Bichler, 190 S.W. 32. (2) The jury was fully instructed as to the issues in this case and the basis of defendant's liability. Dorman v. Ry. Co., 75 S.W. 854. (3) The court properly refused defendant's withdrawal instruction E, F, G, H and I. Hollansbee v. Pevely Dairy Co., 38 S.W. (2d) 273; Bick v. Wurst Coal & Hauling Co., 293 S.W. 449; Dorman v. Ry. Co., 75 S.W. 854. (4) Instruction D was properly refused, as the court instructed the jury on the degree of care required of defendant's operator in Instruction 1. (5) This assignment of error cannot be considered on appeal as it was not set out in defendant's motion for new trial. Gamblin v. Wells, Est., 75 S.W. (2d) 867. Argument by plaintiff's counsel was proper, as the matter argued was in evidence. (6) The affidavit was false and a new trial properly refused on that ground. The granting of a new trial was in the discretion of the trial court. Cook v. Railroad Co., 56 Mo. 380; Gerth v. Christy, 231 S.W. 639. (7) The verdict in this case is not excessive.

PER CURIAM:

Plaintiff sued to recover for injury, resulting from dermatitis, alleged to have been caused from a hair dye called Notox, applied by an operator of the defendant. The jury returned a verdict for plaintiff for $12,500. Motion for new trial was filed, but was overruled on condition that a remittitur of $3000 be made, which was done, and judgment went for plaintiff for $9500, and defendant appealed.

The petition charges upon five grounds of negligence, viz.: (1) That defendant knew, or by the exercise of ordinary care, could have known, from the information given to defendant by plaintiff, that plaintiff's hair, scalp and skin were susceptible and apt to be burned or affected by Notox, but nevertheless, defendant negligently used Notox; (2) that although defendant knew, or by the exercise of ordinary care, could have known, that plaintiff's scalp, skin and body were susceptible and apt to be burned by the use of Notox, nevertheless, defendant negligently and carelessly used Notox in dyeing plaintiff's hair; (3) that defendant, after being informed by plaintiff that she had suffered from a skin eruption on a previous occasion when hair dye, other than henna had been used, knew, or by the exercise of ordinary care, could have known, by making tests on a small area of the scalp or skin, with said dye, whether or not Notox would likely poison or affect plaintiff's scalp, skin and body, but that defendant failed to make said test; (4) that although defendant advised plaintiff that it would use Notox in dyeing her hair, yet defendant used another liquid or chemical, unknown to plaintiff, in connection with Notox, in dyeing her hair; and (5) that defendant, after being informed by plaintiff that she had suffered from a skin eruption on a previous occasion when hair dye, other than henna, had been used, knew, or by the exercise of ordinary care, could have known, that by sending a sample of plaintiff's hair to the makers of Notox, that defendant could have ascertained if Notox was apt to poison plaintiff's scalp, skin and body, and that defendant failed to do so. The answer is a general denial.

Defendant assigns error: (1) On the refusal of its peremptory request for a directed verdict at the close of the whole case; (2) on the instructions offered by defendant and refused by the court; (3) on the action of the court in permitting plaintiff to go to the jury without any instructions except on the measure of damages; (4) on the refusal of a new trial because of newly discovered evidence; (5) on the argument of counsel; and (6) on an alleged excessive verdict.

[1] We will rule the assignments in the order stated. Plaintiff, a married woman, thirty-four years of age, on August 16, 1929, went to the defendant's beauty shop in St. Louis, to get advice about having dyed a streak of gray in her hair. She went to the desk of the young lady in charge of appointments and was sent to the operator in booth 17. Plaintiff testified that she told the operator that since she was very young, a streak of gray had run through her hair from front to rear and about the middle. Her hair was black and she told the operator that she had used black henna since she was about nineteen years of age; that "henna took such a long time," she thought, "in the years gone by," something had been found that would not be harmful; that she was very much afraid of dyes, because, one time, about ten years prior, she had gone to a hairdresser in Seattle, Washington, and had "some sort of hair dye on this spot" and had been caused a great deal of trouble; that it had caused her head to break out and that she had intense itching and that because thereof, she had not been able to get out of the house for several days, and she told the operator that she did not want a repetition of this experience. The operator told plaintiff about the hair dye called Notox; that she used it on a great many people and that it was very successful and perfectly harmless, and plaintiff decided to have Notox put on. The operator got the dye ready and put on rubber gloves, and thereupon, the plaintiff said to the operator: "Well, if you have to put on rubber gloves to put that on my hair, what is it going to do to my scalp?" and the operator answered that she had used "these different things all day long" and that if she did not protect her hands, they would be "all dried out;" that what she was using was not "anything but peroxide and...