Beckett v. F.W. Woolworth Co.

• Decision Date: 04 June 1941
• Docket Number: No. 25985.,25985.
• Citation: 34 N.E.2d 427,376 Ill. 470
• Parties: BECKETT v. F. W. WOOLWORTH CO.
• Court: Illinois Supreme Court

376 Ill. 470

34 N.E.2d 427

BECKETT

v.F. W. WOOLWORTH CO.

No. 25985.

Supreme Court of Illinois.

April 15, 1941.

Rehearing Denied June 4, 1941.

Action by Phyllis Beckett against the F. W. Woolworth Company for breach of an express warranty of a cosmetic sold to plaintiff by defendant. A judgment for plaintiff was affirmed by the Appellate Court, 306 Ill.App. 384, 28 N.E.2d 804, and defendant appeals.

Judgments reversed.Appeal from Third Division, Appellate Court, First District, on Appeal from Superior Court, Cook County; Martin M. Gridley, Judge.

Kirkland, Fleming, Green, Martin & Ellis and Ednyfed H. Williams, all of Chicago (William H. Symmes, David Jacker, Albert E. Hallett, Jr., and Charles M. Rush, all of Chicago, of counsel), for appellant.

Murphy O. Tate and Oscar Jordan, both of Chicago (Franklin J. Stransky, of Savanna, of counsel), for appellee.

WILSON, Justice.

The plaintiff, Phyllis Beckett, filed a complaint in the superior court of Cook county against the defendant, the F. W. Woolworth Co., seeking damages for breach of an express warranty alleged to have been made by the defendant incident to the sale to her of a cosmetic or toilet preparation known as ‘Pinaud's ‘612’ Creamy Mascara.' Plaintiff charged that the defendant warranted this preparation was pure, harmless, free from any poisonous substance or germs, and that it was fit and proper for the purpose of coloring and blackening her eyelashes. Answering, the defendant denied the material allegations of the complaint and, by an amendment to its answer, averred that the mascara was a standard preparation manufactured and sold to the trade by a manufacturer of cosmetics, Pinaud, Inc.; that the preparation is sold generally in all stores where cosmetics are sold; that, in particular, it is sold in the original packages in which it is received from the manufacturer, and that the tube of mascara purchased by plaintiff was not manufactured, prepared, filled or packed by the retailer. At the conclusion of the plaintiff's evidence, and again at the close of all the evidence, the defendant filed motions for a directed verdict. Both motions were denied. The jury returned a verdict of $11,250 in favor of the plaintiff. Thereafter, the defendant made motions for judgment non obstante veredicto and a new trial. The first motion was denied, the court ordered a remittitur of $5250 to be entered within twenty days, and if not done, announced that the motion for a new trial would be granted. Upon the remittitur being accepted, the defendant renewed its motion for a new trial and also moved in arrest of judgment. These motions were denied, and the court rendered judgment against the defendant for $6000. The Appellate Court for the First District has affirmed the judgment. Beckett v. F. W. Woolworth Co., 306 Ill.App. 384, 28 N.E.2d 804. We have granted defendant's petition for leave to appeal and the cause is before us for a further review.

Pinaud's ‘612’ creamy mascara is sold in tubes attached to cards along with small black brushes for applying the preparation. The card, tube and brush are made and distributed by Pinaud, Inc., of New York City. The tube of mascara is prepared by a machine which automatically mixes the mascara, fills and seals the tube. These are shipped to retailers, such as the defendant, in boxes containing one dozen cards. In 1937, it appears that 1,500,000 tubes were sold in various chain stores. On September 3, 1937, the plaintiff, a young woman thirty-five years of age, purchased at one of the defendant's retail stores in Chicago a tube of Pinaud's ‘612’ mascara from the cosmetics counter of the ‘Toilet Article Department’ which contained approximately seven hundred articles, including four types of mascara. It appears she had patronized this store about eight years and had used the same preparation for ten or twelve years. Plaintiff testified that on the day named she engaged in conversation with the saleswoman concerning the mascara; that she picked up the card and told the clerk she would take it; that she bought the mascara, paid the purchase price, ten cents, and the saleswoman remarked, ‘Phyllis, don't you think you are pretty enough without it?’; that she replied, ‘Well, this would help,’ and, further, ‘This mascara is safe, isn't it?’; that the clerk answered, ‘It is on the tube, it says harmless;’ that she, plaintiff, then said, ‘I will take it.’ The plaintiff then added that she had never experienced any difficulty with her previous purchases of this same product. Upon re-direct examination, plaintiff testified that at the time of the purchase in question the clerk stated that Pinaud's preparation was ‘good mascara, she thought it was the nicest and no trouble with it.’ Upon re-cross examination, plaintiff testified that the saleswoman asked her, ‘Have you been using this 612 Pinaud's?’ that she answered, ‘It is pretty good,’ and that the saleswoman added, ‘It is supposed to be the best.’ When plaintiff's attention was directed to her different versions of the transaction she testified that all the clerk said was, ‘Not good, supposed to be the best,’ and that she had already placed the mascara in her purse preparatory to paying for it when this statement was made. Defendant's employee who sold the mascara to plaintiff testified that she did not say Pinaud's ‘612’ was the best available, safe, or pure, and, further, that she did not recommend its purchase. As plaintiff was applying the mascara to her eyelashes on September 4, some of the preparation fell into her right eye. A painful and admittedly serious eye injury was suffered.

The plaintiff rests her claim solely on the ground defendant made an express warranty that the mascara was ‘runproof and harmless.’ A recognized distinction obtains between an express warranty and an implied warranty. An express warranty is one imposed by the parties to the contract and is a part of the contract of sale, whereas an implied warranty is not one of the contractual elements of an agreement but is, instead, imposed by law. Section 15 of part 1 of the...