Bel v. Adler

Decision Date01 November 1940
Docket Number28501.
Citation11 S.E.2d 495,63 Ga.App. 473
PartiesBEL v. ADLER
CourtGeorgia Court of Appeals

Syllabus by the Court.

In action against copartnership operating a department store by customer for injuries allegedly caused by a cold cream purchased at store in original unbroken package, no cause of action based on negligence was set out, in absence of an allegation that the cold cream was put up or manufactured by the copartnership, or that the cold cream was manufactured by a manufacturer who was not reputable.

A dealer does not impliedly warrant that an article or goods in a perfect appearing original package, manufactured by a reputable manufacturer, and in practical use in retail trade so as not to be examinable for imperfections, are suitable for the purposes intended, and the only warranty by the dealer in such circumstances is that the article or goods are manufactured by a reputable manufacturer.

In action against copartnership operating a department store by customer for injuries allegedly caused by a cold cream purchased at the store in original unbroken package allegations that employee of copartnership stated that store was highly recommending the use of the cold cream to its trade, that it was wonderful, that it was pure, beneficial harmless, and that it would not harm the most tender skin were insufficient to show an "express warranty" on the part of the copartnership, and amounted to no more than a recommendation of the cold cream.

To charge a dealer with express warranty of goods, the circumstances must be sufficient to show not only that buyer relied on dealer's statements as being an express warranty, but that the dealer intended them as such, and knew that the buyer was so relying, or would be justified in so doing.

The court did not err in sustaining the general demurrer to the petition as amended.

Ruth W Bel sued "Leopold Adler," a copartnership, for damages. The petition alleged: "That said copartnership is engaged in a general mercantile business as department store in the City of Savannah, Chatham County Georgia, and conducts a department in which toilet goods, cosmetics, face creams, and other like products are sold to the public. That on or about December 2, 1937, petitioner was shopping about in this department of said defendants' store when a Miss Madge, whose last name is not known to petitioner but well known to defendant, a servant and employee of defendants, acting within the scope of her employment, solicited petitioner with the view to inducing petitioner to purchase a cold cream known as 'Endocreme.' Petitioner was asked whether she had tried such cream and she stated that she had not and defendants' employee stated that the store was highly recommending the use of the cream to its trade, that they had sold large quantities and it was just wonderful. Petitioner asked said employee if said cream was harmless and said employee answered that it was pure, beneficial, and harmless, and that it would not harm the most tender skin, and if it were not such the store would not sell or recommend it. Thereupon, your petitioner relying upon the foregoing representations and the defendants' experience and judgment, and assuming that the defendant would not sell or offer for sale a product not reasonably suited to the use intended, purchased a jar of said 'Endocreme' at a price of $3.50. That the instructions accompanying said cream represented said cream as follows: 'Endocreme affects only the skin--nothing else. It has no effect on the other organs, nor on your nervous system. It works only on the areas where you apply it."'

The petition further alleged damages to the plaintiff by reason of ill effects from the use of the product, and charged negligence in the following particulars: "(a) In soliciting petitioner with a view to inducing her to purchase a cream containing quantities of chemicals, powerful and dangerous ingredients, drugs, or poisons, in such proportions as to be dangerous to human life, when used as directed as hereinbefore fully set out, and selling the same to petitioner. (b) In recommending to petitioner the use of said cream and representing the same to be harmless, whereas such representations were false, and defendants knew, or in the exercise of ordinary diligence, should have known, that these representations were falsely and recklessly made, the defendants knowing that petitioner would rely and act upon such representations, which petitioner did, as will more fully appear hereinabove. (c) In selling to petitioner an article of merchandise not reasonably suited to the use for which it was intended, the said cream containing estradiol in such quantities as to be dangerous to human life and health, when used strictly in accordance with directions. (d) In selling petitioner an article not of merchantable quality, the said article, to wit: cream, being a dangerous and poisonous preparation. (e) In putting a cream upon the market which is inherently dangerous, in exposing the same for public sale, use and consumption, soliciting others to use it, recommending it as a harmless face cream, giving assurance that it was pure, beneficial, and not harmful, when in fact it was harmful, deleterious, pernicious, and defendants had made no test or investigation to determine whether or not said cream was in fact harmful."

General and special demurrers to the petition were filed. Certain special demurrers were sustained and the plaintiff was given thirty days in which to amend. The petition was amended, in addition to other allegations, as follows: "Your petitioner has no positive knowledge as to who manufactured or put up said preparation known as 'Endocreme' and that these facts are or should be peculiarly within the knowledge of the defendants. Petitioner shows that purported manufacturer of said article is Hiresta Laboratorys Inc., New York, N.Y., but this information is derived from printed matter accompanying said preparation. That said preparation was offered to petitioner in a screw top unsealed container urn shaped, approximately four inches tall, and being a chemical preparation, a superficial or visual inspection of the contents would shed no light upon its dangerous potentialities. That the sale was not induced by any written or printed matter contained on or with said preparation, but solely upon and because of solicitation and representations made by defendants' employee. That she was lulled into a false sense of security by said representations, she relying upon the truth thereof, and acting upon said representation to her damage. That petitioner has no positive knowledge as to who printed or issued the instructions accompanying said cream, but that defendants' servant assured petitioner, and she relied upon such representation, but that there was nothing complicated about the use of the cream, and that it was pure and beneficial and could be used on any part of the body in the same manner and in any quantity as any good wholesome face cream. That defendants knew, or should have had knowledge or notice amounting to imputed knowledge, of the dangerous potentiality of said 'Endocreme' for the reason that defendants directly solicited petitioner and made positive representations as to the purity thereof; and that defendants should or ought to have known of the contents of said unsealed container, or else refrained from selling it and...

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12 cases
  • Sparks v. Total Body
    • United States
    • Alabama Supreme Court
    • 17 Julio 2009
    ...110 Ga.App. 101(2), 137 S.E.2d 674 (1964); Maroney v. Montgomery Ward & Co., 72 Ga.App. 485, 34 S.E.2d 302 (1945); Bel v. Adler, 63 Ga.App. 473(2), 11 S.E.2d 495 (1940). According to that doctrine, no warranty of merchantability applied as to the retailer of goods in their original packages......
  • Pierce v. Liberty Furniture Co., Inc.
    • United States
    • Georgia Court of Appeals
    • 2 Febrero 1977
    ...110 Ga.App. 101(2), 137 S.E.2d 674 (1964); Maroney v. Montgomery Ward & Co., 72 Ga.App. 485, 34 S.E.2d 302 (1945); Bel v. Adler, 63 Ga.App. 473(2), 11 S.E.2d 495 (1940). According to that doctrine, no warranty of merchantability applied as to the retailer of goods in their original packages......
  • John A. Brown Co. v. Shelton
    • United States
    • Oklahoma Supreme Court
    • 22 Octubre 1963
    ...others) one case in the discussion of express warranty under Proposition V that we think should be dealt with. It is Bel v. Adler, 63 Ga.App. 473, 11 S.E.2d 495, which the author of the Annotation at 79 A.L.R.2d 431, cites opposite footnote 20, on page 441 thereof, as authority for the foll......
  • Carlay Co. v. Federal Trade Commission
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 15 Febrero 1946
    ...Kidder Oil Co. v. Federal Trade Commission, 7 Cir., 117 F.2d 892; Rosenbush v. Leonard, 242 Mass. 297, 136 N.E. 341; Bel v. Adler, 63 Ga.App. 473, 11 S.E.2d 495; Bartlett v. Hoppock, 34 N.Y. 118, 88 Am.Dec. 428; Shawen v. District Motor Co., D.C.Mun.App., 34 A.2d 29; Spear Stove & Heating C......
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