Bennett v. Pilot Products Co.

• Citation: 235 P.2d 525,120 Utah 474,26 A.L.R.2d 958
• Decision Date: 18 September 1951
• Docket Number: No. 7524,7524
• Parties: , 26 A.L.R.2d 958 BENNETT, v. PILOT PRODUCTS CO., Inc.
• Court: Utah Supreme Court

Page 525

235 P.2d 525

120 Utah 474, 26 A.L.R.2d 958

BENNETT, v. PILOT PRODUCTS CO., Inc.

No. 7524.

Supreme Court of Utah.

Sept. 18, 1951.

Rawlings, Wallace, Black, Roberts & Black, Dwight L. King, Salt Lake City, for appellant.

Skeen, Thurman & Worsley, Salt Lake City, for respondent.

HENRIOD, Justice.

This is an appeal from an order of the trial court granting a motion for nonsuit made by respondent at the close of appellant's evidence. The judgment is affirmed, with costs to respondent.

Appellant alleged (1) a breach of warranty by and (2) negligence on the part of respondent in distributing, without warning, a permanent wave lotion unfit for the use for which it was intended, and containing irritants dangerous to users, which facts respondent knew or should have known, and which irritants injured appellant, who used the lotion. The warranty phase was abandoned at pre-trial and the case was tried to the jury on the negligence theory.

Appellant was a beautician from 1941 to 1946, in which latter year she formed a partnership with another girl. Prior thereto she had suffered no skin affliction. The partnership purchased some of respondent's lotion for use in its shop. The lotion, containing ammonium thioglycolate, an ingredient common to most cold wave solutions and ordinarily harmless, was applied to patrons' hair along with a powder fixative which accompanied it, which fixative contained potassium bromate, also ordinarily harmless. The two, according to the manual of instructions, were to be applied with bare hands, and the whole process was controlled by an electrical device, adjusted according to hair types. During a week's use, appellant used the products 7 or 8 times, whence blisters and inflammation appeared between her fingers, which in turn spread to her arms and shoulders. The ailment was diagnosed as dermatitis, resulting in appellant's hospitalization and the eventual desertion of her profession. Patch tests conducted by her own expert witness established the facts that she did not react unfavorably either to the lotion or the fixative, but did to a mixture of the two. Her use of a protective cream and wearing of rubber gloves only aggravated the disorder. Return to the beauty shop after hospitalization led to increased irritation. Obtaining employment in a dye plant gave no relief, since mere handling of fabrics increased her skin irritation. Thereafter she sold her interest in the shop and pursued beauty work no longer. The remaining partner continued to use respondent's products without any ill effects.

The only evidence tending to indicate that the lotion was harmful to anyone else was appellant's own testimony that she had observed soreness on her partner's hands after the latter had used the products, and that one patron suffered two or three little scalp burns, obviously not the result of allergy, but the result of heat, which is quite dissimilar from appellant's ailment. Significantly, on cross-examination, she admitted having testified previously on deposition that her partner had not suffered any injury from such use. Significant also is the fact that her partner failed to testify on deposition that she was affected by use of the products.

No other evidence revealed that the lotion, the fixative or a mixture of the two contained any harmful ingredient, except that ammonium thioglycolate produced a reaction in but one allergic woman in 1,000 using it. Nor was any showing made of knowledge on the part of respondent as to the dangerous nature of any ingredient such as might charge respondent with knowledge thereof imposing upon it a duty to warn users. Farley v. Edward E. Tower Co., 271 Mass. 230, 171 N.E. 639, 86 A.L.R. 941; Zirpola v. Adam Hat Stores, Inc., 122 N.J.L. 21, 4 A.2d 73. No evidence was forthcoming that would render reasonably foreseeable the peculiar sensitivity or idiosyncracy of the appellant. The fact that some months after appellant's injury respondent added to its instructions for use of its products the employment of rubber gloves does not establish or tend to establish knowledge of danger at the time of injury, or that any ingredient was then harmful. Rather, it seems to negative such knowledge and well may have evidenced a desire to prevent injury even to the allergic, although, as has been seen, appellant's own peculiar sensitivity responded adversely even to the use of rubber gloves.

An expert called by appellant diagnosed her ailment as dermatitis, resulting from an allergy. Further, that allergy produces no immediate effect, but reveals itself some days after original exposure, as was the case with appellant. That she was allergic to the mixture is beyond dispute, and it becomes unnecessary, therefore, to discuss the question raised by counsel as to causation, or to determine whether appellant should be denied recovery on an independent basis due to variance between pleading and proof, she having relied solely on the contention that the lotion was dangerous, whereas the proof showed that a mixture of the lotion and the fixative was the cause of her difficulty.

Appellant appeared to be sensitive to the mixture much the same as some people respond to strawberries,--a...