Bish v. Employers Liability Assurance Corporation

• Decision Date: 28 June 1956
• Docket Number: No. 15910.,15910.
• Citation: 236 F.2d 62
• Parties: Mrs. Marie BISH, Appellant, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION, Limited, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

236 F.2d 62 (1956)

Mrs. Marie BISH, Appellant, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION, Limited, Appellee.

No. 15910.

United States Court of Appeals Fifth Circuit.

June 28, 1956.

COPYRIGHT MATERIAL OMITTED

Richard H. Switzer and Cleve Burton, Shreveport, La., Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, La., of counsel, for appellant.

Benjamin C. King and Charles D. Egan, Shreveport, La., for appellee.

Before RIVES, TUTTLE and JONES, Circuit Judges.

JONES, Circuit Judge.

The plaintiff, appellant here, brought suit under the Louisiana Direct Action Statute, LSA-Rev.Stat. § 22:655, against the defendant-appellee, as insurer against liability for negligence of the Toni Company, a division of Gillette Safety Razor Company. The plaintiff, in her complaint, alleged that she purchased a "Toni Home Permanent" set at a Shreveport, Louisiana, drugstore and used it in accordance with the accompanying directions. On the day following, she developed an itching scalp which was followed by skin eruptions. She then was afflicted with a kidney impairment requiring hospitalization and resulting in a severe illness during which her physician and family despaired of her life. The plaintiff, by an amended complaint, averred that she had developed leukemia which would ultimately cause her death. The plaintiff stated, on information and belief, that her condition resulted solely from the use of the Toni Home Permanent. The complaint contained an allegation that the doctrine of res ipsa loquitur applied and the doctrine was pleaded. Damages in the amount of $195,000 were sought. In addition to denials of the allegations of injury and of its insured's product as causing any injury to the plaintiff, the defendant asserted that the product "Toni Home Permanent" contained no harmful ingredients, and that if the injuries resulted from the use of the product it was because of an allergy or supersensitive skin peculiar to the plaintiff.

The case was tried before the court sitting with a jury. The plaintiff had previously used Toni Home Permanents on two or three occasions without any such prior use being followed by any bad effects. The Toni application was given to her on Thursday, March 15, 1951, by her daughter. The plaintiff had a kidney stone many years before the events from which this controversy arose. She had gall bladder trouble which kept her on a diet. She had previously been treated for high blood pressure. The evening after the day of the Toni application the plaintiff's scalp started itching. On that evening she was at the home of her daughter for a boiled ham dinner and to play Canasta. By Saturday she had developed a severe rash which started on the back of her neck and spread to her scalp. She consulted her doctor and later that day became a patient in the hospital. The rash had covered a good deal of her body and she developed nephritis or Bright's disease. On her arrival at the hospital she was given intravenously eleven milligrams of antihistamine in one thousand ccs. of distilled water. She was also given blood transfusions. About twenty months later the plaintiff developed a virus hepatitis, an inflammation of the liver resulting in or accompanied by jaundice. This was attributed by the plaintiff's doctor to having transfused the plaintiff with blood taken from one having or having had jaundice. The jaundice symptoms led her doctor to suspect that the plaintiff might have a stone in the gall duct. An operation was had and no stone was found. On this occasion the plaintiff was in the hospital between Armistice Day and Christmas of 1952. Her physician made a diagnosis of leukemia but subsequently reached the conclusion that she did not have this serious disease.

The plaintiff's doctor, who testified on her behalf, called her skin eruption "urticaria", which means, he said, skin irritation, or nettle rash, with "hives" being another word for it. Asked what were the usual causes of hives and urticaria, he answered "Everything in the world, I think, that they do, or eat, could cause it, or it could come from chemical poisonings". He expressed the opinion that the Toni treatment had caused the plaintiff's condition but conceded that she had developed a sensitivity to the Toni solution.

A verdict was returned for the defendant. Appeal was taken from a judgment on the verdict. Eight specifications of error are asserted, of which four are directed to the court's charge to the jury.

It is assigned as error that the court instructed the jury that before the doctrine of res ipsa loquitur could be applied the burden was on plaintiff to prove that the defendant's assured was guilty of an act of negligence. The court charged, as was proper, that the burden was on the plaintiff of proving by a preponderance of the evidence that the negligence of the Toni Company was the proximate cause of her injuries. The court gave a charge on res ipsa loquitur without any substantial departure from the language requested by the plaintiff. The initial charge of the court dealt with negligence and was thus stated:

"It is the duty of the jury to determine what the facts are, and after determining all of the facts, and then applying the law to them as given by The Court, you will determine if the defendant was guilty of negligence which proximately caused the injuries to this plaintiff, and if you do that then it will be your duty to return a verdict for the plaintiff. But, if, on the other hand, the defendant was guilty of no negligence that proximately caused her injuries, then it will be your duty to return a verdict for the defendant.

"The burden of proof, gentlemen, is upon the plaintiff to prove from all of the facts of evidence that the defendant company, or rather, the Toni Company, was guilty of negligence that ultimately caused her injuries, and if she has proved to you by a preponderance of the evidence that the Toni Company was guilty of negligence in the manufacture or distribution of Toni products, and that that negligence proximately caused her injuries, you would find for her. But, if she has failed to do that, then it is your duty to return a verdict for the defendant company."

On res ipsa loquitur the principal charge read:

"Now, in arriving at your verdict, gentlemen, there are certain rules of law that are applicable. It is your duty to consider and make up your verdict from all of the evidence in the case, taking into consideration also the rule of evidence that I will now give you. That rule of evidence is known as the doctrine of res ipsa loquitur, that is, to say the thing speaks for itself, and that rule of law is recognized by the courts as the law in cases similar to this, and that is this: That if you should believe, from the evidence in this case, that Mrs. Bish suffered an injury as a proximate result of the application of the Toni Wave, and if you should believe, from the evidence, that in the application of the product that she used all of the instructions put out by the Toni Company were properly and closely followed as put out, and that no tampering had been done with it, and that nothing else caused her injuries, or her condition, then, under the law, you are authorized to draw the inference of negligence. And by that is meant this: That the rule of evidence applies where plaintiff cannot be expected to have any information as to the manufacture or the ingredients or the effect of the Toni permanent, or have any information as to what might result from the use thereof, whereas the manufacturer must be assumed to have full information of all of these subjects and knows just what material and what workmanship were used, and what the effects upon a human being might be from the use of these materials and failed to make known those things to the plaintiff, and to the public. That is so particularly where the event following the use of the product is shown to be not that ordinarily expected to occur when the manufacturer uses due care in the manufacture of such a product, and it is not necessary for the plaintiff to go further and prove particular acts of omission or commission on the part of the manufacturer from which the event resulted, but the event itself makes proof of inference of negligence on the part of the manufacturer from which the jury may infer that the manufacturer was negligent, but when the plaintiff has shown that fact — if the plaintiff has shown by a preponderance of the evidence that the product was manufactured by the Toni Company, and that all of the instructions put out by the Toni Company for its application were followed substantially by the one using it, then that inference of negligence arises, but it is not conclusive. It is an inference of negligence that the plaintiff is entitled to have received without further proof.

"Then the burden of proof shifts to the defendant, and, if the defendant proves that it was not negligent in the manufacture, preparation, or distribution of the product, and if it appears to your satisfaction that it was not guilty of negligence, then that inference of negligence vanishes and fades away, and the defendant would be entitled to a verdict. But, unless from all of the evidence in the case, including the inference, you can say that the defendant was not guilty of any negligence — I mean that the defendant was guilty of negligence, and that that negligence proximately caused her injuries, she would be entitled to a verdict, but, if, on the other hand, considering all of the evidence, the plaintiff has failed to carry out its burden of proving by a preponderance, or the weight of the evidence, that the defendant was guilty of negligence, then the defendant is entitled to a verdict. If the plaintiff has shown that the defendant company was guilty of negligence in the preparation, or in the distribution of the product, and that negligence proximately caused her injuries, then she is entitled to a verdict.

"So that, after all, gentlemen,

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