Corneliuson v. Arthur Drug Stores, Inc.

• Decision Date: 09 November 1965
• Citation: 214 A.2d 676,153 Conn. 134
• Court: Connecticut Supreme Court
• Parties: , 2 UCC Rep.Serv. 1144 Leah E. CORNELIUSON (Brunette) v. ARTHUR DRUG STORES, INC., et al. Supreme Court of Errors of Connecticut

Page 676

214 A.2d 676

153 Conn. 134, 2 UCC Rep.Serv. 1144

Leah E. CORNELIUSON (Brunette) v. ARTHUR DRUG STORES, INC., et al.

Supreme Court of Errors of Connecticut.

Nov. 9, 1965.

Snow G. Munford, Hartford, for appellants (defendants).

Robert Y. Pelgrift, Hartford, for appellee (plaintiff).

Before KING, C. J., and ALCORN, SHANNON, HOUSE and COTTER, JJ.

HOUSE, Associate Justice.

This action was tried on the count for breach of implied warranty, and it is agreed by the parties that the applicable law is that stated in Crotty v. Shartenberg's-New Haven, Inc., 147 Conn. 460, 467, 162 A.2d 513.

The case arose from the plaintiff's use of a hair waving lotion known as Ogilvie Sisters Home Permanent. On January 2, 1958, the plaintiff purchased the lotion from the defendants, and her suit is predicated upon the claim that, as a result of her use of the lotion on January 4, she sustained a severe dermatitis with concomitant physical and neurotic injuries. The jury returned a plaintiff's verdict, which the trial court refused to set aside. The defendants have appealed, assigning as error three rulings on the admissibility of evidence and the denial of their motion to set aside the verdict. In the motion they maintained that the verdict is not supported by the evidence and the law on the issue of liability.

In Crotty v. Shartenberg's-New Haven, Inc., supra, we had occasion to consider the development of the law in the field of products liability and analyze the provisions of the Connecticut statute on implied warranties. Cum.Sup.1955, § 2858d; Rev. 1958, § 42-14 (see General Statutes §§ 42a-2-314, 42a-2-315). ¹

In that case, we held (p. 464, 162 A.2d 513) that under our statute there may be an implied warranty that the goods sold shall be reasonably fit for a particular purpose, or that the goods shall be of merchantable quality and that the existence, nature and extent of either implied warranty depends on the circumstances of the case. We noted that some jurisdictions hold that if the article sold can be used by a normal person without injury, there is no breach of the implied warranty of reasonable fitness, while others adopt the theory that the seller is not absolved from liability under the implied warranty created by the statute by the mere fact that only a small proportion of those who use the product suffer injuries from its use. We concluded (p. 467, 162 A.2d p. 516) that the term 'reasonable fitness' must, of necessity, be considered one of degree and that the term must be 'related to the subject of the sale.' Rejecting the rule limiting the application of the term 'reasonable fitness' to a class or group designated as normal persons, we adopted the test of injurious effect to 'an appreciable number of people.' We held that not only the causal connection between the product and the injury must be established but also the plaintiff must be a member of a class who would be similarly affected by the product, identifying that class as an appreciable number of people.

In the course of the opinion (pp. 467, 468, 162 A.2d pp. 516, 517) we used the following language: 'To establish a breach of the warranty, the plaintiff must show (1) that the product contains a substance or ingredient which has a tendency to affect injuriously an appreciable number of people, though fewer in number than the number of normal buyers, and (2) that he has, in fact, been injured or harmed by the use of the product. * * * The burden is on the plaintiff to establish these facts. Proof of the harmful propensities of the substance and that it can affect injuriously an appreciable number of persons is essential to his case. * * * If a buyer has knowledge, either actual or constructive, that he is allergic to a particular substance and purchases a product which he knows or reasonably should know contains that substance, he cannot recover damages for breach of an implied warranty. Nor can he recover if he suffers harm by reason of his own improper use of the article warranted. * * * When a manufacturer puts into a product to be sold for human use a substance which has deleterious qualities and a tendency to harm an appreciable number of its users, the manufacturer, and not the user, should shoulder the risk of injurious consequences. The same risk should be borne by the retailer who sells the article to a prospective user who, relying on the retailer, is entitled to believe that the article is reasonably fit for the purpose for which it is sold.'

It is the contention of the defendants that the words 'substance' and 'ingredient' as used in defining the rule must be considered in context with the words 'product,' 'article' and 'goods,' so that the test of injurious tendency is applied to the end product, including, of course, any incorporated substance or ingredient in the strength or quantity used in the product. It seems to be the...