Davidson v. Wee

• Decision Date: 07 March 1963
• Docket Number: No. 6860,6860
• Citation: 93 Ariz. 191,379 P.2d 744
• Parties: Virgie Mae (Virginia) DAVIDSON, Appellant, v. Joe WEE, dba Joe's Supermarket and Associated Grocers, Co-op, a corporation, Appellees.
• Court: Arizona Supreme Court

Page 744

379 P.2d 744

93 Ariz. 191

Virgie Mae (Virginia) DAVIDSON, Appellant, v. Joe WEE, dba Joe's Supermarket and Associated Grocers, Co-op, a corporation, Appellees.

No. 6860.

Supreme Court of Arizona, In Banc.

March 7, 1963.

Jose Del Castillo, Tucson, for appellant.

McCarty, Chandler, Tullar & Udall, Tucson, for appellees.

LOCKWOOD, Justice.

This is an appeal by plaintiff Virgie Mae Davidson from a directed verdict in favor of defendant Joe Wee, dba Joe's Supermarket, and Associated Grocers Co-op, a corporation. Taking the evidence in the light most favorable to the plaintiff as we must, Swetnam v. F. W. Woolworth Co., 83 Ariz. 189, 318 P.2d 364 (1957), the facts appear to be as follows:

Plaintiff Davidson purchased from defendant's supermarket a home permanent waving kit known as 'Pin-it', on December 27, 1957. The kit consisted of a bottle of lotion, a packet of special bobby pins, roll curlers, end papers and printed directions for its use.

The directions contained a number of cautionary statements against allowing the lotion to remain upon the skin, and that it should be wiped away immediately, and detailed instructions for putting up the hair with the bobby pins and rollers, saturating the curls and timing the period the curls should be allowed to set. Plaintiff testified that she followed all the directions, including shampooing her hair before applying the curling lotion, rinsing her hair with the curls still set, and waiting until her hair was thoroughly dry before removing the pins

When plaintiff took out the pins to comb her hair, it was 'like steel wool.' She testified that the hair was stiff and hard, and the same night a piece of it fell out. The next day she started on a journey to California, and during the trip she found two more pieces of hair which had fallen. Before the end of the trip her head began to burn and itch. Her hair continued to fall out and approximately three days after application of the lotion one long curl brushed out completely. Her usual employment was cook and hostess for special occasions, and it was necessary for her to wear a wig after her hair fell out, which was uncomfortable and aggravated the burning and itching. This condition continued well into the next June. She consulted medical advice, and incurred hospital and medical expenses in connection with the condition described. Plaintiff had been in good health prior to using the 'Pin-it'. Dr. Baker, whom she consulted about a month following application of the lotion, and who had continued to treat her till the time of trial, testified that plaintiff had an alopecia, (baldness). He stated that after considering her history, the circumstances of the use of the lotion and results of his examinations:

'Well, my diagnosis was that this patient had an alopecia probably, from her history, probably from a chemical; the chemical being in this particular case the permanent.'

A Dr. Carl Z. Berry, who had examined plaintiff on behalf of defendant Wee, testified that a patch test with the lotion had negative results; that at the time he examined her it was not possible to determine what caused the loss of hair originally, but that in his opinion the loss of hair was caused by something other than chemicals, and was a form of baldness, described as 'alopecia arreata', which was most commonly caused by nervousness. Dr. Baker on cross-examination was asked:

'Q. Doctor Baker, if a person is in normal health, has normal hair, and the product used is normal, nothing wrong with the product, in your opinion could this product cause, assuming these facts, cause a chemical hair cut?

'A. No.

'Q. And if the loss of hair in this case was due to a chemical, isn't it reasonably probable that the reason for the loss of hair would have been some peculiarity of either the person who used it or the hair itself?

'A. My answer to that question would be yes.

'Q. Now, when you first saw the lady your diagnosis was, 'alopecia of the scalp, cause to be determined?'

'A. That is correct.

'Q. In all your practice in this field in dermatology, isn't it fair to state you have never seen an alopecia such as this caused by a cold wave?

'A. That is correct.'

He further testified that plaintiff's recovery and regrowth of her hair was impeded in that an examination in April showed that her thyroid activity was low and she had a secondary anemia condition.

Plaintiff's suit against the defendants was based upon an implied warranty that the product she bought from Joe Wee's supermarket was fit for human use and could safely be used and applied externally without damage to the person; that defendant Wee impliedly warranted that the product was merchantable and fit for the purpose intended (i. e. for a 'soft, lovely wave' of the user's hair), and that defendant represented, by the directions on the package that the lotion was self-neutralizing, and that plaintiff relied upon the warranties and representation. She further alleged defendant's negligence in putting the product on sale in violation of public health and safety statutes of the state.

At the end of the plaintiff's case the court directed a verdict for defendants on the grounds (1) there was no proof of negligence, (2) no proof of breach of implied warranty, ¹ (3) that notice of breach of warranty was not given, and (4) that the evidence shows plaintiff's damage is not attributable to defendants. As to defendant Associated Grocers Co-op, the court properly directed the verdict, since neither the complaint nor plaintiff's evidence showed any connection between this defendant and the particular article sold to plaintiff.

Apparetly the trial court was of the opinion that A.R.S. § 44-214(4) ² rules out any possibility of warranty in a sale by trade name. This view does not take into consideration the effect of subsection 2 of § 44-215 ³ which reads as follows:

'Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.'

It is well established that the implied warranty of merchantable quality under § 15(2) of the sales act is applicable to the situation wherein an article is requested and sold by brand name. Botti v. Venice Grocery Co., 309 Mass. 450, 35 N.E.2d 491, 135 A.L.R. 1387, Anno. 135 A.L.R. 1393 (1941); Giant Mfg. Co. v. Yates-American Mach. Co., 111 F.2d 360 (8th Cir., 1940); Ryan v. Progressive Grocery Stores, 255 N.Y. 388, 175 N.E. 105, 74 A.L.R. 339 (1931); Williston on Sales, 3rd Ed., § 236. Merchantability within the meaning of this statute is that the article is reasonably fit for the general uses it was manufactured to serve, whereas warranty of fitness under § 15(4) relates to suitability for the specific purpose of the buyer for which fitness for general purpose may not be sufficient. Giant Mfg. Co. v. Yates-American Mach. Co., supra; Sperry Flour Co. v. De Moss, 141 Or. 440, 18 P.2d 242, 90 A.L.R. 406 (1933). These two warranties are not mutually exclusive. A warranty of fitness and a warranty of merchantability may each arise upon the same situation where the purpose for which the product is purchased is the same as the purpose for which it is generally sold. The warranties may co-exist and recovery may be founded on either. D'Onofrio v. First National Stores, 68 R.I. 144, 26 A.2d 758 (1942); Giant Mfg. Co. v. Yates-American Mach. Co., supra; Ryan v. Progressive Grocery Stores, supra. The following statement quoted in the D'Onofrio case encompasses the reasoning upon which the foregoing principles are based.

'* * * 'Merchantability means that the article sold [should] be of the general kind described and reasonably fit for the general purpose for which it shall have been sold. The buyer's particular purpose may be equivalent to nothing more than his general purpose, or it may relate to his more specific purpose. * * * Under the Sales Act a dealer who sells articles which ordinarily are used in but one way impliedly warrants fitness for use in that particular way, unless there is evidence to the contrary. This is only a warranty of merchantability.'' 26 A.2d 760.

In Brennan v. Shephered Park Pharmacy, D.C.Mun.App., 138 A.2d 494 (D.C.1957), it was held that the sale of the hair dye by brand name carried with it a warranty that it was fit for the purpose of dying hair and allegations that after the application of the dye plaintiff suffered abscesses and loss of hair raised an inference that the 'unwholesome' condition of the dye caused the injury and constituted breach of the warranty even though the user had previously used the same product without ill effects. In this case, the general purpose for which the wave lotion was sold and the particular purpose for which it was used by plaintiff Davidson were the same, that is, to place 'an attractive permanent wave' in the hair of the user. An implied warranty that it would do so in accordance with its directions arose upon the sale.

The question is thus presented whether there was any evidence that there was a breach of such a warranty. If the evidence is sufficient to support a finding that the application of the waving lotion caused the injury to the plaintiff's hair, the product necessarily was not merchantable for the general purpose for which it was sold.

The trial court held that plaintiff's injury could not have been caused by the waving lotion, and stated his basis for such conclusion:

'The only competent testimony as to what might have caused the injuries--no doubt she did suffer injuries--was the testimony of Dr. Baker, who said he had a belief that it could have been caused by the chemicals. But if you recall, when he came on the stand this morning his testimony on cross examination was, that if the person, Mrs. Davidson in this case, was in good health,...