Esborg v. Bailey Drug Co.

• Decision Date: 31 January 1963
• Docket Number: No. 36221,36221
• Citation: 61 Wn.2d 347,378 P.2d 298
• Court: Washington Supreme Court
• Parties: Kleth G. ESBORG and Bertie L. Esborg, husband and wife, Respondents, v. BAILEY DRUG COMPANY, a domestic corporation, and Nestle-Lemur Company, a foreign corporation, Appellants.

Page 347

61 Wn.2d 347

378 P.2d 298

Kleth G. ESBORG and Bertie L. Esborg, husband and wife, Respondents, v. BAILEY DRUG COMPANY, a domestic corporation, and Nestle-Lemur Company, a foreign corporation, Appellants.

No. 36221.

Supreme Court of Washington, Department 2.

Jan. 31, 1963.

Lycette, Diamond & Sylvester, Seattle, for appellants.

Thomas A. Swayze, Jr., Tacoma, for respondents.

HAMILTON, Judge.

This is a products liability case. The defendants, Bailey Drug Company, the retailer, and Nestle-Lemur Company, the manufacturer, of the product involved, are appealing from an adverse judgment.

Trial of the action was had before the court, sitting without a jury. The appeal is upon a short record (Rule on Appeal 34(3)), and contains only the testimony of the plaintiff wife (hereafter referred to as plaintiff) and two medical witnesses, one called by plaintiff and one by defendants.

The record before us does not indicate that pretrial interrogatories, and the answers thereto, contained in the transcript on appeal, were introduced in evidence, or otherwise considered by the trial court; hence, such may not be considered as evidence before us. Mick v. American Dental Ass'n, 49 N.J.Super. 262, 139 A.2d 570; 2A Barron and Holtzoff, Federal Practice & Procedure (Rules ed.) § 778, p. 390.

Plaintiff, a housewife, on December 30, 1959, purchased at defendant retailer's drugstore a hair tint preparation, produced by defendant manufacturer, marketed in a pressurized metal container, under the name of 'Nestle Streak 'N' Tips.' Plaintiff testified she voluntarily selected this product, from a display of hair tints, because of its price and her satisfaction from prior use of a product of defendant manufacturer.

The purpose of the tint, as stated upon the container, is 'For Instant Touch-Ups'--'Covers New Growth'--'Adds Dramatic Accents, Streaks And Tips.' Plaintiff used the product to retouch the front, back and sides of her hair, applying it according to the directions provided. The ingredients of the tint are not listed upon the container. A 'patch test' for possible sensitivity is not specified, the only precaution, in this regard, being a printed statement at the conclusion of the directions stating: "A hypersensitive person may experience an allergic scalp irritation from the use of this product. If you do, discontinue its use.'

Three or four hours after use, plaintiff suffered a reaction, commencing with an itching sensation upon her scalp, culminating in a condition described by her as follows:

'I looked worse than any freak in a carnival, I swear. First of all, I couldn't see for a little peek out of one eye; my eyes were completely swollen shut. I didn't have any ears because my head was swollen, big knots all over my head and bumps, my ears were swollen, my neck was swollen where you couldn't tell whether I had ears or not. My lips were swollen so badly that I couldn't drink water and I remember my nose being straight across my face; in other words, I was just like a ball completely. * * * I didn't get any relief from the medicine the doctor prescribed. The swelling lasted, as I say, 3 or 4 days, and then after that when the swelling finally did go down I was in such a mess from the blotches all over my body from my head to the calves of my legs, I was nothing but a mass of blotches, blue, red, bumps. Instead of in my twenties, I looked at least in my sixties, to be perfectly honest. * * * All in all, the worst lasted around 10 days. * * *'

Plaintiff testified she had never previously been allergic to any substances, nor suffered any untoward reaction, although she had freely used various cosmetic preparations.

Plaintiff's doctor, who examined and prescribed for her, diagnosed her condition as contact dermatitis and inflammation of the skin. He further testified that, in his opinion, plaintiff was not a hypersensitive or allergic person, and that the cause of her condition was the content of the tint. He identified five of the six ingredients of the tint as 'irritants' depending upon their concentration, and two, and possibly a third, as 'sensitizers,' one of which he suspected caused plaintiff's condition. He explained the difference between an irritant and a sensitizer as follows:

'Well, a sensitizer would probably, we find as things that would cause marked reactions in certain persons, much more liable to cause a severe reaction than in the average person; while an irritant would cause reaction essentially in the same degree in every person.'

On further examination, plaintiff's doctor testified that contact dermatitis is an inflammation of the skin resulting from contact with a substance; that other areas of the body may become sympathetically irritated, which may be characterized as a sensitivity reaction; that it is not uncommon for a person's chemical make--up to change in the course of time, whereby such person may become hypersensitive or 'sensitized' to a particular substance; that of the 10 cases of contact dermatitis he had treated in the past year, three or four had no previous history of allergy; and, that a substance is classified as a 'sensitizer' after it has caused sensitivity in a sufficient number of persons to come to the attention of a number of doctors.

Defendants' doctor, who had not examined plaintiff, testified, in response to a hypothetical question, that a person displaying symptoms similar to those of plaintiff, by definition, suffered from a hypersensitivity, since more than a simple irritation was involved.

He further testified that none of the six ingredients of the tint could be characterized as 'known sensitizers'; that five of the ingredients could be classified as irritants, categorizing one as possibly a 'primary irritant,' two as mild, and two only if used in 50 per cent or more concentration; and that a reaction, such as plaintiff's, to these ingredients would be rare and unique.

No evidence, furnished by either party, appears in the record before us, revealing the relative concentrations of the various chemical ingredients of the tint.

Plaintiff presented her case upon the theory of breach of an implied warranty, claiming neither negligence nor breach of express warranty.

Defendants affirmatively alleged allergy or hypersensitivity of the plaintiff as the cause of the reaction, and contend that, as a matter of law, there existed no implied warranties. No question of lack of privity between plaintiff and defendant manufacturer is raised.

The trial court found, inter alia: Some of the ingredients of the product were known irritants, causing some reaction in all persons if applied with sufficient strength; plaintiff was not a hypersensitive person; plaintiff's reaction was caused by use of the product and the ingredients thereof; plaintiff's reaction was not caused by hypersensitivity, or failure to use necessary precautions; and the notice upon the container did not constitute a warning, but rather constituted an expression inviting trial and error use.

From the foregoing, and other findings, to which no error has been assigned, the trial court concluded defendants had impliedly warranted the merchantability of the product, and that such warranty had been breached.

Defendants assign error to the aforementioned findings and conclusions, to denial of defendants' motion for judgment notwithstanding the oral decision, and to entry of judgment.

In their briefs, defendants pursue their assignments of error along two main routes: (1) Under RCW 63.04.160 (Uniform Sales Act § 15) there is no applicable implied warranty; and (2), in any event, there can be no recovery by an allergic or hypersensitive buyer.

In approaching defendants' first assignment of error, it is necessary to bear in mind that we are confronted with two plaintiff-defendant relationships, one defendant being the retail-seller of the product, and the other the manufacturer.

RCW 63.04.160 applies to the relationship of buyer and seller. Cochran v. McDonald, 23 Wash.2d 348, 161 P.2d 305; Williams v. S. H. Kress & Co., 48 Wash.2d 88, 291 P.2d 662. Implied warranties, if any, from manufacturer to consumer arise from the common law. La Hue v. Coca Cola Bottling, Inc., 50 Wash.2d 645, 314 P.2d 421. In Baum v. Murray, 23 Wash.2d 890, 162 P.2d 801, as between buyer and seller, we held the Uniform Sales Act to be a codification of the common law, to be so applied whenever applicable.

RCW 63.04.160 (Uniform Sales Act § 15) provides in pertinent part:

'Subject to the provisions of this chapter and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.

'(2) 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.

* * *

* * *

'(4) In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.'

The trial court held defendants had breached an implied warranty of merchantability, imposed, so far as the defendant retail-seller be concerned, by RCW 63.04.160(2). Plaintiff does not here urge the applicability of subdivision (1). Defendants content our decision in Williams v. S. H. Kress & Co., supra, controls. Upon a factual pattern similar to the present case, we there said, speaking of RCW 63.04.160 (1), (2) and (4), as relating to a...