Farley v. Edward E. Tower & Co.

• Decision Date: 27 May 1930
• Citation: 271 Mass. 230,171 N.E. 639
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: FARLEY v. EDWARD E. TOWER & CO., Inc. SAME v. STANDARD PYROXOLOID CORPORATION.

271 Mass. 230

171 N.E. 639

FARLEY

v.EDWARD E. TOWER & CO., Inc.

SAME

v.STANDARD PYROXOLOID CORPORATION.

Supreme Judicial Court of Massachusetts, Suffolk.

May 27, 1930.

Exceptions from Superior Court, Suffolk County; J. F. Quinn, Judge.

Two separate actions by Sadie E. Farley against Edward E. Tower & Co., Inc., and against the Standard Pyroxoloid Corporation, tried together by judge and jury. Verdicts for plaintiff, and, plaintiff having died after verdicts, Ethel L. Farley, executrix of her will, was substituted as plaintiff. On defendants' exceptions.

Exceptions.

FIELD, J., dissenting in part.

J. C. Woodman, of Boston, for plaintiff.

J. A. Brickett and P. R. Johnson, both of Boston, for defendants.

FIELD, J.

Sadie E. Farley, herein referred to as the plaintiff, brought three actions of tort against, respectively, Marie H. Dederick, herein referred to as the hairdresser, Edward E. Tower & Co., Inc., herein referred to as the dealer, and the Standard Pyroxoloid Corporation, herein referred to as the manufacturer, to recover for personal injuries alleged to have been sustained by her while having a ‘water wave’ in a hairdressing establishment conducted by the hairdresser. The cases were tried together by a judge and a jury. In the action against the hairdresser there was a verdict for the defendant. In each of the other actions there was a verdict for the plaintiff, and the two cases are before us on the defendants' exceptions to the refusal of the trial judge to direct verdicts for the defendants and to give the instructions requested. Exceptions taken to the admission and exclusion of evidence are waived. The plaintiff died after the verdicts were rendered, and the actions are prosecuted now by the executrix of her will.

The jury would have been warranted in finding, among other facts, that the plaintiff went into the establishment conducted by the hairdresser to have her hair dressed by a method known as water waving; that in the process an attendant wet the plaintiff's hair, put eight or ten combs in it while it was went, and was drying it with hot air from an electric dryer when the combs took fire-there was a ‘sizzling noise’ and smoke, but no flame or explosion-and burned the plaintiff's head; that the combs were bought by the hairdresser from the dealer, and by it from the manufacturer who made them, and that the plaintiff's injury resulted from the use by the attendant in the hairdressing establishment of these combs in connection with heat. There was no evidence of a contractual relation between the plaintiff and the dealer or the manufacturer, injury to property, or defect in the combs.

1. It was not error to refuse to direct a for the dealer.

Whatever may be the rule applicable to other facts it is settled that a person who sells an article, which he knows is inherently dangerous to human life, limb or health, to another person, who has no knowledge of its true character, and fails to give notice thereof to the purchaser, is liable in damages to a third person who, while in the exercise of due care, is injured by a use of it which should have been contemplated by the seller. Wellington v. Downer Kerosene Oil Co., 104 Mass. 64;Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 108 N. E. 474;Kusick v. Thorndike & Hix, Inc., 224 Mass. 413, 414, 112 N. E. 1025;Guinan v. Famous Players-Lasky Corp. (Mass.) 167 N. E. 235. See Lebourdais v. Vitrified Wheel Co., 194 Mass. 341, 343, 80 N. E. 482;Leavitt v. Fiberloid Co., 196 Mass. 440, 444, 82 N. E. 682,15 L. R. A. (N. S.) 885;Tompkins v. Quaker Oats Co., 239 Mass. 147, 131 N. E. 456;Pitman v. Lynn Gas & Electric Co., 241 Mass. 322, 324, 135 N. E. 223.

The jury would have been warranted in finding facts which would render the dealer liable under this rule. There was testimony that the combs were made of pyroxoloid, which is ‘practically the same as celluloid,’ It is composed principally of pyroxylin, a ‘compound of cellulose and nitric-acid, a nitro-cellulose or guncotton.’ Flame will readily ignite pyroxylin, and it is ignitable by the direct application of heat without flame. It is ‘stable enough at ordinary temperatures, that is 70 degrees Fahrenheit.’ It ‘would ignite not at any exact temperature, it might vary anywhere from 240 degrees to 300 degrees Fahrenheit.’ ‘If it had been subjected to heat it would be partly decomposed and would be then unstable and it might ignite at a very low temperature * * * the temperature of boilding water or 212 Fahrenheit.’ There was testimony that as a ‘matter of common knowledge’ pyroxylin is ‘highly inflammable.’ ‘It is explosive-that is its character.’ When heat is applied it begins to decompose and its temperature ‘rises considerably higher than the heat that is applied to it,’ and it ‘is commonly recognized by the public at large as a substance that is dangerous when used in proximity to heat.’ From this testimony it could have been found that the combs, when sold by the dealer, were inherently dangerous to human life, limb or health. Guinan v. Famous Players-Lasky Corp. (Mass.) 167 N. E. 235. The fact that, so far as appears, they were dangerous only when heat was applied to them, does not necessarily take them out of the class of things inherently dangerous. Danger is inherent when it is due to the nature of an article and not to a defect in an article naturally harmless; but the dangerous quality of an article is none the less inherent because it is brought into action by some external force. See Boston & Albany Railroad Co. v. Shanly, 107 Mass. 568;Guinan v. Famous Players-Lasky Corp. (Mass.) 167 N. E. 235.

The evidence-especially the answers to interrogatories propounded to the dealer's officers-warranted the finding that the dealer knew that the combs were within this class of inherently dangerous things. There was testimony also from which it sould have been found that the dealer gave no notice to its purchaser, the hairdresser, orally, by marks or labels, or otherwise, of the true character of the combs and that neither the hairdresser nor the attendant in her establishment, who dressed the plaintiff's hair, had knowledge thereof.

The jury could have found that the use of the combs shown by the testimony should have been contemplated by the dealer. According to the answers to the interrogatories propounded to the dealer's officers, the combs were sold in a container or containers and each container ‘bore a representation of a woman's head with combs in place * * * and the following wording: “Vassar’ Water Wavers Contains 4 Combs Inch. Before retiring dampen the hair and insert * * * where waves are desired. In order to obtain a more perfect wave, hair must be thoroughly dried before removing wavers,” the combs ‘were not designed to be used for the dressing of hair together with a machine that was designed to produce heat’ and it was not ‘necessary to use an instrument designed to produce heat in giving water waves.’ On the other hand the hairdresser testified that in the process of water waving ‘in order to dry hair thoroughly it is necessary to use a current of warm air’ though she would not say that it was ‘impossible to water wave hair by dampening the hair before retiring, inserting the combs and allowing the hair to dry naturally.’ She ‘never did it’ and did not ‘know could be applied to a woman's attendant testified that ‘in a beauty parlor it is always done by a dryer of some kind and by heat.’ There was testimony that ‘the temperature of the heat in the form of hot air’ which could be applied to a woman's hair wthout inconveniencing her would vary from two hundred to three hundred degrees Fahrenheit. It was a fair inference from this and other evidence in the case that, according to human experience, it was likely that the combs would be used in connection with a machine designed to produce heat unless warning of the hazard was given. The jury, therefore, could have found that such use should have been foreseen by the dealer and was a...