Flynn v. Bedell Co. of Massachusetts

• Decision Date: 10 July 1922
• Citation: 136 N.E. 252,242 Mass. 450
• Parties: FLYNN v. BEDELL CO. OF MASSACHUSETTS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 450

136 N.E. 252

FLYNN

v.BEDELL CO. OF MASSACHUSETTS.

Supreme Judicial Court of Massachusetts, Plymouth.

July 10, 1922.

Exceptions from Superior Court, Plymouth County; E. B. Bishop, Judge.

Action by Margaret F. Flynn against the Bedell Company of Massachusetts for personal injuries claimed to have been due to poisonous and noxious substances transmitted from a dyed fur collar on a coat purchased from defendant. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

1. Sales k267-Express warranty held not to exclude implied warranty.

Under Sales Act, s 17, subd. 6, an express warranty that a fur collar on a coat was not dyed did not necessarily negative an implied warranty of fitness for its intended purpose.

2. Sales k273(3)-Seller held to have knowledge of purpose for which coat purchased.

Where one buying a coat for her personal wear tried it on and had necessary alterations made, the seller had knowledge of the particular purpose for which it was purchased within Sales Act, s 17, subd. 1, relative to implied warranty of fitness for intended purpose.

3. Sales k445(1)-Whether buyer of coat relied on seller's skill and judgment held a question for the jury.

Evidence held to make a question for the jury as to whether one purchasing a coat with a fur collar relied on the seller's skill and judgment that the collar was natural and not dyed and safe rather than unsafe so as to raise an implied warranty of fitness, though she participated to some extent in selecting the garment.

4. Sales k279-Implied warranty covers presence of foreign substances injurious in course of normal use of garment.

The statutory implied warranty that a coat with a fur collar was fit for the purpose for which it was bought covered a warranty against the latent presence of foreign substances in the dye which were injurious in the course of the normal use of the garment for the purpose intended.

5. Sales k445(4)-Evidence held to make question for jury as to breach of implied warranty of fitness of fur collar of coat.

Evidence as to the effect on plaintiff's neck and face of wearing a coat with a dyed fur collar purchased from defendant held to make a question for the jury as to breach of the warranty of fitness for the purpose for which the coat was bought.

6. Sales k445(1)-Examination of coat by buyer held not as matter of law to exclude implied warranty against noxious substances in dye.

It could not be ruled as a matter of law that a buyer's examination of a coat with a dyed fur collar ought to have revealed the existence of noxious substances in the dye, so as to exclude an implied warranty under Sales Act, s 17, subd. 3.

Walter B. Grant and John B. Mahar, both of Boston, for plaintiff.

Harry B. Davis, of Plymouth, and John P. Carr, of Boston, for defendant.

DE COURCY. J.

The injuries to the plaintiff's face, neck and body, in the nature of a skin disease, were alleged to be due to poisonous or noxious substances, transmitted from the dyed fur collar on a coat purchased by her from the defendant in December 1917. The case was submitted to the jury on the count in contract; and there was no motion for a directed verdict. The defendant made thirteen requests for rulings, but has argued on its brief only those numbered 4, 6, and 11, and we treat the others as waived. The main question argued is that founded on the judge's refusal to give the sixth and eleventh requests, and on the exception to his charge. It is, in substance, whether there was any evidence for the jury of an implied warranty of fitness, within the provisions of the Sales Act (now G. L. c. 106, § 17).

[1] The plaintiff testified that the saleswoman assured her that the fur was ‘black fox,’ and not dyed; that ‘we guarantee our goods,’ and if it was not all right she ‘could return the goods and get a refund.’ The defendant admits, for the purpose of this argument, that these statements were an express warranty; and that there was evidence from which the jury might find a breach of that warranty. See Sales Act, § 14. But that does not necessarily negative the existence of an implied warranty, on which the case was tried. Section 17(6) of the act provides:

‘An express warranty or condition does not negative a warranty or condition implied under this chapter unless inconsistent therewith.’

Hence the plaintiff was not limited to recovery upon such express warranty unless it can be said, as matter of law, that there was no evidence to justify the submission of the case to the jury upon the issue of an implied warranty of fitness under said section 17.

[2] The requirement of subsection (1) is that ‘the particular purpose for which the goods are required’ be made known to the seller. The plaintiff wanted the coat for her personal wear, tried it on, and had the defendant make the slight alterations necessary. That this particularizingwas sufficient within the meaning of the statute, see Gearing v. Berkson, 223 Mass. 257, 111 N. E. 785, L. R. A. 1916D, 1006; Wallis v. Russell, [1902] 2 I. R. 585, 598, 604, 613 & 635; Preist v. Last [1903] 2 K. B. 148.

[3] An implied warranty of fitness does not arise however unless ‘it appears that the buyer relies on the seller's skill or judgment.’ The evidence bearing on this issue was meager. The plaintiff entered the defendant's retail store, and asked the saleswoman ‘what she had in coats to fit’ her, and said she would like ‘a brown velour.’ The clerk brought out some little coats, said they were desirable, and were to be sold at $25 for the day; and assured the plaintiff that there was not anything the matter with them, and that the low price was ‘just to advertise the opening.’ She overheard two women, who had returned a coat, complaining because ‘the color had discolored their skin.’ Thereupon she asked the saleswoman ‘What kind of fur is this collar?’ and was told that it was black fox; and to the further inquiry ‘Is that a dyed fur?’ was told that it was not. She further testified that she had absolutely no experience with furs prior to that time. Something more appears here than the ordinary choice of a ready-made garment, where the buyer relies wholly on her own selection as to material, color, style, etc. See Bonwit, Teller & Co. v. Kinlen, 165 App. Div. 966,150 N. Y. Supp. 966;Farrell v. Manhatten Market Co., 198 Mass. 271, 84 N. E. 481,15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436,15 Ann. Cas. 1076. The element of ‘fitness' was bound up with the question of whether the fur was dyed, and possibly contained latent defects dangerous to the wearer. It was from this that the injury to her ultimately flowed. And the plaintiff inquired specifically as to the nature of the garment in this respect. Notwithstanding that the plaintiff participated to some extent in the selection of the garment, we cannot say that there was no evidence to warrant a jury...