Frier v. Proctor & Gamble Distributing Co.
| Decision Date | 24 January 1953 |
| Docket Number | No. 38706,38706 |
| Citation | 252 P.2d 850,173 Kan. 733 |
| Parties | FRIER v. PROCTOR & GAMBLE DISTRIBUTING CO. et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. When one frames a petition in an action so that it is difficult to determine whether he is relying upon a contract of warranty or upon negligence it is proper for the court to require him to elect.
2. In an action for damages the record is examined and held, it was not error for the court to sustain defendant's motions for judgment on the record.
Harry O. Janicke and J. A. Herlocker, both of Winfield, were on the briefs for appellant.
Donald Hickman, of Arkansas City, argued the cause, and James O. Coates and Potter Stewart, both of Cincinnati, Ohio, and Kirke W. Dale, of Arkansas City, were on the briefs for appellees.
Plaintiff brought this action to recover damages for injuries to her hand and medical attention resulting from the use of 'Tide,' manufactured by one of the defendants and distributed by the other, while washing dishes in a restaurant. She initiated the case April 6, 1951, by filing a bill of particulars in the city court against the distributing company only. A trial there resulted in a judgment in plaintiff's favor, and defendant appealed to the district court. There the manufacturing company was made an additional party defendant, the pleadings were amended, and a jury trial commenced. At the trial defendants moved that plaintiff be required to elect whether she was proceeding to recover on contract or in tort. She elected to rely on 'warranty, both express and implied.' At the close of plaintiff's evidence defendants offered no evidence, but each of them filed a motion for judgment. These separate motions were sustained. Plaintiff has appealed.
The case made by plaintiff's pleadings and testimony may be summarized as follows: At the time of the trial she was 51 years of age and had lived on a farm all her life. She was married in 1919. She always did her own washing of dishes and clothes, using various kinds of soap or soap flakes. She first worked out in 1946 for one day a week at a gathering called 'Community Sale,' where she helped in the cooking and washing of dishes. In April, 1949, she commenced working at a restaurant which operated under the name of 'Ranch Lunch'. She worked eight hours a day, most of the time washing dishes, using 'Rinso,' 'Super Suds,' 'Duz,' or similar products furnished by her employer. Early in October her employer brought her a package of 'Tide' for her use in washing dishes. She had never previously used Tide. It was in a sealed box. There was printed on the box the following:
This printing on the box indicated that its contents were a detergent more effective in cutting grease then any soap. Plaintiff testified she noticed the 'kind-to-hands' phrase and that she relied upon it; that after using the first box of Tide her employer purchased a case or carton of Tide and that she used about one box a day in washing dishes for her employer at the restaurant for 'several weeks'. She continued her work for her employer until as late as February, 1950, perhaps later. She testified that she had never previously had any trouble with her hands from washing dishes; that about a week after she started using Tide she noticed that her hands were getting sore and that they later became rough, raw and inflamed; that she went to the drug store and got some medicine which she put on her hands for about two or three weeks and then consulted doctors. Other witnesses called by plaintiff testified that they had used Tide for washing dishes or in other cleaning and that their hands became red, there was irritation, and sometimes cracks or small blisters, and they ceased using it for those purposes. A doctor, who had not treated her but had examined her shortly before the trial,...
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Nichols v. Nold, s. 38951 and 38959
...for tort, as alleged in the first cause of action, citing Burks v. Aldridge, 154 Kan. 731, 121 P.2d 276, and Frier v. Proctor & Gamble Distributing Co., 173 Kan. 733, 252 P.2d 850. Neither of these cases is helpful to appellant. In the Burks case plaintiff sued a highway contractor for dama......
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Dallison v. Sears, Roebuck and Co., 6979.
...Bottling Company, 181 Kan. 35, 309 P.2d 633, and Challis v. Hartloff, 136 Kan. 823, 18 P.2d 199, with Frier v. Proctor & Gamble Distributing Co., 173 Kan. 733, 252 P.2d 850, and Graham v. Bottenfield's, Inc., 176 Kan. 68, 269 P. 2d 413, 415. However, see 5 Kan.L.Rev. 128, 130, for a possibl......
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Richard v. H. P. Hood & Sons, Inc.
...Ry. & Light Co. v. Sprague Elec. Co., 203 Ill.App. 424, aff'd, 280 Ill. 386, 117 N.E. 461, L.R.A.1918B, 200; Frier v. Proctor (sic) & Gamble Distrib. Co., 173 Kan. 733, 252 P.2d 850; Topeka Mill & Elevator Co. v. Triplett, 168 Kan. 428, 213 P.2d 964; Barefield v. La Salle Coca-Cola Bottling......
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Burgess v. Montgomery Ward and Company, 6016.
...2 See Challis v. Hartloff, 133 Kan. 221, 299 P. 586 (application of different statutes of limitation), and Frier v. Proctor & Gamble Distributing Co., 173 Kan. 733, 252 P.2d 850 (election between claims). 3 In Nichols v. Nold, 174 Kan. 613, 258 P.2d 317, 331, 38 A.L.R.2d 887, the court deal......