Glossip v. Kelly

• Decision Date: 08 January 1934
• Citation: 67 S.W.2d 513,228 Mo.App. 392
• Parties: CATHERYN A. GLOSSIP, BY, ETC., RESPONDENT, v. DELBERT F. KELLY, APPELLANT
• Court: Kansas Court of Appeals

67 S.W.2d 513

228 Mo.App. 392

CATHERYN A. GLOSSIP, BY, ETC., RESPONDENT, v. DELBERT F. KELLY, APPELLANT

Court of Appeals of Missouri, Kansas City

January 8, 1934

Appeal from Circuit Court of Buchanan County.--Hon. Sam Wilcox Judge.

AFFIRMED.

Judgment affirmed.

W. J Boyd for respondent.

Landis & Landis for appellant.

REYNOLDS C. Campbell, C., concurs.

OPINION

REYNOLDS, C.

This suit was instituted in the Circuit Court of Buchanan County, Missouri, on the fourteenth day of March, 1932, for the recovery of damages in the sum of ten thousand dollars from defendant and others on account of burns sustained by respondent about the tenth day of September, 1931. On or about that date, plaintiff, then a country girl nineteen years of age, living at the little town of Osborn, went into defendant's place of business, known as Caster's Beauty Academy in St. Joseph, Missouri, to get a permanent wave of her hair which defendant undertook to give her and, in the course of giving which, she was seriously injured by defendant or his agents. The petition alleged that defendants were engaged in conducting for hire a beauty academy and parlor in the city of St. Joseph, Missouri, and held themselves out as capable, efficient, competent, skillful, and expert in permanently waving and curling women's hair; that on or about September 17, 1931, plaintiff, relying upon the said representations of defendants, applied to defendants for a permanent wave of her hair and, for a valuable consideration paid them, they undertook to administer such permanent wave and that, during such undertaking, they and their servants, agents, and employees so carelessly, negligently, and unskillfully conducted themselves and so carelessly, negligently, and unskillfully manipulated, operated, and handled the instruments, appliances, and apparatuses used in and about such undertaking as seriously, painfully, and permanently to injure plaintiff in this, to-wit: --. The petition proceeds with an enumeration of the injuries received--included in which were burns upon the head and scalp, the hair, and also about the right mastoid bone--together with a statement of the amount of damages and a prayer for judgment.

The defendant, Delbert F. Kelly, filed his amended separate answer in which he tendered a general denial and also a specific denial of any negligence in the operation of the instrumentalities used in giving plaintiff the permanent wave. The answer also set up contributory negligence on plaintiff's part in failing to call the attention of the operator to and telling her of the painful sensations being experienced in her head and scalp during the progress of the work upon her head. The answer also pleaded a release.

To this amended answer, plaintiff filed a verified reply, denying the allegations thereof and especially denying the execution of any release and tendering the issue that, if plaintiff signed any paper purporting to be a release, it was obtained by fraud upon the part of defendant. The evidence tended to show that plaintiff went to defendant's place because she had seen it advertised in the newspapers and telephone directories and had heard people talk about the place as a good place to get a permanent wave. She had never been in the place before, nor had she ever been in any other beauty shop. She went into defendant's place of business between one and one-thirty o'clock in the afternoon and left there around five o'clock. When she went in, she told Mrs. Kelly, an employee of defendant and a supervisor in his place of business, that she wanted a permanent wave and was asked by Mrs. Kelly whether she wanted a student or a professional wave. Finally, it was arranged between them that she was to have a wave administered by a student at the price of either four dollars or four dollars and fifty cents, which charge she paid; and work was immediately begun upon her.

A Mrs. Neva Davis was assigned to wait upon plaintiff. She first gave the plaintiff a shampoo and then, after drying her hair, began to wind plaintiff's hair on spindles or curlers. Plaintiff had nothing to do with putting her hair on the spindles or curlers or putting on any of the other equipment or paraphernalia and knew nothing about those things. Mrs. Davis then took plaintiff "back" and put her under some kind of an electrical machine to curl her hair. Plaintiff had nothing to do with operating that machine or turning on or off the current. After plaintiff was put under that machine, Mrs. Davis left. She and Mrs. Kelly later returned and turned on the current in the machine; and they kept debating whether to leave it on or turn it off and did not seem to know how long they should leave it on or when they should turn it off.

In the meantime, plaintiff told Mrs. Davis her head was being burned. She felt that she was being burned, and told her so several times. In response to plaintiff's complaints that she was being burned, Mrs. Davis and Mrs. Kelly stated to her, "It cannot burn you." While plaintiff's hair was being put on the spindles or curlers, plaintiff several times told Mrs. Davis that she felt that it was pulling. She could not state that Mrs. Davis did anything about it, only she felt that it was pulling tighter than ever after she informed them that she felt it was pulling. While her hair was in that condition and without any changes being made, they put her under the electrical machine. Eventually, Mrs. Davis and Mrs. Kelly took off the equipment and let plaintiff out from under the machine. Her head felt hot and sore and felt as if it had been burned. She was not sure that she was burned until early the next morning when she discovered her head had blisters on it in several places. One of the blisters was back of her right ear, over the mastoid gland; one was in the crown of her head; and one was between those two. She went back to the shop that morning and showed the burns to Mrs. Kelly, who washed them off with alcohol.

At the time plaintiff received the burns in question, she was staying at the home of the Coleman sisters at 729 South Sixteenth Street, St. Joseph; and they and a Miss Edna Weaver, who also lived at that address, saw the blisters. The blisters became inflamed and infected. They started running and had a bad odor. There was a discharge from them. Plaintiff had no burn or any other trouble with her scalp when she went into defendant's place of business to get her permanent wave. The blisters healed up after a month's time or more. Although the treatment for the burns continued over a period of a month, defendant never at any time sent plaintiff to a doctor or called one for her. The burns left two scars, one behind plaintiff's right ear over the mastoid process about an inch or an inch and a half across, and a smaller one about half an inch farther up in her hair. The hair roots or follicles were killed in the area of the burns. The burns were extremely painful. Plaintiff was made nervous by the burns and was unable to sleep well and suffered from a ringing sensation in her right ear; and her capacity to hear through the right ear was impaired--all of which conditions could reasonably have come from the burns suffered by plaintiff and the infection thereof.

At the close of plaintiff's evidence, the court sustained demurrers as to all other defendants than Delbert F. Kelly, the appellant herein; and plaintiff took an involuntary non-suit as to them and proceeded against the appealing defendant only. The jury awarded plaintiff a verdict in the sum of four hundred dollars; judgment was entered upon said verdict for plaintiff for said sum against defendant Delbert F. Kelly; after an unsuccessful motion for a new trial, he prosecutes this appeal.

OPINION.

The appellant assigns as error upon the trial below the giving of instruction number 2 for the respondent.

The petition alleged that, for a valuable consideration paid defendant by the plaintiff, "the defendant undertook to permanently wave plaintiff's hair that defendant, his servants, agents and employees, so carelessly, negligently and unskillfully conducted themselves in and about said undertaking, and so carelessly, negligently and unskillfully manipulated, operated and handled the instruments, appliances and apparatuses used in and about such undertaking as to seriously, painfully and permanently injure plaintiff in this to-wit: --" The petition proceeds to set out the injuries and damages. It further alleged that "all the instruments, machinery, appliances, equipment and apparatuses used by the defendants in such undertaking were in the exclusive possession, control, and management of defendant, his servants, agents and employees, and that plaintiff had no knowledge or control over the same."

It is clear that the petition thus charged general negligence. It was not challenged by motion to make more definite and certain in the trial court or in any other manner. It is, therefore, to be considered as sufficient.

1--Instruction number 2, complained of, submitted to the jury the question of defendant's negligence in the same general terms.

It is contended by appellant that, even though no specific negligence was charged in the petition, yet, nevertheless the instruction was required to be so formulated as to require the jury to find the particular act or acts of negligence, revealed in the proof, occasioning the injury; otherwise, it became a mere roving commission to the jury to determine for itself what did or did not constitute such negligence. The contention seems to be well made unless this case be one where the doctrine of res ipsa loquitur applies under the pleadings; and the burden to exculpate from fault lies with the...