Goldwaters, Inc. v. Medar
| Decision Date | 02 July 1957 |
| Docket Number | No. 6195,6195 |
| Citation | 82 Ariz. 344,313 P.2d 410 |
| Parties | GOLDWATERS, Incorporated, a corporation, Appellant, v. Alyce MEDAR and Sam Medar, her husband, Appellees. |
| Court | Arizona Supreme Court |
Snell & Wilmer, Phoenix, for appellant.
Laney & Laney, Phoenix, for appellees.
Suit by Alyce Medar against Goldwaters, Incorporated, for personal injuries claimed to have been caused by the effects of chemicals alleged to have been negligently applied by the agent of defendant in treating plaintiff's hair in a beauty salon operated by defendant. From verdict and judgment for the plaintiff and the denial of defendant's motion for judgment n.o.v. or in the alternative for a new trial, defendant appeals and presents six assignments of error. The entire argument in defendant's brief is addressed to only one assignment and under the authority of Stallcup v. Coscarart, 79 Ariz. 42, 282 P.2d 791, the others will be considered abandoned.
The assignment argued presents the question whether the evidence justifies a finding that any product was applied to plaintiff's hair of which the defendant was charged with knowledge of potentially harmful effects. When we state the existence of facts we refer to such facts as are undisputed or for which there is evidence in support.
The dispute revolves around the question of whether a product known as 'Miss Clairol' which contained a toxic ingredient was applied by the defendant. This product should not be applied without first administering a 'patch test' to determine there will be no damaging reaction. Such test was not done in this instance. The defendant contends that the product applied was one known as 'Lady Clairol Whipped Creme' and the jury could not legally find otherwise. The assignment of error argued states that defendant had no knowledge of any potentially harmful effects of 'Lady Clairol Whipped Creme' and would not be liable for an unforeseeable allergic response. Tests demonstrated plaintiff had no allergic response to 'Lady Clairol Whipped Creme'. Consequently, the jury was fully justified in eliminating this as a cause.
The defendant contends that if the jury be allowed to find 'Miss Clairol' was used, it would violate the rule as announced in New York Life Insurance Co. v. McNeely, 52 Ariz. 181, 79 P.2d 948, that an ultimate fact cannot be inferred from another inferred fact. It is conceded by the defendant that from the testimony of medical witnesses, it could be inferred that some toxic substance was applied. There is ample evidence that whatever was applied was the proximate cause of plaintiff's ailment. Thus, the jury could find, without resort to an inference upon an inference, that some poisonous substance was applied which resulted in the injury.
The plaintiff in an effort to convince the jury that 'Miss Clairol' was the evil cause submitted evidence to the effect that plaintiff advised the operator sh...
To continue reading
Request your trial
-
DeElena v. Southern Pac. Co.
...as worthy of argument, we consider them as abandoned. In re Lamfrom's Estate, 90 Ariz. 363, 368 P.2d 318 (1962); Goldwaters, Inc. v. Medar, 82 Ariz. 344, 313 P.2d 410 (1957); EFC Development Corp. v. F. F. Baugh Plumbing & Heating, Inc., 24 Ariz.App. 566, 540 P.2d 185 Judgment affirmed. CAM......
-
Van Loan v. Van Loan
...The failure to raise an issue either at the trial level or in briefs on appeal constitutes a waiver of the issue. Goldwater's v. Medar, 82 Ariz. 344, 313 P.2d 410 (1957). Counsel for the petitioner argues that his substitution of counsel prior to oral argument before the Court of Appeals sh......
-
Dyer v. Dyer, 6585
...Wilson v. Wilson, 45 N.M. 224, 114 P.2d 737, 739 (1941).5 Gerber v. Cook, 90 Ariz. 390, 368 P.2d 458 (1962).6 Goldwaters, Inc. v. Medar, 82 Ariz. 344, 313 P.2d 410 (1957).7 Cf. Bradstreet v. Bradstreet, 34 Ariz. 340, 271 P. 717 (1928).8 Ackel v. Ackel, 57 Ariz. 14, 110 P.2d 238, 133 A.L.R. ......
-
Lamfrom's Estate, In re
...to state any grounds for, or argue this point, we must consider the assignment of error in this regard abandoned. Goldwaters, Inc. v. Medar, 82 Ariz. 344, 313 P.2d 410 (1957). With regard to plaintiffs' objections to the determination of equitable adoption, four propositions of law are 1. A......