Graham v. Bottenfield's, Inc.

• Citation: 176 Kan. 68,269 P.2d 413
• Decision Date: 10 April 1954
• Docket Number: No. 39292,39292
• Parties: GRAHAM v. BOTTENFIELD'S, Inc.
• Court: United States State Supreme Court of Kansas

Page 413

269 P.2d 413

176 Kan. 68

GRAHAM v. BOTTENFIELD'S, Inc.

No. 39292.

Supreme Court of Kansas.

April 10, 1954.

Syllabus by the Court.

1. A manufacturer, distributor or retailer who sells the hair preparation 'Miss Clairol' does so under the implied warranty that such product is suited and fit for the purpose for which it is sold.

2. The record in an action to recover for injuries alleged to have been sustained from the use of the hair preparation referred to in the first paragraph of this syllabus examined, and held, that under the facts, circumstances and conditions alleged in the petition, as set forth at length in the opinion, the trial court did not err in overruling a demurrer based on the ground that pleading failed to state a cause of action.

P. E. Nulton, Pittsburg, argued the cause, and R. L. Letton, Pittsburg, was with him on the briefs, for appellant.

Pete Farabi, Pittsburg, argued the cause and was on the briefs for appellee.

PARKER, Justice.

This was an action to recover for injuries alleged to have been sustained from the use of a hair preparation, known as 'Miss Clairol.' The defendant appeals from an order overruling its demurrer to the petition.

Failure of the petition to state facts sufficient to constitute a cause of action is the sole issue involved on appeal. For that reason, because it discloses the factual situation about as clearly as it could be described in narrative form, and definitely outlines the legal theory on which plaintiff bases her right to relief, we shall quote from such pleading at length, omitting only formal averments and other immaterial allegations to which brief reference will be made.

After stating plaintiff is a resident of Pittsburg, that the defendant Bottenfield's Inc. is a Kansas corporation, engaged in the business of wholesaling, distributing and selling beauty and barber supplies in Crawford County, and that the defendant Clairol Inc. is a foreign corporation, located at Stamford, Connecticut, and engaged in the business of selling the involved hair preparation in the State of Kansas without authority of law, the petition reads:

'Plaintiff further states that said defendant Clairol Inc., a corporation, did prior to February 2, 1951, sell said 'Miss Clairol' preparation to the defendant Bottenfield's Inc., a corporation, knowing that said Bottenfield's Inc., a corporation, would offer said 'Miss Clairol' hair preparation for sale to the beauty shops and parlors in their trade territory for use as a hair tint or dye on patrons of said beauty shops in their trade territory, and said defendant Clairol Inc., a corporation, did impliedly warrant that said 'Miss Clairol' hair tint, or dye, or hair color bath preparation was fit for the purpose of applying the same to the hair and scalp of patrons of beauty shops or the public in general and did impliedly warrant that the same could be used without injury to said patron or the public.

'Plaintiff further states that at the time prior to February 9, 1951, the defendant, Bottenfield's Inc., a corporation, did sell said product above described to-wit: 'Miss Clairol' to one Mrs. Pearl Baker, owner of the Vanity Beauty Shoppe, 125 East Fourth Street, Pittsburg, Kansas, knowing that said Pearl Baker would use said 'Miss Clairol' preparation herein described on the hair and scalp of patrons of her beauty shop and said defendant Bottenfield's Inc., a corporation, did impliedly warrant that said hair preparation above described to-wit: 'Miss Clairol' was fit for the purpose of using the same on the hair and scalp of the patrons of said beauty shops and the public as a hair dye, or tint, or color bath and that the same would not cause any personal injury of any nature to the patrons and public as a whole.

'Plaintiff further states that thereafter and on the second day of February, 1951, she, for valuable consideration, took a hair treatment at the beauty shop of the said Pearl Baker, at the Vanity Beauty Shoppe, owned by the said Pearl Baker, said hair treatment being administered by the said Pearl Baker and that the said Pearl Baker did use the hair preparation dye, tint, or color bath above mentioned to-wit: 'Miss Clairol', and that said plaintiff underwent said hair treatment relying upon said implied warranty avove described. Plaintiff states that said hair preparation or hair dye, or hair tint, or hair color bath, to-wit: 'Miss Clairol' was not fit for use as such, but contained deleterious and harmful substances the exact nature of which the plaintiff cannot and does not know as the same are peculiarly within the knowledge of the defendants, and by reason thereof and the defendants' breach of warranty of fitness and wholesomeness of said hair preparation above mentioned to-wit: 'Miss Clairol,' the plaintiff was injured and damaged in the following manner to-wit:

'(Here follows a full and complete statement of all injuries alleged to have resulted from the use of such hair preparation.)

'Plaintiff further states that when the defendant Clairol Inc., a corporation, sold said 'Miss Clairol' hair preparation to the defendant Bottenfield's Inc., a corporation, the said defendant Clairol Inc., a corporation, knew that said hair preparation above described would be resold by the said Bottenfield's Inc., a corporation, to beauty shops or other trade outlets to be used on the hair and scalp of the public, and the defendant Clairol Inc., a corporation, impliedly warranted to all persons who might use said hair preparation or have the same used on them by approved beauticians, including the plaintiff, that said 'Miss Clairol' was fit for that purpose and was wholesome and non-injurious to the person and did not contain any harmful substances.

'Plaintiff further states that when the defendant Bottenfield's Inc., a corporation, sold said 'Miss Clairol' hair preparation, dye, tint, or color bath to said Pearl Baker, owner of the Vanity Beauty Shoppe, the defendant Bottenfield's Inc., a corporation, knew that said 'Miss Clairol' would be used by said Mrs. Baker on the hair and scalp of patrons of her beauty shop and the defendant Bottenfield's Inc., a corporation, impliedly warranted to all persons who might use said 'Miss Clairol' or have the same used upon them, including the plaintiff, that said 'Miss Clairol' was fit for such use and was wholesome, not injurious to the person and did not contain any harmful substances.'

The remainder of the petition consists of allegations relating to the amount of damages sustained as a result of plaintiff's alleged injuries and a prayer for judgment in accord therewith.

For purposes of supplementing the factual picture only it should be noted at this point that the owner of the beauty shop (Mrs. Pearl Baker) was not made a party, that a pretended service of summons on the manufacturer (Clairol Inc.) was set aside, and that the only defendant now involved in the action is the distributor (Bottenfield's Inc.), who sold the product in question to the beauty shop owner.

From an examination of the foregoing petition it is clear that appellee's cause of action is predicated upon the breach of an implied warranty on the part of the manufacturer, the distributor, and for that matter the owner of the beauty shop even though she was not made a party to the action, that 'Miss Clairol' when manufactured, when sold, and when subsequently used was suited and fit for use as a hair preparation and contained no deleterious or harmful substances making it unwholesome or injurious to her when applied to her hair and scalp by a beautician.

Appellee states, and we find nothing in our reports to the contrary, that so far as it relates to the sufficiency of a petition in charging a cause of action for breach of implied warranty in the manufacture and sale of a product of the particular type here involved, this is a case of first impression in this court. This, we may add, is true notwithstanding our decision in Frier v. Proctor & Gamble Distributing Co., 173 Kan. 733, 252 P.2d 850, on which appellant, with some justification, seeks to place weight as a precedent. Resort to that opinion discloses there was no claim the petition failed to state a cause of action, that the cause proceeded to trial, and that at the close of plaintiff's evidence the court took the case away from the jury, after a demurrer had been lodged against the plaintiff's evidence, and rendered judgment for the defendant principally, if not entirely, upon the premise that under the conditions and circumstances there involved the plaintiff's continued use of the product made her guilty of contributory negligence which precluded her recovery as a matter of law. If, as appellant suggests, the language, to be found in the first portion of the last paragraph commencing on page 735 of 173 Kan., on page 851 of 252 P.2d, is susceptible of a construction that the decision is based upon lack of privity between the parties to the action it is to be disregarded. Moreover, in a subsequent decision, in Nichols v. Nold, 174 Kan. 613, 621, 258 P.2d 317, 324, with specific reference to the Frier case, we said 'The only point upon which the case can be relied upon as an authority is that under some circumstances the plaintiff in such a case, after all the evidence is in, may be called upon...