Graham v. Jordan Marsh Co.

• Decision Date: 04 June 1946
• Citation: 67 N.E.2d 404,319 Mass. 690
• Parties: JENNIE GRAHAM v. JORDAN MARSH COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

319 Mass. 690

67 N.E.2d 404

JENNIE GRAHAM v. JORDAN MARSH COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

June 4, 1946

May 14, 1946.

Present: FIELD, C.

J., QUA, RONAN WILKINS, & SPALDING, JJ.

Sale, Warranty. Proximate Cause.

Findings, both of an express and of an implied warranty that cold cream sold by the proprietor of a store to a customer was beneficial for dry skin were justified by evidence that the customer told the proprietor's clerk that she wished the cream so that she would look well; that the clerk, after looking at her told her that her skin was dry, and recommended as suitable and sold to her a jar of cream bearing a label that it was "dry skin cream . . . recommended in cases of prolonged dryness"; and that the customer relied on the recommendation in purchasing the cream.

Testimony by the plaintiff at the trial of an action for injuries sustained from use of cold cream sold her by the defendant under express and implied warranties that it was beneficial for dry skin, that, after application of the cream, her face became red, burned and swollen, that there was nothing wrong with her skin when she made the purchase, and that she had previously used cold cream, warranted findings that such condition of her skin following use of the cream was caused by its application and that it was unfit for use by a normal person, although her physician, called by her as a witness testified that her condition was an "allergic dermatitis, some sensitivity to something that she came in contact with," and was not due to diabetes for which he had been treating her, and did not testify that the application of the cream caused the condition.

CONTRACT. Writ in the Superior Court dated April 17, 1944. The case was tried before Kirk, J.

I. Bernstein, for the plaintiff. J. W. Lobdell, for the defendant.

RONAN, J. This is an action of contract to recover damages for personal injuries sustained by the plaintiff from the use of cold cream purchased by her from the defendant in reliance upon certain express and implied warranties made by the defendant and she alleges a breach of these warranties. The case is here on an exception taken to the direction of a verdict for the defendant.

Considering the evidence in the light most favorable to the plaintiff, as we must in determining the correctness of the ruling ordering a verdict for the defendant, the jury could find the following facts: The plaintiff told the defendant's clerk that, as one of her boys whom she had not seen for over three years was coming home, she wanted to look well and desired to purchase some cold cream. The clerk looked at the plaintiff's face, and told her that her skin was dry, that the clerk had something that would just suit the plaintiff, and that she would look well when her boy arrived if she would apply this cream. The label on the jar contained this legend: "Velvet of Roses, Dry Skin Cream is recommended in cases of prolonged dryness or undue exposure. Used regularly it helps give the skin a smooth, soft, pliant appearance. Apply at night. Smooth over face and throat and pat well." She relied upon what the clerk had said and purchased the cream. She had previously used cold cream only occasionally, but had not used any for three months. There was nothing wrong with her face when she bought this cream from the defendant. On the evening of the day she purchased the cream, she applied it to her face, permitting it to remain on her face for an hour and one half, when her face became red, burned and swollen. The next morning her eyes were swollen and almost closed. She applied the cream the next evening with similar results. The next day she notified the defendant that her face had been burned by the cream.

She then saw a physician who treated her. We need not further detail her physical injuries.

The evidence was ample, if believed, to warrant findings that the sale of the cream included an express warranty that it was beneficial for dry skin; that there was also an implied warranty, since the plaintiff disclosed to the clerk the purpose for which she desired the cream, left the selection of the cream to the clerk and relied upon her skill and judgment, that the cream was reasonably fit for the purpose intended; and that there was a...