Greenberg v. Post

Decision Date07 November 1944
Citation155 Fla. 135,19 So.2d 714
PartiesGREENBERG v. POST.
CourtFlorida Supreme Court

Appeal from Circuit Court; Pinellas County; John U. Bird judge.

Erle B Askew, Richard T. Earle, Jr., and Clair A. Davis, all of St Petersburg, for appellant.

Austin L Richardson, of St. Petersburg, for appellees.

SEBRING, Justice.

Frances A. Post was a servant and employee of Frances A. Post, Inc., a corporation doing a beauty parlor business in Cleveland Ohio. Sophie Greenberg became a patron of the corporation for the purpose of receiving beauty treatments there. Subsequently Sophie Greenberg instituted this suit in the Circuit Court of Pinellas County against Frances A. Post to recover damages for injuries alleged to have been inflicted upon her by said employee by means of an X-ray machine.

The declaration avers, in substance, that in March 1940 and for several years prior thereto Frances A. Post, Inc., a corporation, had held itself out to the general public as being able to remove superfluous hair from the human body permanently without injury to the person. In April 1931 the corporation, for a valuable consideration paid by the plaintiff, undertook to remove excessive and superfluous hair from the face and neck of the plaintiff. The defendant, Frances A. Post, was the servant and employee of the corporation, who supervised and administered the treatments consisting, in part, of the application of Roentgen rays upon the person of Sophie Greenberg by means of an X-ray machine manipulated, controlled and operated by Frances A. Post. The defendant negligently administered the Roentgen rays to the injury of plaintiff in the following particulars: Defendant negligently subjected plaintiff to an excessive amount of Roentgen rays; negligently focused the X-ray machine too close to plaintiff's person and exposed plaintiff's person to the Roentgen rays over too great a period of time; negligently continued to expose plaintiff to the Roentgen rays after defendant knew or should have known that she had injured plaintiff by over-exposure to such rays.

Pleas were filed by the defendant putting the plaintiff to proof of the declaration, and the parties went to trial. At the close of plaintiff's case in chief the trial court entered an order granting a motion for a directed verdict in favor of the defendant. The single question on this appeal is whether the entry of such order constituted reversible error.

A proper determination of the question calls for an analysis of the evidence submitted by plaintiff. From the record before us it appears that prior to treatment Sophie Greenberg had heavy hair growing on her face and neck; in all other respects her skin was smooth and fair. Wishing to rid herself of this hirsute disfigurement she went for treatment to a beauty parlor conducted by Frances A. Post, Inc., in Cleveland, Ohio. She was attracted there by an advertisement appearing in the newspapers wherein the corporation proclaimed the virtues of a certain process uses by it whereby superfluous hair could be removed from the human body permanently without injury to the person. At the beauty parlor Sophie Greenberg was met by the defendant, Frances A. Post, who was apparently in sole charge of operations. Upon plaintiff making known the purpose of her visit, Frances A. Post advised her that treatments referred to in newspapers consisted in part of application of Roentgen rays by means of an X-ray machine; that treatments were effective yet harmless; and that for sum of $150 offending hair could be removed permanently from face and neck of Sophie Greenberg without personal injury. Plaintiff agreed to pay amount stipulated and embarked upon course of treatments offered. The treatments consisted of application of hot wax packs to face and neck followed by administration of Roentgen rays. Plaintiff knew nothing of use or effect of X-rays upon skin of a human being. In accepting treatments she relief solely upon statements made by defendant that proper and harmless results would be obtained; and upon supposed superior skill of defendant in giving treatments. No time was fixed by parties for termination of treatments, it being understood and agreed that treatments should continue until a complete cure was effected.

In giving the treatments, hot wax was first placed upon the face and neck of the patron and then allowed to cool. Upon cooling, this depilatory agent was removed from the skin bringing the offending hair with it. Such stubborn hairs as remained after this operation were jerked from the skin of the partron with tweezers. Roentgen rays were then played on the face and neck of the patron by means of an X-ray machine manipulated or operated by Frances A. Post, or by someone under her immediate direction and supervision, the length and time of exposure being determined solely by the defendant. Francis A. Post was neither a physician nor a surgeon. Her assistants knew nothing of the use of X-ray except that which had been taught them by defendant.

The treatments continued at approximately two week intervals from April 1931 to March 1940. Following a certain treatment in 1936 plaintiff's face turned purple and became violently discolored. Plaintiff called defendant's attention to this condition and was advised by her that this was a natural, harmless transient condition resulting from the treatments administered, and that it was not a thing that should cause concern or alarm. Being thus assured by defendant, Sophie Greenberg continued taking the treatments. Shortly after this experience, heavy wrinkles began to appear in plaintiff's face which, when exposed to the weather, bled and caused great pain. As time went on this condition greatly worsened. Frances A. Post prescribed and applied cold cream of her own selection to plaintiff's face and neck to alleviate this condition. In 1939 a sore broke out on plaintiff's chin. Frances A. Post again assured plaintiff that this was but a temporary condition that would soon cure. Thereafter, at defendant's solicitation, the X-ray treatments were continued; more cold cream was applied.

On October 21, 1940, plaintiff consulted a skin specialist concerning the condition of her face and neck. He was called as a witness at the time of trial. His testimony was that he had found the skin of the face and neck of plaintiff to be wrinkled and atrophic. He had likewise found several warty lesions which he though might become malignant, and a skin cancer which he had had to remove by operation. His diagnosis was that the condition was brought about by over-exposure to exradiation and would become progressively worse.

Another dermatologist called as a witness testified that he had examined plaintiff shortly prior to trial and that her chin cheeks and neck showed a wrinkling which was the result of skin atrophy. On plaintiff's chin was a small scar. There were three or four areas upon the face which showed a beginning of keratosis. The condition which he observed was not normal for a woman of plaintiff's age. His diagnosis was that such skin condition was due to the application either...

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13 cases
  • Miller v. Muscarelle
    • United States
    • New Jersey Superior Court — Appellate Division
    • May 1, 1961
    ...McMillin, 225 Iowa 442, 280 N.W. 608 (Sup.Ct.1938); Campbell v. Weathers, 153 Kan. 316, 111 P.2d 72 (Sup.Ct.1941); Greenberg v. Post, 155 Fla. 135, 19 So.2d 714 (Sup.Ct.1944); Caldarola v. Moore-McCormick Lines, 295 N.Y. 463, 68 N.E.2d 444 (Ct.App.1946), affirmed sub nom. Caldarola v. Ecker......
  • Ex parte Stirrup
    • United States
    • Florida Supreme Court
    • November 17, 1944
  • Petrik v. New Hampshire Ins. Co., KK-35
    • United States
    • Florida District Court of Appeals
    • April 26, 1979
    ...4th DCA 1970). Moreover both the agent and the principal are subject to suit for their own respective negligence. Greenberg v. Post, 155 Fla. 135, 19 So.2d 714 (1944). The stated reason in Clooney v. Geeting, supra, for disallowing evidence of the prior driving record of the employee was th......
  • Luciani v. Nealon
    • United States
    • Florida District Court of Appeals
    • December 4, 2015
    ...establish a prima facie case, it is incumbent on the trial judge to grant the motion." Day, 550 So.2d at 171 (citing Greenberg v. Post, 155 Fla. 135, 19 So.2d 714 (1944) ; Curls, 346 So.2d at 1243 ). In the present case, it is clear from the record that the trial court improperly weighed th......
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