Harris v. Belton

• Decision Date: 05 February 1968
• Court: California Court of Appeals Court of Appeals
• Parties: Ednora HARRIS, Plaintiff and Appellant, v. Jerry B. BELTON and Ethel Belton, Individually and as copartners doing business as Regal Barber and Beauty Supply, a copartnership, Pharmaco Incorporated, a corporation, Defendants and Respondents. Civ. 23398.

Page 808

65 Cal.Rptr. 808

258 Cal.App.2d 595

Ednora HARRIS, Plaintiff and Appellant, v. Jerry B. BELTON and Ethel Belton, Individually and as copartners doing business as Regal Barber and Beauty Supply, a copartnership, Pharmaco Incorporated, a corporation, Defendants and Respondents.

Civ. 23398.

Court of Appeal, First District, Division 1, California.

Feb. 5, 1968.

Fred G. Meis, San Francisco, for appellant.

Ericksen, Ericksen, Kincaid & Bridgman, Frederic G. Nave, Oakland, for respondents.

SIMS, Associate Justice.

Plaintiff, who seeks to recover damages from the retailer and the manufacturer of a skin tone cream for the burning, irritation, darkening and scarring of the skin on her face and neck, allegedly caused by the use of that cream, has appealed from a judgment entered on a verdict for the defendants.

She contends that the trial court erred in failing to give three instructions offered by her which set forth the duties imposed on defendants by state and federal statutes, and in giving an instruction which submitted to the jury the question of whether any breach of statutory duty was excusable or justifiable when there was no evidence to support such a conclusion. She also asserts that the court erred in refusing to give a proffered instruction on damages for breach of warranty. She further claims that there is no substantial evidence in the record to sustain the jury's finding that the defendants did not breach expressed and implied warranties in the sale of the skin tone cream to plaintiff. No prejudicial error is found in the manner in which the jury was instructed, and the evidence does not require a finding for plaintiff as a matter of law. The judgment must be affirmed.

Sufficiency of the Evidence

Plaintiff's complaint sets forth five causes of action. ¹ The first cause of action alleges breach of an express warranty by Pharmaco, Incorporated, the manufacturer; the second, breach of an express warranty by defendants Belton, doing business as Regal Barber and Beauty Supply, the retailer; the third, breach of an implied warranty by the manufacturer and retailer; the fourth, negligence on the part of the manufacturer; and the fifth, negligence on the part of the retailer.

In support of her theory of express warranty plaintiff introduced in evidence an advertisement, from a magazine directed to Negro readers, for Artra Skin Tone Cream which reads: 'LIGHTER, LOVELIER SKIN BEAUTY FOR YOU * * * THE ARTRA PROMISE Artra promises--a complexion fresh and bright as springtime. Soft and glowing as candlelight! Artra, with miracle-magic Hydroquinone, acts agently, but with deep-down thoroughness--to lighten and brighten your skin. To cream your skin to luxurious softness, too. And without oiliness--because Artra vanishes! Try Artra today. That famous Artra look can belong to You!'

She also produced a standing poster advertising the product which recited: 'For a skin that is gloriously LIGHTER BRIGHTER SOFTER Clears Complexion New ARTRA SKIN TONE CREAM with the miracle beauty ingredient Hydroquinone.'

The box in which the purchased tube of skin tone cream was packaged bears the following: 'ARTRA SKIN TONE CREAM contains HYDROQUINONE lightens, brightens, softens skin. Skin Tone Cream is a greaseless vanishing cream for lightening skin, with these additional skin care benefits. Softens skin--Eases removal of blackheads--Protects skin against sunburn. Directions: Place small amount of ARTRA on fingertips, smooth on face, arms, legs, etc. Allow it to soften skin for one or two minutes. Place more ARTRA on fingertips and smooth on skin until it vanishes. Use ARTRA once or twice daily, as desired. NOTE: FOR FULL DIRECTIONS READ ENCLOSED PAMPHLET.'

On the tube itself the statements and directions outlined above are repeated in substance, and, in addition, following the directions, the text states: 'NOTE: For full directions read accompanying pamphlet. Some individuals are allergic or sensitive to certain foods, drugs, or cosmetics. If irritation appears discontinue use of this cream.'

The pamphlet referred to on the package and on the tube repeats the manufacturer's claims, the directions, and the warning concerning individual sensitivity. The last is preceded by the following: 'IMPORTANT: Do not use Artra with other skin bleaches! Mixing Artra with other cosmetic bleaches may lead to dangerous skin irritations. For best results, Use only, Artra * * *.'

Sometime in June 1962 plaintiff entered the Regal Barber and Beauty Supply Store in San Francisco to purchase beauty supplies. Regal is a wholesale supplier of beauty aids, and for at least two years plaintiff had been making purchases at Regal at a discount, on the basis that she was a beauty operator, although she had not as yet obtained a California license. Plaintiff was working as a nurse in 1962, but she held a Missouri license as a beauty operator, and had taken a prescribed course as a hairdresser and cosmetologist. She purchased items at Regal to work on friends.

Plaintiff testified that on this particular occasion in June, after she made her regular purchases and was about to leave, she noted a 'standing poster' similar to that described above, advertising Artra Skin Tone Cream. She had previously seen pictures of the product, and had read the magazine advertisements, although she had not paid particular attention to what the advertisements claimed the article could do. According to plaintiff, she asked the coowner of Regal, Mrs. Belton, if she could use the cream as a foundation, and Mrs. Belton replied that she could, that Artra 'was a good seller and it was used quite a bit and that (she) should try it.' Plaintiff purchased the Artra. She testified that when she purchased the cream she did not know it was a skin lightener, and that she was only interested in purchasing a skin cream

Mrs. Belton testified that during the time plaintiff had been buying from Regal, she had complained, on several occasions, about the darkness of her complexion. According to Mrs. Belton, the sale occurred June 20, 1962, and the following discussion occurred: Plaintiff said, "Mrs. Belton, what is that Artra? ' I said, 'What do you mean, what do I think of Artra?' She said, 'Well, it's supposed to be pretty good for lightening the skin, isn't it?' I said, 'I don't know for sure, but the customers say so.' You know, just kind of shooed it off, and she said, 'I would do anything to get my skin lighter' * * * and she said, 'Which one of these have you used,' and I said, 'I'm sorry, Honey, I can't use anything.' I said, 'I have a sensitive skin and I am not bothered to use anything on it.' And she said, 'Well, oh, I've never been able to use anything but Dorothy Gray's but they don't have any bleach in it, and I just want my skin light.'--Things like that.'

Plaintiff testified that she used the cream on the very day of her purchase. First, she gave herself a patch test. She did not have any reaction, and that evening she followed the directions contained on the carton, washed her face, dabbed on the cream, and rubbed it into the skin on her face and neck. After the first full application, she had to go out to make additional forgotten purchases, and she removed the original application. When she returned from her shopping, she again applied Artra. She applied Artra, for the third time, on the following afternoon before going to work.

After she reported to work her skin began to itch, and she felt very warm. She washed her face, but 'During the eight hours that I worked it continued to be annoying and itching and burn(ing), and I just kept going into the washroom to wash it off, and just putting cold water on my face to sooth the burning.' On the third day, plaintiff's skin continued to burn, she noticed some small pimples, her skin became tighter, and she had swelling about her eyes. When she applied powder to her face, she noticed some flaking. Plaintiff testified she returned to Regal, and complained of the results. According to plaintiff, Mrs. Belton stated that swelling and irritation 'often occurs when someone uses the cream, but that if I continued my skin would clear.'

Mrs. Belton testified that plaintiff registered no complaint when she came in the store about a month after the purchase; and that subsequently, in a phone call, for the first time she stated her skin was irritated.

Plaintiff first consulted a doctor about her skin condition in July. At that time her skin had grown worse, and the color had begun to get darker. She testified that prior to visiting the doctor, and after using Artra, she used Unguentine, Dermassage, lanolin, and glycerine on her face. The first doctor she visited gave her medication, and told her she could use 'Basis Soap' on her face. Plaintiff testified she had never used Basis Soap prior to this time. She subsequently saw other doctors, including Dr. Schneidman, who testified as a witness for plaintiff Plaintiff testified that as of the time of trial her skin was still very irritated, especially in warm weather, or in a warm room. However, there was no longer swelling, and her skin had grown lighter, although her skin was still 'jet black' around, and over her eyes, and about her neck. Plaintiff testified that she had used Dorothy Gray lotion and Charles of the Ritz face powder prior to June 1962, that she never used any cream on her face prior to this time, but only used powder and lipstick, that she had her hair tinted prior to the occurrence with Artra, that she also may have used turtle oil to treat herself after the use of Artra, and that she had never had any kind of skin condition or hair condition. Plaintiff was given three patch tests to determine whether she was allergic to Artra She reacted positively to only one of the tests.

Two of plaintiff's friends, and a former employer, testified that plaintiff's skin was darker and of a different texture after June 1962, than when they had known her,...