Idzykowski v. Jordan Marsh Co.
| Decision Date | 20 May 1932 |
| Citation | 279 Mass. 163,181 N.E. 172 |
| Parties | IDZYKOWSKI v. JORDAN MARSH CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court; W. Thayer, Judge.
Action by Catherine Idzykowski, p. p. a., against Jordan Marsh Company. Verdict for defendant, and plaintiff brings exceptions.
Judgment for defendant.
A. J. Berkwitz and D. G. Nagle, both of Boston, for plaintiff.
C. B. Barnes, Jr., of Boston, for defendant.
This action, originally in tort, was subsequently amended to an action of contract to recover damages for injuries sustained to the plaintiff's hands. The declaration was also amended by a discontinuance of counts ‘1’ and ‘2.’ Count ‘3,’ in substance, alleged that the defendant sold the plaintiff a certain cleaner for white shoes with an express warranty ‘that the same was free from any dangerous ingredients, that no gloves were needed in its application, that it was harmless and would not chafe or otherwise irritate the skin, and that it was fit for the purpose for which [it was] intended; that the plaintiff relying on said warranty and representation took it home and applied it to her shoes,’ and thereby was injured in body and mind. Count ‘4’ contained an allegation of breach of implied warranty that the cleaner was ‘fit for [the] use for which [it was] intended.’ The answer of the defendant was a general denial, contributory negligence on the part of the plaintiff, and a special answer setting up a failure of the plaintiff to give proper notice to the defendant of breach of the alleged warranty within a reasonable time after the plaintiff knew of the breach. ‘It was agreed by counsel for all parties that at the time that the plaintiff alleges she purchased the * * * Cleaner, one of the component parts of said cleaner was commercial ether.’ At the close of the trial the defendant moved for a directed verdict; the judge submitted the case to the jury, reserving leave to direct a verdict. The jury returned a verdict for the plaintiff and the judge, under leave reserved, directed a verdict for the defendant ‘upon the stipulation, that if the Court was in error in directing a verdict for defendant then judgment to be entered for the plaintiff on the verdict rendered by the jury, otherwise judgment for the defendant.’ The plaintiff excepted to the direction of a verdict for the defendant.
The bill of exceptions contains all evidence material to the issues raised thereby. The facts in their aspect most favorable to the plaintiff's contention, which the jury could warrantably find, are as follows: The plaintiff, who had never had any eruption or trouble with her hands or skin before June 26, 1926, on that day accompanied by her sister went to the store of the defendant to purchase a cleaner for white shoes. At a counter there were two salesgirls and she asked one of them whether she had ‘Opeechee White Shoe Cleaner.’ The girl addressed replied that ‘she did not have that brand and she took up * * * a bottle from the counter and showed it to the plaintiff, saying it was ‘Cleveland's Shoe Polish,’ a very good polish, and better than the one the plaintiff asked for; that it would clean shoes no matter how soiled they were, so they would look like new shoes and a good feature was that at the same time it was so harmless it would not irritate the most delicate skin.' The plaintiff asked whether she should apply it with a cloth or how she should apply it, and the salesgirl said, ‘apply it with a piece of cloth or a sponge on the shoes,’ and ‘it is a very safe substance.’ The plaintiff relied upon what the salesgirl had said and in consequence thereof purchased the bottle which was exhibited at the trial, brought it home on a Saturday, and on the Monday following used the cleaner on her shoes. Her hands were perfectly healthy before she used it. The shoes were a sort of sandal with cut-out work on the toe. She shook the bottle to dissolve the precipitate in the bottom and poured the cleaner on a clean old linen handkerchief to apply it. She had one hand in the sandal, palm down, and some of the cleaner went through the openings in the sandal and got on the upper side of the hand in the shoe, and splashed over the other hand with the cloth. The cleaning process took about...
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