J. C. Penney Co., Inc. v. Scarborough

• Court: Mississippi Supreme Court
• Writing for the Court: McGehee, J.
• Citation: J. C. Penney Co., Inc. v. Scarborough, 184 Miss. 310, 186 So. 316 (Miss. 1939)
• Decision Date: 13 February 1939
• Docket Number: 33572
• Parties: J. C. PENNEY CO., INC., v. SCARBOROUGH

186 So. 316

184 Miss. 310

J. C. PENNEY CO., INC., v. SCARBOROUGH

No. 33572

Supreme Court of Mississippi, Division B

February 13, 1939

APPEAL from circuit court of Harrison county HON.W. A. WHITE, Judge.

Action by W. A. Scarborough against the J. C. Penney Company, Inc. for injuries alleged to have been caused by reason of harmful or poisonous substance in pair of socks purchased by plaintiff from defendant. Judgment for plaintiff, and defendant appeals. Reversed and judgment entered for defendant.

Reversed and judgment here for appellant.

Carl Marshall, of Gulfport, for appellant.

The evidence did no more than indicate that the socks irritated and inflamed the plaintiff's skin when they, moistened were held in prolonged contact with it. There was no proof that they would be injurious if worn by others. In view of the undisputed medical testimony to the effect that some men are allergic to dyes, and dyed materials, so that they are compelled to wear white socks, as the plaintiff's physician advised him to do, and as he did; in consideration of the testimony of the manufacturer's chemist that the dyes and other materials used in the manufacture of the socks were harmless to normal persons; and in view of the undisputed proof of sales of a very large number of the same socks locally and elsewhere, without injury to, or complaint by, the purchasers and wearers, evidence of the plaintiff's individual reaction to the socks is not sufficient to support a jury's finding to the effect that the socks were defective in the sense that they would have developed unfavorable results when worn by average persons. There was no legally sufficient proof of that.

Bradt v. Holloway, 240 Mass. 446, 136 N.E. 254; Flynn v. Bedell Co. of Mass., 242 Mass. 450, 136 N.E. 252, 27 A.L.R 1504.

If the cause of the injury be uncertain, resting solely upon conjecture, a directed verdict should be for the defendant.

I C. R. R. Co. v. Humphries, 170 Miss. 840, 155 So. 421; I. C. R. R. Co. v. Fowler, 123 Miss. 826, 86 So. 460; C. & G. Ry. Co. v. Cobbs, 156 Miss. 604, 126 So. 402.

The plaintiff has pitched his action entirely upon the theory of tort, charging negligence and false representations of fact, as a basis for recovery. He is held to his theory of action in his efforts at recovery.

Richards v. City Lbr. Co., 101 Miss. 678) 57 So. 977; Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Cone v. Virginia-Carolina Chemical Corp., 178 Miss. 816, 174 So. 554.

In the absence of statute, we believe that the law is unbrokenly to the effect that a retail seller of articles is not liable to a purchaser for an injury resulting to him through the use of the purchased articles, where the facts are those obtaining in the instant case.

Bellville Supply Co. v. Dacey, 141 Miss. 569, 106 So. 818; Orgill Bros. & Co. v. Everett, 138 Miss. 213, 103 So. 82; Pate Auto Co. v. Westbrook Elevator Co., 142 Miss. 419, 107 So. 552; Noble v. Sears, Roebuck & Co., 12 F.Supp. 181; 45 C. J. 890; 55 C. J. 138.

It would be a strange rule indeed that would entail liability upon retail merchants who purchased their goods from standard and successful manufacturers, and sold them without knowledge of defectiveness, and could not have discovered defectiveness by reasonable inspection, simply because they adopt the time-honored and universal custom of commending the goods to prospective purchasers, who also examine them, and alike.with the merchants assume any risk of injury from latent defectiveness that might result from erroneous manufacture.

Bidwell Adam, of Gulfport, and Chalmers Potter, of Jackson, for appellee.

Every necessary allegation to sustain a declaration of a breach of warranty is contained in the declaration and we, therefore, most respectfully submit that this case must now be judged not as an action for a tort but as an action for damages for the breach of an expressed warranty made in due course.

It is not always necessary to prove that the defendant actually knew the falsity of his representations; scienter being sufficiently proven by showing that the representation was made as of knowledge, when in fact the defendant was without knowledge upon the subject, or when, by reason of his position, he should have known the truth or falsity of the representation made. These qualifications do not form exceptions to the rule that scienter must be proven, but relate only to the manner in which it should be shown.

Vincent v. Corbitt, 94 Miss. 46, 47 So. 641, 21 L.R.A. (N.S) 85; Lundy v. Hazlett, 147 Miss. 808, 112 So. 591; Dunn v. Dent, 169 Miss. 574, 153 So. 789; Nash Miss. Valley Motor Co. v. Childress, 156 Miss. 157, 125 So. 705.

We most respectfully submit that every element necessary to sustain a declaration based upon a suit for damages for the breach of an expressed warranty was alleged in the declaration and was proved undisputedly at the trial of this cause.

Although it was alleged in the declaration that the injury was caused by poisonous dye or substance used in the manufacture of the socks, although the witness for the plaintiff, the doctor, testified that in his opinion it was the sizing that caused plaintiff's damage and not the dye, the defendant nowhere offered any proof that the contents or substances used by the manufacturer in sizing its socks were not harmful. In addition thereto, it was shown without dispute and without contradiction that the socks caused the injury. It was further shown, without contradiction, that the plaintiff, a man 55 years of age, had worn colored socks all of his life and had never suffered any ill effects therefrom.

Can it be said that where a person has been wearing colored socks for all of his life and has never suffered any ill effects therefrom, that when he wears these particular socks he immediately suffers ill effects, that, in addition thereto it was conclusively shown by the patch test that the socks caused these ill effects, that the jury would not have been warranted in finding from the evidence that the socks were...