Jacquot v. Wm. Filene's Sons Co.

• Decision Date: 09 April 1958
• Citation: 149 N.E.2d 635,337 Mass. 312
• Parties: May Belle JACQUOT et al. v. WM. FILENE'S SONS CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 635

149 N.E.2d 635

337 Mass. 312

May Belle JACQUOT et al. v. WM. FILENE'S SONS CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 5, 1958.

Decided April 9, 1958.

Nathan Fink, Boston (Richard D. Gilman, Brookline, with him), for plaintiffs.

James D. Casey, Boston, for defendant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and CUTTER, JJ.

CUTTER, Justice.

This is an action of contract, brought in the Municipal Court of the City of Boston, to recover for injuries to Mrs. Jacquot caused by an artificial fingernail kit purchased from the defendant. Her husband asks consequential damages. The trial judge found for both plaintiffs and denied the defendant's requests for rulings that the evidence did not warrant findings for either plaintiff. Upon report to the Appellate Division, the findings were vacated and findings for the defendant were ordered. The plaintiffs appealed. The facts, in their aspect most favorable to the plaintiffs, appearing upon the report are stated below.

Mrs. Jacquot, a cosmetics demonstrator of long experience, was employed by Hazel Bishop Company and assigned to work in the defendant's store. In April, 1955, she bought from the defendant a fingernail kit made by another company. The kit consisted of five vials containing liquids and a powder. Mrs. Jacquot read the enclosed instructions and followed them in applying the material from April to July, 1955. Compare Taylor v. Jacobson, Mass., 147 N.E.2d 770. These instructions 'included * * * a warning against the continued use of the product for persons with allergies.' Over objection and a request for a report, Mrs. Jacquot testified that the defendant's salesgirl told her 'how wonderful the product was' and that 'it would enhance my hands.' The trial judge found that the purchase was made 'upon the express warranty * * * that the ingredients * * * would grow * * * shapely nails.' Mrs. Jacquot made known the purpose for which she was buying the kit and relied upon these express warranties, and any applicable implied warranties.

In July, 1955, Mrs. Jacquot's fingernails became cracked and inflamed, with the nails turning brown. She had never used the product before. On adequate medical testimony, summarized below, the trial judge found that use of the product caused the injuries.

Upon discovery of the injuries, Mrs. Jacquot went to a medical clinic on the defendant's premises and was treated by a physician. She reported the injury to him on July 19, 1955, and to the floor manager of the defendant's cosmetics department on August 1, 1955. We consider the case on the assumption that the trial judge correctly found that Mrs. Jacquot gave to the defendant sufficient notice of the alleged breach of warranty. See G.L. (Ter.Ed.) c. 106, § 38.

Mrs. Jacquot was also treated by a qualified dermatologist. The history given by her to him showed 'that she had previously had * * * transitory skin eruptions following the use of perfume and mascara.' Mrs. Jacquot herself so testified. He gave as his opinion (a) 'that the condition of the tips of her fingers and fingernails was caused by the artificial fingernails' and that 'in reference to * * * [her] skin * * * [she] became abnormal to the reaction'; (b) that 'the average normal person does not have * * * [such] eruptions'; and (c) 'that the plaintiff was allergic to the liquid in the kit * * * [and] had a peculiar sensitivity to this particular product.' In his ten to eleven years of practice as a dermatologist this 'unusual case' was 'the first * * * he had ever seen of a person having a dermatitis resulting from the use of the' kit. This doctor, with the contents of the kit, conducted patch tests on Mrs. Jacquot but not on other persons. 'No analysis, chemical or otherwise, was made of the ingredients * * * in the kit.' The defendant in 1955 sold over five hundred kits and 'this case was the only claim of notice * * * of any injury * * * as a result of the use of * * * [the] kit.'

Prior to purchase of the kit, Mrs. Jacquot had reported to the defendant's clinic for treatment of an 'inflamed eye following the use of mascara.' Trouble with her eyes was ended when she stopped using mascara. She reported to the doctor at that time that she was allergic to fingernail polish.

1. The salesgirl's statement that the product was 'wonderful' was only seller's talk and has no legal significance. Ireland v. Louis K. Liggett Co., 243 Mass. 243, 248, 137 N.E. 371. The express warranty that the use of the product would 'enhance' Mrs. Jacquot's hands, when taken with the instructions against its continued use by persons with allergies, would not support a finding that the express warranty meant more, or had a wider scope, than the statutory implied warranty, under G.L. (Ter.Ed.) c. 106, § 17(1), ¹ that the product was reasonably fit for use as an artificial fingernail kit.

2. For a plaintiff to recover for breach of an implied warranty of fitness of a garment, a cosmetic, or comparable product, sold for use on or near the person, the plaintiff must show (assuming, for purposes of discussion, that the implied warranty, reliance thereon, and notice of its alleged breach have been shown): (1) that personal injuries were suffered because of use or wearing of the article; and (2) that the article was unfit to be worn or used by a normal person. Bradt v. Hollaway, 242 Mass. 446, 449, 136 N.E. 254; Payne v. R. H. White Co., 314 Mass. 63, 65, 49 N.E.2d 425; Longo v. Touraine Stores, Inc., 319 Mass. 727, 728, 66 N.E.2d 792; See, however, Flynn v. Bedell Co. of Massachusetts, 242 Mass. 450, 453-454, 136 N.E. 252, 27 A.L.R. 1504. This proof would be necessary not only with respect to the implied warranty, but with respect to a comparable express warranty. See Graham v. Jordan Marsh Co., 319 Mass. 690, 692, 693, 67 N.E.2d 404.

By the dermatologist's testimony, Mrs. Jacquot established a causal relationship between the product and her injury. Even if this causal relationship could also have been inferred from the fact that the injuries followed upon her first use of the product, she has not sustained the burden of proof resting upon her that the product was unfit to be used by a normal person or that it had some 'intrinsically unhealthy quality * * * that would affect a normal person.' See the Longo case, supra, 319 Mass. at page 728, 66 N.E.2d at page 793. There was no evidence whatsoever of analysis of the chemical content of the kit. In the absence of direct testimony about the sensitivity of her skin, there might be a presumption, or permissible inference, that she was normal. See Payne v. R. H. White Co., 314 Mass. 63, 65, 49 N.E.2d 425. She is bound, however, by her own testimony that 'following the use of perfume, nail polish and mascara, she had temporary blotches on her skin,' there being no testimony as to her skin more favorable to her. See Muir Brothers Co. v. Sawyer Construction Co., 328 Mass. 413, 415, 104 N.E.2d 160.

Any presumption that the plaintiff's skin was normal, if there is such a presumption under the Payne case, supra, 314 Mass. at page 65, 49 N.E.2d at page 426, disappeared once her own and the medical testimony, warranting a finding that her skin was not normal, was introduced. See Allen v. Mazurowski, 317 Mass. 218, 220-221, 57 N.E.2d 544; Epstein v. Boston Housing Authority, 317 Mass. 297, 301-303, 58 N.E.2d 135. Any inference that her skin was normal ceased to be permissible where (a) her won testimony was to the contrary and (b) there was no affirmative testimony that she was normal. The trial judge was not warranted by the evidence in the record in finding or inferring, as he did, 'that the plaintiff's skin and fingernails were not sensitive and that she never had trouble with them before.'

The case is unlike Carter v. Yardley & Co. Ltd., 319 Mass. 92, 94, 64 N.E.2d 693, 164 A.L.R. 559 (where it did not appear that there was any evidence whatsoever about the sensitivity of the plaintiff's skin), Graham v. Jordan Marsh Co., 319 Mass. 690, 693, 67 N.E.2d 404 (where, the plaintiff having testified that there was nothing wrong with her skin before using...