John A. Brown Co. v. Shelton

• Court: Oklahoma Supreme Court
• Writing for the Court: BLACKBIRD; HALLEY; BLACKBIRD; BLACKBIRD
• Citation: John A. Brown Co. v. Shelton, 391 P.2d 259 (Okla. 1963)
• Decision Date: 22 October 1963
• Docket Number: No. 39589,39589
• Parties: JOHN A. BROWN COMPANY, Inc., Plaintiff in Error, v. Wymanee SHELTON, Defendant in Error.

Page 259

391 P.2d 259

1963 OK 239

JOHN A. BROWN COMPANY, Inc., Plaintiff in Error, v. Wymanee SHELTON, Defendant in Error.

No. 39589.

Supreme Court of Oklahoma.

Oct. 22, 1963.

Supplemental Opinion on Rehearing April 7, 1964.

SYLLABUS BY THE COURT

1. Detrimental effect upon the human body by alteration or disfiguration of any of its natural appendages is not required to be accompanied by physical pain or suffering, or trauma, in order to constitute physical injury.

2. Title 23 O.S.1951 & 1961, section 35, authorizes recovery, in an action for breach of the warranty of fitness of an article of personal property, fair compensation for loss incurred in a competent and good faith effort to use it for the particular purpose for which it was manufactured and sold. Such recovery includes damages for any loss contemplated by the parties to the warranty at the time it became effective.

3. Where, in the present breach of warranty action, defendant contended, on appeal, that the trial court erred in including in its instructions to the jury, instructions pertaining to both express and implied warranty, on the claim that plaintiff relied wholly upon an express oral contract of warranty, but the record revealed that plaintiff's petition alleged breaches of both types of warranty, and that she introduced evidence pertaining to both, defendant's said contention constitutes no cause for reversal.

4. Where plaintiff never had possession and/or control of the subject can of Tint 'N Set after the day of her alleged injuries from using it, and the evidence furnished no reasonable explanation, or cause, of her hair's matting and gumming, than said use, and there was no evidence to indicate that plaintiff's scalp and/or hair was any different from that of a normal person, plaintiff was not obliged to prove what element, or combination of elements, in said product injured her hair, and that she was a normal person, or that such a person would have had the same experience with said product.

5. A retailer who sells a hair preparation like Tint 'N Set in a sealed can does so under the implied warranty that such product is suited and fit for the purpose it was manufactured and sold.

6. Where a portion of the damages claimed by plaintiff was for shame, embarrassment and humiliation, and she introduced competent evidence reasonably tending to show that type of detriment, and there was nothing in the record to indicate that, in arriving at its verdict, the jury was actuated by passion, partiality or prejudice, said verdict, and the judgment thereon, could not be held excessive.

Appeal from the District Court of Oklahoma County; Donald E. Powers, Judge.

Action by plaintiff against the manufacturer of Tint 'N Set, and a retailer that sold her a can of it, as defendants, to recover damages for breach of warranty, on account of said product's injuries to her hair, and for shame, embarrassment and humiliation resulting from its alleged effect on said hair. After dismissal of the manufacturer for want of jurisdiction, plaintiff obtained a verdict and judgment against the retailer. After the overruling of the retailer's motion for a new trial, said defendant appealed. Affirmed.

Monnet, Hayes, Bullis, Grubb & Thompson, Oklahoma City, for plaintiff in error.

Miller, Melone, Wilson, Adams & Rogers, by Cleeta John Rogers, and Floyd L. Martin, Jr., Oklahoma City, for defendant in error.

BLACKBIRD, Chief Justice.

This appeal involves an action instituted by defendant in error, as plaintiff, against plaintiff in error and Tint 'N Set, Inc., as defendants, for damages resulting from said plaintiff's purchase in plaintiff in error's retail department store, on March 15, 1958, of a preparation manufactured by the named corporation, and sold by plaintiff in error for use in dying human heads of hair, under the trade name of: 'Tint 'N Set.' As the manufacturing corporation was dismissed as a party to the action, upon the trial court's sustaining of said defendant's plea to the court's jurisdiction over it, in our further reference to the parties as they appeared in that court, the word 'defendant' will refer only to John A. Brown Company, Inc., retailer of the product.

Plaintiff's alleged cause of action, as set forth in her petition, was for breach of warranty in the sale to her of the Tint 'N Set; and her allegations were apparently drafted to admit of proof of either an express warranty, or an implied warranty of suitability and fitness, or both. She alleged, among other things in substance, that the can of Tint 'N Set she purchased was labeled 'blonde', with additional representations on its exterior such as: 'YOU CAN SHAMPOO IT OUT EASILY'; but that when she attempted to apply it, the product came out of the can an 'anemic 'gold' or 'yellow"; that when she later attempted to shampoo her hair to remove said substance, the hair became '. . . extremely matted, sticky, stiff and brittle.' She further alleged '* * * that further attempts to shampoo the said objectionable product from her hair resulted in large quantities of . . . (it) . . . breaking off near the scalp, thus ruining the permanent . . . she had at that time in her hair, leaving . . . (her) . . . with hair less than one inch long over a portion of . . . (her) . . . scalp. That this condition caused . . . (her) great humiliation, shame and embarrassment and forced her to have to wear a scarf to cover her head whenever she went out in public. * * *' The amount of damages plaintiff sought was $5,000.00 for '. . . loss of hair, ruination of permanent, shame, embarrassment and humiliation.'

In its answer, defendant denied generally all allegations of plaintiff's petition, except that it was engaged in the retail sales business, and that plaintiff purchased the Tint 'N Set from it. Additionally, defendant denied specially that it had warranted the hair preparation to plaintiff 'in any respect', and denied it was unfit and unsuited for the purpose for which it was sold.

At the trial before a jury, the evidence showed, among other things, that: Before going to defendant's retail store in Capitol Hill, on the day of her Tint 'N Set purchase, plaintiff was wearing her hair only two or three inches long, 'on the order' of a 'poodle' hair cut; that she had had a 'permanent' about three weeks before, but it had been shampooed two or three times since; that she had seen Tint 'N Set advertised on television and thought that, by using it, she could probably see how she would look with blonde hair, and, if she didn't like it, could merely wash the Tint 'N Set out of it, rather than trying to restore the hair's original color by using a hair dye, which latter would be necessary if she tried to make it blonde with a hair bleach; that, on the day in question, before the purchase, two of her friends, a Mrs. Reubell and a Mrs. Wall, were at her home when she decided to go to defendant's store to see about purchasing the Tint 'N Set; that they accompanied plaintiff and sat in the automobile, double parked, while she went into the store; that upon entering the store, she proceeded to its cosmetic department and inquired of a Mrs. Stocker, one of defendant's employees there, if the store had Tint 'N Set; that Mrs. Stocker answered in the affirmative, found a can of it, marked 'blonde', on one of the department's shelves, and showed it to plaintiff; that one or both read the statements stamped on the can, including an admonition not to use it on a new permanent until it had been shampooed two or three times. Plaintiff testified that, in discussing her permanent with Mrs. Stocker, the latter '* * * assured me if that was on the can, that it would be good.' Plaintiff also testified that Mrs. Stocker said: '* * * that she had never had any complaints about it (Tint 'N Set) * * *'; that all her customers that bought it were satisfied, as far as she knew. Plaintiff further testified that: 'the warranty on the can seemed sufficient along with her (Mrs. Stocker's) words and so I bought the can.' According to Mrs. Stocker's testimony, plaintiff asked her '* * * if it (Tint 'N Set) worked and I said that I had seen results from it. That is as far as anything was said.'

The evidence further showed that when plaintiff returned to her home with her two aforenamed friends and the can of Tint 'N Set, they read the directions on the can, and all three (in turn) sprayed it from the can onto plaintiff's hair. Plaintiff, as well as the two other ladies, testified that the substance (when sprayed out of the can) was not the right color--that it did not appear blonde, but was a 'yellowish-green color'; that plaintiff's hair was also sticky and matted; that the three ladies then decided something was wrong; that they attempted to shampoo the Tint 'N Set out of plaintiff's hair, without success, and that the hair started coming out in the process, until it became real short on parts of her scalp, and her two friends started 'teasing' her about having a 'burr'; that thereafter, on the same day, plaintiff telephoned defendant's store and told an employee, named Ann Parker, that she was dissatisfied with the color, and said employee told her that, if she would bring the Tint 'N Set can back, its purchase price would be refunded to her; that she did this and defendant refunded her money through Mrs. Shelton; that later the same day plaintiff telephoned the store and told its cosmetic department's manager, Mrs. Butcher, about the matter; that, in fulfillment of her promise to plaintiff over the phone, Mrs. Butcher, after consulting with defendant's store manager, Mr. Morris, made an appointment for plaintiff to come to the store's beauty salon and have her hair shampooed there.

Before the close of the testimony elicited on plaintiff's behalf, her attorney introduced in evidence a photostatic copy of a letter written April 1, 1958, for defendant, by Mrs. Cora Kent, buyer for its cosmetic department, to the Tint 'N Set...