Markovich v. McKesson & Robbins, Inc.

• Decision Date: 02 April 1958
• Citation: 149 N.E.2d 181,106 Ohio App. 265
• Parties: , 78 Ohio Law Abs. 111, 7 O.O.2d 10 Jacqueline Napier MARKOVICH, Plaintiff-Appellant, v. McKESSON AND ROBBINS, Inc., et al., Defendant-Appellee.
• Court: Ohio Court of Appeals

Page 265

106 Ohio App. 265

149 N.E.2d 181, 78 Ohio Law Abs. 111, 7 O.O.2d 10

Jacqueline Napier MARKOVICH, Plaintiff-Appellant, v. McKESSON AND ROBBINS, Inc., et al., Defendant-Appellee.

Court of Appeals of Ohio, Cuyahoga County.

April 2, 1958.

Lawrence E. Stewart, Cleveland, for plaintiff-appellant.

John R. Kistner, Cleveland, for defendant-appellee.

SKEEL, Presiding Judge.

This appeal comes to this court from a judgment for the defendant entered on the verdict of a jury as directed by the court on defendant's motion for judgment at the conclusion of plaintiff's presentation of her evidence. The action is based on plaintiff's amended petition seeking damages, her first cause of action being in negligence in that defendant manufactured, sold and distributed a chemical product known as 'Prom Home Permanent' which was alleged to be unfit and dangerous for human use when applied as directed, and in her second cause of action claiming damages by reason of a breach of warranty made in inducing the sale and use of such product.

It is alleged by the plaintiff that the defendant, Prom Cosmetics, (a division of the Gillette Company) manufactures and sells a chemical compound known as 'Prom Home Permanent.' Plaintiff says that in selling or causing such preparation to be sold to plaintiff for her personal use and when applied as intended, the defendant warranted that said product was of merchantable quality and fit to be used in the administration of a cold permanent wave and that it 'was wholesome, safe and suitable under all circumstances.'

The plaintiff alleges that on June 9, 1954, she purchased from the defendants a package of its 'Prom Home Permanent' and used it in an attempt to administer a permanent wave to her hair. Plaintiff then alleges that she followed the directions furnished by the defendants but because such product was unwholesome, injurious, deleterious and unfit for human use, she, as a direct result of the carelessness and negligence of the defendants and by reason of their breach of warranty, which warranty induced the sale, suffered injury to her face and scalp and hair (her hair almost completely falling out).

The defendant, Prom Cosmetics, by answer, entered a general denial. The defendant, McKesson and Robbins, Inc., was dismissed from the case before trial.

The evidence introduced by the plaintiff tends to establish that the plaintiff was a patient of 'Sunny Acres,' a hospital then managed by the City of Cleveland, caring for patients suffering from tuberculosis. That quite some time prior to June 9, 1954, she had been subjected to a pneumotomy operation. Upon permission being given by the hospital authorities for the plaintiff to administer to herself a 'home Permanent Wave,' plaintiff, with the help of a nurses' aide, shampooed her hair and then had the nurses' aide purchase for her immediate use a 'Prom Home Permanent' from the concession stand in the hospital. Her testimony on this part of her case was as follows:

'Q. You have indicated to us you received a shampoo; is that correct? A. Yes, sir.

'Q. Now, what, if anything, occurred after you had received the shampoo? A. Well, I asked Mr. (sic) Liggins if she would give me a home permanent and she told me I would have to get permission for that. She says, 'I will let you know.' So she came back later after she gave me the shampoo and she said that 'I got permission. It would be all right.' So she asked me what kind of permanent I wanted to get. So I told her I had been listening to Prom ads from my earphones and it seems to be the easiest one, won't have to go through all of that neutralizing, and everything, so I told her to get the hard to wave Prom. So when she came back she had bentle wave Prom. She told me they didn't have that one, so she says, 'I think maybe this one may be better for your hair anyway.' So I said, 'Okay,' and then we----

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'Now, what, if anything, occurred when Mrs. Liggins came back to your room with the Prom and the spin curlers? Well, we opened the box, it contained a bottle of lotion, some cotton, packages of papers, there may have been two little packages of papers and the direction sheet. So we started to read the directions. I was reading them out loud. She was looking over my shoulder. We read them several times. So I told her, 'You might as well take a test curl first and we will start on that,' because I always get a test curl in any beauty shop I have ever went first. So she took----'

The directions introduced into evidence contain, among other things, the following:

'Prom Home Permanent--Now--New Easier Method * 15 Minute Timing * Towel Turban Control.

'Prom leaves your hair in better condition than any other waving method because----

'A The clear water rinse removes any unused waving lotion from your hair.

'B Prom's new Self-Neutralizing is a gentler, more natural action--no separate neutralizer is needed!'

Both the plaintiff and the nurses' aide testified that in applying the 'Prom Home Permanent' they read the directions with greast care and followed them explicitly. Two test curls were made with apparent success and then they completed the waving of plaintiff's hair, using all of the waving lotion in complete accord with the instructions. The plaintiff's hair was then covered with a towel, turban fashion, as directed. After waiting about six hours, the turban was removed and they attempted to remove the spin curlers. The plaintiff testified on this subject as follows:

'Q. And when the six hours had passed, what, if anything, occurred? What did you do? A. I removed the towel and I went over to the sink and I could see it wasn't dry, got scared, so I touched it, felt like melted rubber, something, so I took one curl out, so the hair pulled out of the curler and it looked like lye had eat it up, it was just stringy, that come out in strings so I got excited. I turned my light on, so Mrs. Trowbridge came down to my room and answered the light and when she came in she said, 'What's the matter?' So I am crying. By that time she gets a chair there. She said, 'Here, sit down in the chair.' She was as excited as I was almost, so she started taking the curlers out and the hair was all falling, then, in strings, melted, and in the sink and she was, in the meantime, trying to pour water over it, trying to get it out to see what is loose, what to do, so I still says, 'Don't let all my hair go through the sink.' I grabbed some of it, threw it up on the sink so I could save it, so she got through and they was a few strains here and there and the test curls that we had taken were hanging so she took the scissors, had to take scissors to get what was left off.

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'Incidentally, can you tell us whether or not there was any order in connection with the Prom Home Permanent lotion? Yes; they were. It had a terrible odor like something burning. I know some permanents they do have an odor to them, but I never smelled one that bad. So bad a patient down the hall she thought the hospital was on fire. She smelled it all the way down to her room, about five doors down.'

The nurse, referred to by the plaintiff, who helped to remove the spin curlers, corroborated in complete detail plaintiff's description of the results of the loss of her hair by the use of the defendants' 'Prom Permanent' lotion.

There is no direct evidence in the record as to the chemical content of defendant's 'Prom Permanent' wave preparation purchased by the plaintiff for the reason that it was all used as directed by the defendant's instructions contained in the box in which the lotion was packed. An expert witness (a medical doctor specializing in dermatology), testified with regard to a chemical ingredient (Thioglycolate contained in the Prom Permanent Wave. This witness, after examining the patient's head and hair about November 12, 1954, testified:

'My diagnosis was that she sustained a contact dermatitis of the scalp, eyelids, forehead and ears due to the direct, irritating chemical. A contact dermatitis is a dermatitis or inflammation of the skin which results from coming in contact with something that inflames it or irritates it and we speak of these things as contact dermatitis. She also had an injury to the hair itself. One, that she actually had a chemical haircut. The chemical was applied to her hair and resulted in excessive softening of the hair so that when it dried it became brittle and broke, so she had a chemical haircut, actually. The hairs, were still there, just like short grass would be after cutting the lawn. Secondly, she had a quantitative loss of hair where the hair actually came out of her scalp. That was manifested by the fact that on tugging and pulling it brought out complete hairs, and you could see those little bulbs which I refer to as papilli and it was manifested by the fact that every time she combed her hair it came out. It is also manifested by the fact that her hair was obviously tight in certain areas as compared with the fact of her hair coming out through tugging, loads of hair.'

This witness also testified, in answer to a hypothetical question describing in detail the plaintiff's use of 'Prom' and the results that immediately followed the loss or breaking off of plaintiff's hair, as follows:

'I believe there is a direct causal relationship between the application of the chemical known as Prom to the events that followed, namely, a reaction on the hair by over-swelling resulting in its increasing brittleness and breaking off; that there is, further, an injury to the hair throughout its entire length, clear down to its papilla, resulting in a loss of hair on the scalp; and, thirdly, I believe there is a direct relationship between the application of this chemical, called Prom, and the inflammation that followed on the surface of the scalp, the skin involving the scalp, forehead, eyelids and behind the ears.'

As indicated, the court at the conclusion of the plaintiff...