Marra v. Jones Store Co.

• Decision Date: 01 March 1943
• Docket Number: No. 20174-A.,20174-A.
• Parties: MARRA v. JONES STORE CO.
• Court: Missouri Court of Appeals

170 S.W.2d 441

MARRA v. JONES STORE CO.

No. 20174-A.

Kansas City Court of Appeals. Missouri.

March 1, 1943.

Rehearing Denied April 5, 1943.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

Action by Teresa Marra against Jones Store Company for injuries sustained from infectious dermatitis appearing after plaintiff had worn a blouse purchased from defendant. Judgment for plaintiff after defendant's requested peremptory instructions were refused, and defendant appeals.

Affirmed.

Clay C. Rogers and Mosman, Rogers, Bell & Conrad, all of Kansas City, for appellant.

John C. Nipp, E. E. Thompson, A. H. Osborne, and Thompson & Osborne, all of Kansas City, for respondent.

SPERRY, Commissioner.

Teresa Marra obtained a judgment for $3,000 against the Jones Store Company based on a verdict signed by ten jurors assessing her damages at that sum.

The petition states that the defendant is engaged in the mercantile business and in the sale of various articles of merchandise to the public; that on October 27, 1938, plaintiff personally, while in defendant's department store, purchased a certain satin colored garment for her own use as wearing apparel; "that the said garment purchased by plaintiff as aforesaid was not reasonably fit for the use and purpose for which it was purchased in that said material in said garment contained poisonous, dangerous, unsafe and irritant chemicals and substances the exact nature of which plaintiff at this time is unable to state; that upon wearing said garment by reason of said poisonous, dangerous, unsafe and irritant chemicals and substances in the material of the aforesaid garment and as a direct result thereof plaintiff was caused to sustain severe and permanent injuries," which are then described as an irritated and infected condition of the skin of the shoulders, neck, arms and chest, causing bodily pain, mental anguish, itching, discomfort, breaking out of blisters on her body, and other ailments including headaches, nervousness and dizziness, all to her damage in the sum of $3,000.

The answer was a general denial.

Defendant has duly appealed and the assignments of error present for consideration the ruling of the court in denying defendant's requested instruction in the nature of a demurrer at the close of plaintiff's case, and a similar instruction at the close of all the evidence; and the ruling of the court in admitting testimony in behalf of plaintiff over the objection of defendant; and in excluding proof offered by defendant. Defendant did not stand upon its demurrer at the close of plaintiff's case in chief but offered evidence. On the question of submissibility raised by the final demurrer plaintiff is entitled to have it determined by a consideration of all the evidence in the light most favorable to her, together with all favorable inferences which may reasonably be drawn therefrom. Smith v. Kansas City Public Service Co., 328 Mo. 979, 990, 43 S.W.2d 548. A search of the record thus made shows testimony and evidence as follows:

On October 27, 1938, plaintiff purchased from defendant for her own use a wine colored satin blouse and paid $1.95 for it. Plaintiff testified that at the time of such sale she inquired whether or not the blouse would fade or shrink and was informed that it would not, and that it was guaranteed fast color; that the blouse was wrapped in a package and delivered to plaintiff; that she took it home with her and immediately took it out of the wrapping and put it on a hanger in the clothes closet where it did not come in contact with any other clothing or object, and had not been in contact with any object from the time it was handed to her in defendant's store until she got home; she wore the blouse November 11, 1938, to her work as a clerk where she was employed; that on said day she wore the blouse from 8 a. m. to 6 p. m., and did not perspire any more than normal; in the afternoon of that day she noticed an itching sensation around her neck and arms mostly, and when she got home and took the blouse off the dye had faded from the blouse on her arms and undergarment at her arm pits; it itched and would not wash off; she applied peroxide which gave her some relief; she did not wear the blouse again, but on the next day her arms and neck itched and burned, and when she got home there was a mass of tiny red pimples all over her arms and some on her neck and left shoulder; every part of her body where the blouse had made direct contact was a solid mass of red pimples; her arms swelled, itched and burned, and on the 13th day of November, she went to her doctor who examined her and prescribed medicine; blisters appeared on her arms and they burst and others formed; she applied medicine which was prescribed by cotton pads; wine colored dye remained on the pads where and when the blisters broke; the secretion from the blisters was discolored and infection spread where the blisters came in contact with her skin; she was off work two weeks following the occurrence and then resumed her work for two weeks; before she went back to work all the swelling and redness had subsided and in about ten days thereafter all itching had ceased; she quit work because she did not feel well and finally became bed-fast about one month after she had gone to her doctor; she had never suffered any skin rash or infection or hives and had never had any skin eruption before that time; she had previously and had since worn similar blouses without ill-effects.

Plaintiff reported her skin ailment to the defendant on November 15, and when she did she was asked "if I minded that they sent out their own doctor for an examination." Dr. Polsky made the the examination for defendant; plaintiff gave him a part of the blouse. On or about January 5, 1939 plaintiff, at the suggestion of her doctor, sent a part of the blouse to the Kansas City Testing Laboratory for analysis and test. Following the development of the skin disease plaintiff suffered physical weakness and distress in various ways for which she received treatment from her doctor consisting of medicines to take as well as medicines by injection, and on account of her disability she stated she was confined to her home for a period of about five months. The various kinds of medicines prescribed and the prescriptions and the cost of same were shown in detail by the testimony of her druggist. Plaintiff was 33 years of age and unmarried.

Plaintiff's physician was Dr. Max Goldman. He testified that he had known and observed plaintiff since childhood, and that he first examined her in reference to the skin ailment on November 13, 1938, and diagnosed her condition as infectious dermatitis which was a condition of inflammation of the skin caused by infection and irritation. Over the objection of defendant the doctor was permitted to state the cause of the dermatitis which he found as follows: "From the history of the case, I came to the conclusion that this was definitely caused by irritation from the garment she wore." He also said that in any similar type of dermatitis "you must have some irritating or toxic foreign substance which irritates the skin sufficiently to produce a reaction — an inflammatory reaction"; and that "the word `toxic' refers to the nature of the substance. If it is of a poisonous or irritating nature it is a toxic substance — poisonous substance — an obnoxious substance or irritating substance. All those things mean about the same thing — toxic." This witness further testified that as a result of the irritating dermatitis plaintiff suffered loss of strength, weakness and low blood pressure; the acute symptoms of the disease subsided in the course of five or six days and he prescribed other medicine which controlled the dermatitis satisfactorily and it gradually subsided; he then treated plaintiff for her symptoms of general weakness; he gave her medicine to take and administered drugs by injection; the condition of dermatitis was discernible to the eye for several weeks. In answer to a hypothetical question he gave it as his opinion that the condition of dermatitis could be caused by the contact of the blouse with the skin. Witness also stated that he had seen and observed plaintiff frequently since she was three or four years of age and that he had always observed her to be a strong, healthy and well stabilized girl; that taking into consideration his treatment and knowledge of the plaintiff and the tests made he could not find anything else that could have caused plaintiff's condition; that it was his opinion that the blouse in question contained some substance which was irritable or poisonous which caused plaintiff's condition. On cross-examination the following questions and answers appear:

"Q. Now you say that she — her dermatitis was caused by some substance in this garment? A. The dermatitis was caused by contact with this particular garment; yes.

"Q. You say it was caused by some substance in the garment? A. It must have been; that is right.

"Q. Name the substance. A. I wish I could, but I can't.

"Q. You don't know the proportion it was in the garment? A. No, sir.

"Q. What? A. No, sir.

"Q. You are just speculating about what kind of substance it was in the garment that caused her dermatitis. A. My conclusion is it must have been some substance in the garment — in the fabric.

"Q. But as to the substance, what substance it was, you are just speculating, aren't you? A. Certainly."

Witness had suggested that a portion of the garment be sent to the laboratory for examination because he wanted to learn all he could about the thing that precipitated the particular dermatitis; he had seen the report of the chemist which was shown to him by the plaintiff, but he did not remember what the report said. The doctor further testified that he made tests in order to find any organic disturbances, but that had no reference to determining whether or not plaintiff was allergic to the...