McKisson v. Sales Affiliates, Inc.

• Decision Date: 07 June 1967
• Docket Number: No. A--11814,A--11814
• Parties: L. A. McKISSON, Petitioner, v. SALES AFFILIATES, INC., Respondent.
• Court: Texas Supreme Court

Page 787

416 S.W.2d 787

L. A. McKISSON, Petitioner, v. SALES AFFILIATES, INC., Respondent.

No. A--11814.

Supreme Court of Texas.

June 7, 1967.

Dissenting Opinion June 21, 1967.

Rehearing Denied July 5, 1967.

Merchant & Barfield, Wayne B. Barfield, Amarillo, W. James Kronzer, Houston, for petitioner.

Simpson, Adkins, Fullingim & Hankins, John D. Curtis, Amarillo, for respondent.

NORVELL, Justice.

Section 402A of the American Law Institute's Restatement of the Law of Torts (2d Ed.), hereinafter referred to as the Torts Restatement, reads as follows:

'(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

'(a) the seller is engaged in the business of selling such a product, and

'(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

'(2) The rule stated in Subsection (1) applies although

'(a) the seller has exercised all possible care in the preparation and sale of his product, and '(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.'

Insofar as foodstuffs for human consumption are concerned, this section states the law as followed in Texas. Decker & Sons v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942). We are further of the opinion that as a logical proposition, the rule stated in Decker should be held applicable to defective products which cause physical harm to persons. As pointed out by the concurring justice in the Court of Civil Appeals, no sound distinction can be drawn between the use of an eye-wash solution that impairs or destroys vision and a foodstuff which causes illness. (408 S.W.2d 124, 1. c. 128). ¹

In Comment (a) under Section 402A of the Torts Restatement, it is said:

'This Section states a special rule applicable to sellers of products. The rule is one of strict liability, making the seller subject to liability to the user or consumer even though he has exercised all possible care in the preparation and sale of the product. * * * The rule stated here is not exclusive, and does not preclude liability based upon the alternative ground of negligence of the seller, where such negligence can be proved.'

In Decker, this court said:

'While a right of action in such a case is said to spring from a 'warranty,' it should be noted that the warranty here referred to is not the more modern contractual warranty, but is an obligation imposed by law to protect public health. According to Prof. Williston the law of warranty is older by a century than the action of special assumpsit, from which the modern law of contracts developed. 1 Williston on Sales, p. 368, § 195; Jeanblanc, 'Manufacturer's Liability to Persons Other Than Their Immediate Vendees,' 24 Va.L.Rev. 134, 158, at p. 148. The action on a warranty sounded in tort was in the nature of an action on the case for deceit, although it was not necessary to plead or prove scienter. 1 Williston on Sales, p. 371.'

There is an extensive literature concerning the history and nature of the so-called rule of strict liability. Concededly, the doctrine is one of comparatively recent and rapid development. We need not here reiterate its history. Cited in the margin are those authorities and treatises deemed most important and persuasive in bringing the doctrine to its present status. ²

We are further in agreement with the Torts Restatement rule relating to contributory negligence as a defense to an action based upon strict liability, viz:

'Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. * * *' § 402A, Comment (n), Contributory Negligence.

The rules above stated control the disposition of this case. The product involved is a permanent wave preparation known as 'Zotos Lanolin Bath'. L. A. McKisson brought suit against Sales Affiliates, Inc., the distributor ³ of the Zotos preparation, for damages sustained by his wife, Ellen McKisson, as a result of her using the lotion. Mrs. McKisson owned a beauty shop in Amarillo, Texas and on April 13, 1965, one of her employees gave her a permanent wave treatment using the Zotos lotion. Shortly after said permanent treatment was completed, substantial amounts of Mrs. McKisson's hair fell out and burns of the face and scalp became apparent. The cause was tried to a jury which found that:

The Zotos preparation was not reasonably fit for the purpose of giving permanent waves; Ellen McKisson was damaged as a result of using such product for a permanent wave; the use of the product was the proximate cause of the damages sustained by Ellen McKisson; Sales Affiliates, Inc. failed to provide adequate directions for the use of Zotos preparation; such failure was negligence; such negligence was the proximate cause of Mrs. Kisson's injuries; Zotos preparation should not be applied to bleached hair; a reasonably prudent beauty operator in the exercise of ordinary care would have known that the wave lotion should not be applied to bleached hair; the application of the Zotos preparation to Ellen McKisson's hair was negligent; such negligence was a proximate cause of the damages sustaind by Mrs. Kisson; and $1,000.00 would fairly and reasonably compensate the plaintiff, L. A. McKisson for the injuries sustained by his wife in using the Zotos preparation. The trial court rendered judgment for the plaintiff upon the jury's findings. The Court of Civil Appeals reversed and rendered judgment that plaintiff take nothing. 408 S.W.2d 124.

The Court of Civil Appeals declined to apply the doctrine of Decker & Sons v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942), to the present case because foodstuffs were not involved and there was no privity between the parties. Said Court further held that any cause of action based upon negligence in failing to provide adequate instructions for the use of the product was defeated by the findings of contributory negligence.

Quite often, the extension of common law doctrines is left to the court of last resort by intermediate courts and the action of the Court of Civil Appeals in the present case is in accordance with similar actions taken by other appellate courts. ⁴

Only three witnesses testified at the trial, Mrs. Ellen McKisson, her husband, the plaintiff, L. A. McKisson, and Theodore P. Pritsker, a chemical engineer, called as a witness by the plaintiff. The defendant called no witnesses.

Mrs. McKisson testified that she was 52 years of age and the owner of a beauty shop and gift shop; that she was not, however, a licensed beauty operator; that on February 3, 1965, her hair had been bleached by using a lightener and peroxide; that in February 1965, a salesman gave her a sample of Zotos Lanolin Bath; that this preparation remained in the same condition from February until she attempted to use it on April 13, 1965; that on the last date mentioned, she requested one of her employees to give her a permanent using the Zotos preparation consisting of a hair conditioner and a neutralizer; that the lotion container carried a label which said, 'Zotos Lanolin Bath, lanolized waving lotion, formula No. 1, for normal or resistant hair, follow accompanying directions. Zotos, Division of Sales Affiliates, Inc., Distributor'; that no directions accompanied the sample; that her hair was normal, that is, her hair was good and strong, had not been misused or abused, was of good texture and 'in very good condition'; that she considered that her hair was 'normal'; that she would not classify her hair as resistant but considered that she had normal hair on April 13, 1965, although it had been bleached in February; that although she was not a licensed operator, she knew that ordinarily a different formula was used for bleached hair than for unbleached hair and that most preparations which were not suitable for bleached hair contained as part of the label a clear statement, 'Do not use on bleached hair', or some similar statement.

She further testified that the operator first made a test curl which was apparently satisfactory; that her hair was then rinsed and put up on rollers and then treated with the permanent wave lotion; that after the lotion had been applied, the curl was tested until it reached the 'right stage of curl', and then the neutralizer was applied; that when this was done, 'about the time we got down to almost to the base of my neck back here, well, the top part all started falling off, hair, rollers, and everything'; that her employee immediately starting pouring water on her hair to wash out the lotion, but although the hair on the side of the head did not fall out, all the hair on the top, the crown of her head, was gone; that by morning, her eyes were swollen shut and it took 30 to 40 minutes with hot applications to get her eyes open; that she suffered severely from the burns and swelling on her face and scalp for about four days and some of the pain persisted for ten days.

Mr. McKisson corroborated his wife's testimony as to her personal injuries, burns, swellings, etc.

Mr. Pritsker, the chemical engineer, testified that he was the director of the Dallas Laboratories at Dallas, Texas; that at the request of the plaintiff he examined the remaining portions of the Zotos preparation used by Mrs. McKisson which consisted of a lanolized waving lotion and a neutralizer; that he found the waving lotion contained 2.4% Thioglycolic acid, 67% Water and 30.6% Emulsifying agents, oily clouding agents, lanolin, etc.; that the pH (a chemical term indicating the acidity or basicity of a solution) was found to be 8.9; that the neutralizer was 2.3% Hydrogen peroxide, 67% Water and 30.7% Oily agents and emulsifiers; that...