Merrill v. Beaute Vues Corporation, 5249.

• Decision Date: 11 September 1956
• Docket Number: No. 5249.,5249.
• Citation: 235 F.2d 893
• Parties: Nina MERRILL, Appellant, v. BEAUTE VUES CORPORATION, a corporation; and Waval Thermal Company, a corporation, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

235 F.2d 893 (1956)

Nina MERRILL, Appellant, v. BEAUTE VUES CORPORATION, a corporation; and Waval Thermal Company, a corporation, Appellees.

No. 5249.

United States Court of Appeals Tenth Circuit.

July 3, 1956.

Rehearing Denied September 11, 1956.

Andy Wilcoxen and Edwin Langley, Muskogee, Okl. (Norman & Wheeler and Joe Cannon, Muskogee, Okl., on the brief), for appellant.

T. L. Gibson and Julian B. Fite, Muskogee, Okl. (John M. Gephart, Wagoner, Okl., on the brief), for appellees.

Before MURRAH and PICKETT, Circuit Judges, and HILL, District Judge.

PICKETT, Circuit Judge.

The plaintiff, Nina Merrill, purchased a package of Nutri-Tonic permanent, a hair waving product, manufactured by the defendant Waval Thermal Company, a corporation, and marketed by the defendant Beaute Vues Corporation, a corporation. The product is a solution containing ammonium thioglycolate, a substance which softens human hair so that it can be shaped, and is similar to the many brands presently on the market. It is used to curl and beautify women's hair and is commonly known as "home permanent". Defendants' product was applied to plaintiff's hair according to directions. Within a short time thereafter she became quite ill, her eyes and face were swollen, large hives appeared on her body, she felt nauseated, and her vision became blurred. Her vision remained impaired. This action was brought by plaintiff, alleging that her injuries were caused by the product which contained ammonium thioglycolate acid, a substance dangerous and injurious to the health of those who used it, which was known, or should have been known, to the defendants.

After denying defendants' motion for a directed verdict, the court submitted special interrogatories to the jury, as provided by Rule 49(a), Fed.Rules Civ. Proc. 28 U.S.C.A., which were answered in favor of the plaintiff.¹ Thereafter the court sustained defendants' motion for judgment notwithstanding the verdict on the ground that there was insufficient evidence to sustain the jury's answer to Interrogatories Nos. 2 and 3. The court made additional findings to the effect that even if plaintiff was injured by the use of defendants' product, she was not a member of a class expected to be affected by the use of the product and her injury constituted an isolated instance of injury to an unusually susceptible individual. The court also found that the evidence failed to show that the defendants' product is harmful to any class or group of individuals when used for the purposes intended. The court further found that the evidence failed to show that the defendants knew, or in the exercise of reasonable care should have known, that their product would be injurious or harmful to normal persons or to any class of persons, or to plaintiff. This appeal is from a judgment entered in favor of the defendants.

The plaintiff contends that the case was brought and tried upon the allegation that defendants' product contained an ingredient known as ammonium thioglycolate acid which was inherently dangerous and injurious to the health of anyone who used it; that this is not an allergy case or one involving unusual sensitivities and that the evidence is sufficient to sustain the jury's answer to Interrogatory No. 2.

The law is that one who sells and delivers to another an article or product containing poison or deleterious ingredients which are intrinsically dangerous to human life or health, is responsible to any person who, without fault, is injured thereby. American Cyanamid Co. v. Fields, 4 Cir., 204 F.2d 151; Hardy v. Proctor & Gamble Mfg. Co., 5 Cir., 209 F.2d 124; Bianchi v. Denholm & McKay Co., 302 Mass. 469, 19 N.E.2d 697, 121 A.L.R. 460; Zirpola v. Adam Hat Stores, Inc., 122 N.J.L. 21, 4 A.2d 73. We have examined the record and are of the view that the evidence is insufficient to permit recovery under this rule.

There was evidence of injury to plaintiff's optic nerve. The attending physician testified that in his opinion the use of defendants' product caused plaintiff's illness and permanent injury to the optic nerve, resulting in impaired vision. He did not testify that the product was inherently poisonous, dangerous, or likely to injure anyone who used it. Plaintiff sought to supply this evidence by introducing two medical articles on the subject, one written in 1946 by Dr. Lawrence H. Cotter, and published in the journal of the American Medical Association, and the other written by Drs. John T. Robson and Walter Cameron and published in Northwestern Medicine, a publication of limited circulation, in 1949. The article of Dr. Cotter was published shortly after the cold wave solutions were placed on the market for home consumption. He expressed the opinion that the product caused a toxic reaction which would increase as the use was extended, and applied by unskilled hands. He cited five cases of persons having reactions after being exposed to the product. None of these cases involved injury to the optic nerve and no reference was made to optic neuritis. He concluded that, as shown by the five cases, ammonium thioglycolate acid can cause severe allergic reactions in sensitive persons, also that "like other allergens, its main impact is on the skin and mucous membranes. The effect is cumulative, and sufferers have remissions after contact with the acid has been removed. The process had been applied to many thousands without ill effects, but it seems probable that repeated exposures may eventually prove disastrous to those who have been immune up to the present time. It is not possible to determine in advance, without patch tests, which individuals will suffer toxic reactions. In general, those with anemias and allergic disturbances were the most vulnerable. There is some evidence of group sensitivity having been developed in persons who had a violent response to the first application of thioglycolate acid by previous use of certain depilatories containing an HS radical." We think that a careful reading of this article discloses that its purpose was to call attention to the possible injurious effects of the cold wave product when use is increased by advertising, lower prices, and applied by unskilled operators. Although statements were made in the article to the general effects of the product upon users, it was essentially a projection into the future of what might happen, and dealt primarily with allergic reactions. Dr. Cotter does say that liver damage may be anticipated in any individual from repeated exposure.

The Robson and Cameron article was a report of two cases, a mother and daughter, in which each suffered optic neuritis after using a home permanent containing ammonium thioglycolate, resulting in permanent injury to the vision.² At the time the article was written, it was estimated that approximately 55,000,000 packaged permanent waves were sold annually. The defendants were familiar with Dr. Cotter's article, but did not learn of the one written by Drs. Robson and Cameron until after this action was brought.

The undisputed evidence discloses that the concern of Dr. Cotter, including damage to the liver, was not justified. Following the publication of his article, the industry conducted extensive research, using human subjects for experiment, and found that the use of the product resulted in no evidence of systemic poisoning and was safe for general use. The report of this investigation was published in the journal of the American Medical Association. The Food and Drug Administration of the United States, Department of Health, Education and Welfare, investigated these products and, based upon "rigorous laboratory evaluation of the hazards involved", concluded that the judicious use of ammonium thioglycolate as a hair waving preparation would prove a relative innocuous procedure and that allergic responses would occur only rarely. The Committee on Cosmetics of the American Medical Association published this report in the November 18, 1949 issue of the journal of the American Medical Association as the report of that Committee. In addition the defendants examined into the possibility of injurious effects of the product upon users, making many tests on individuals, including those who were working with the product. It was applied to thousands in demonstrations, with no reported ill effects.

At the time of trial, the defendants have sold over thirteen million five hundred thousand packages without any report of injurious effects except those having allergic reactions, and in some instances, injury to the hair. The industry at large, all of which use ammonium thioglycolate in their product, had sold over five hundred million packages. With one possible exception, the only evidence of injuries to the optic nerve are those mentioned by Drs. Robson and Cameron, and the plaintiff. The plaintiff assumes that ammonium thioglycolate is poisonous from the fact that it caused injury to her optic nerve, but this does not follow. Many serious injuries result from reactions due to physiological idiosyncrasies. There was no proof of any systemic poisoning to a user after the Cotter article.

Fully recognizing the rule that the verdict of the jury must stand unless the evidence is so conclusive that the minds of reasonable men could not differ in the conclusions to be drawn therefrom, we think that this undisputed evidence so completely dissipates the fears expressed in the Cotter article that to hold there was sufficient evidence to create an issue of fact on this question would be a failure to recognize realities. The law requires a person to reasonably guard against probabilities, not possibilities. Oklahoma Gas & Electric Co. v. Wilson, 172 Okl. 540, 45 P.2d 750. Whether Dr. Cotter would have the same opinions and fears now that he did almost ten years ago, we do not know for he was not called as a witness. If this product is inherently dangerous and injurious to the millions who now use it, surely some...