Patterson v. George H. Weyer, Inc.

• Decision Date: 07 April 1962
• Docket Number: No. 42601,42601
• Citation: 370 P.2d 116,189 Kan. 501
• Parties: Helen PATTERSON, Appellee, v. GEORGE H. WEYER, INC., and Rayette, Incorporated, Appellants.
• Court: Kansas Supreme Court

Page 116

370 P.2d 116

189 Kan. 501

Helen PATTERSON, Appellee, v. GEORGE H. WEYER, INC., and Rayette, Incorporated, Appellants.

No. 42601.

Supreme Court of Kansas.

April 7, 1962.

Syllabus by the Court.

1. In an action to recover damages for personal injuries sustained as a consequence of breach of an implied warranty the record is examined and it is held that the evidence: (1) Was sufficient to support the findings and general verdict of the jury; (2) to support the judgment of the trial court; and (3) that there was no error in refusing the instructions requested or in those given by the trial court.

2. A manufacturer, distributor or retailer who sells hair preparations does so under the implied warranty that such products are suited and fit for the purpose for which they are sold.

Donald L. Shughart, Kansas City, Mo., argued the cause, and Frank L. Bates, Kansas City, was with him on the briefs for appellants.

Harold K. Wells, Kansas City, argued the cause, and Albert M. Ross, James M. Barnett and Eldon L. Hagan, Kansas City, were with him on the briefs for appellee.

WERTZ, Justice.

This was an action brought by Helen Patterson, plaintiff (appellee), against George H. Weyer, Inc., Rayette, Incorporated and Eleanor Jefferies, doing business as Eleanor's Beauty Shop, defendants, to recover damages for personal injuries alleged to have been sustained as a consequence of breach of an implied warranty as a result of a permanent wave sold and given to plaintiff by Eleanor Jefferies while using a Rayette Goddess cold wave permanent, which was manufactured and distributed by Rayette, Incorporated and sold and distributed locally by George H. Weyer, Inc. to Eleanor Jefferies to be sold, used and applied by her on customers visiting her beauty shop, particularly the plaintiff.

The petition alleged in pertinent part that when defendants sold, distributed and applied to plaintiff's hair and scalp the Rayette Goddess cold wave permanent they impliedly warranted and represented it to be wholesome and fit for human hair, head and scalp; that plaintiff relied upon the warranty, accepted and was given the mentioned cold wave permanent; that it was not wholesome, fit or suitable for her hair or scalp; and that it was poisonous and highly injurious to human hair and scalp, and defendants thereby breached their implied warranty.

Defendants George H. Weyer, Inc. and Rayette, Incorporated answered admitting their corporate existence and denying generally plaintiff's other allegations. As an affirmative defense defendants pleaded contributory negligence of the plaintiff in failing to warn them of an alleged existing allergy or physical condition at the time she requested the permanent wave. Plaintiff replied by way of a general denial.

At the close of plaintiff's evidence the case was dismissed as to defendant Eleanor Jefferies and her answer is not abstracted here.

On the basis of the issues thus joined the case was tried to a jury, which, in answer to special questions submitted to it by the court, found that the product in question (Rayette Goddess cold wave permanent) was produced and marketed by defendants (Rayette, Incorporated and George H. Weyer, Inc.) to be used only by licensed beauty operators according to instructions as to the types of said product to be used on four different classes of hair; that the beauty operator (Jefferies) followed instructions in using the product on plaintiff's hair; and that the waving solution in the product was injurious to plaintiff and plaintiff was not subject to any unusual allergy or physical condition causing her to have unusual symptoms when the product was used upon her head. The jury also returned a general verdict for plaintiff in the sum of $1500 for which judgment was entered.

Defendants (appellants) Rayette, Incorporated and George H. Weyer, Inc. appeal only from the order of the trial court overruling their motion for a new trial.

At the outset it may be stated that in this jurisdiction a manufacturer, distributor or retailer who sells hair preparations does so under the implied warranty that such product is suited and fit for the purpose for which it is sold. (Graham v. Bottenfield's, Inc., 176 Kan. 68, 269 P.2d 413; 1 Products Liability, Hursh, § 3:18, pp. 429-431.) Defendants contend plaintiff failed to prove the breach of implied warranty in not showing the permanent wave was deleterious, harmful and unwholesome.

The underlying issue presented on this appeal is whether the evidence is sufficient to sustain the findings of the jury that the application of the permanent wave product manufactured by one defendant and distributed and sold by the other was unwholesome or deleterious and proximately caused plaintiff personal injury. An examination of plaintiff's evidence most favorable to her discloses that Mr. Hoffman, chief research chemist for Rayette, Incorporated, testified that the mentioned permanent wave had been manufactured and on the market since the year 1953; that each container of the cold wave lotion and solution has marked on it the directions for use; that defendant Rayette writes on the outside of the container, 'For Professional Use Only. Read directions before using.'; that the product is sold only to licensed beauty operators; that the directions are very explicit in outlining the steps necessary to prepare the wave and to test it during the application and to see that the hair isn't overprocessed, that they also caution the operators of overabundance or sloppage of the lotion on the patron's scalp or skin; and the directions say, 'Important. Don't give a cold wave to any patron who says she has experienced allergic reaction from a cold wave preparation. If she had a history of...