Procter & Gamble Mfg. Co. v. Langley, 16971

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Citation422 S.W.2d 773
Decision Date10 November 1967
Docket NumberNo. 16971,16971
PartiesPROCTER & GAMBLE MANUFACTURING COMPANY et al., Appellants, v. Virginia LANGLEY et al., Appellees. . Dallas

James A. Williams, of Bailey, Williams, Weber & Allums, Dallas, for appellants.

Joann Peters, of Welz, Anderson, Rogers & Peters, Dallas, for appellees.

DIXON, Chief Justice.

This is a products liability case. Appellees Virginia Langley and husband, Willis Langley, sued appellants Procter & Gamble Manufacturing Company, Procter & Gamble Distributing Company and Tom Thumb Stores, Inc. for damages alleged to have resulted from the use by Mrs. Langley of home permanent hair wave products called 'Milk Wave Lilt.' 1 Appellees allege that the three appellants are respectively the manufacturer, the wholesale distributor and the retail seller of the products.

In their pleadings appellees allege specifically that appellants Procter & Gamble Manufacturing Company and Procter & Gamble Distributing Company impliedly warranted that Milk Wave Lilt was fit for home permanent hair waving, was wholesome and noninjurious and did not contain any harmful substance. No such allegations were directed specifically at appellant Tom Thumb Stores, Inc., but it was alleged generally that the product was not fit for use 'as warranted by defendants.'

A jury made findings that (1) Virginia Langley purchased from Tom Thumb Stores, Inc. a box of 'New Milk Wave Lilt Home Permanent' preparation, (2) which preparation she applied; (3) she lost hair from her head following such application; (4) the product was a proximate cause of such loss of hair; (5) the product was unmerchantable and unfit for the purpose for which it was intended; (6) Virginia Langley failed to make a 10 minute test curl to see if her hair could take a wave before applying the product; (7) but such failure was not negligence; (9) during the application of the product the strands of hair felt sticky and gummy; (10) after her hair felt sticky and gummy, she failed to use liquid neutralizer at once; (11) but such failure was not negligence; (13) she waved more hair after feeling strands of hair which were sticky and gummy; (14) but such act was not negligence.

Appellants filed motions for instructed verdict, for judgment Non obstante veredicto, and for the court to disregard certain issues. These motions were overruled. Judgment was rendered in favor of appellees for $5,549.25, the amount of damages found by the jury.

1. Mrs. Langley's Testimony.

Virginia Langley testified that she purchased the boxed package of home permanent wave products after watching a television commercial advertising them. In her home, after mixing the powder product with milk, she applied the preparation to her hair and almost immediately her hair started coming out. It did not come out from the roots, but broke off some distance from her scalp, with the result that her hair, which has been shoulder length and in good condition, was very short, brittle and otherwise in very poor condition, lacking its former luster, etc. Her hair continued to come out for some time and required a year to grow back. Meantime she purchased a wig for $89.00, as her hair was too unsightly to be seen by the public in performing her duties as a waitress.

Mrs. Langley testified that she had in previous years given herself four home permanent waves without ill effects and had given herself one home permanent without ill effects since her experience with appellants' products.

Mrs. Langley did not keep or save any of the hair waving products which she claims in this instance damaged her hair. She disposed of them by throwing them away without having an analysis of them made.

On the outside of the carton in which the products were packaged were the words 'FOR ANY TYPE OF HAIR.' However, in an accompanying pamphlet were the following explicit instructions and warnings:


'Remember--you shouldn't use any permanent, unless your hair is in good condition. So, a few reminders.

'3. If your hair is bleached, Tinted or color-treated In any way or if it is in delicate condition (dry, brittle, breaking off, etc.) Make test curls to see if your hair can take a wave. * * * If at any time, these strands feel sticky or gummy, Use the liquid neutralizer at once and do not wave any more of your hair. If no gumminess occurs, but If your test curls, when dry, are frizzy, discolored, break easily or show any other signs of hair damage, this also means that you should not wave the rest of your hair.


Leave hair in curlers 10 minutes.

Rinse wound curls with comfortably hot water.

'Wait 30 minutes.' (Emphasis ours.)

The pamphlet contained these additional warnings:

'1. Keep waving powder (and when mixed, waving lotion) and liquid neutralizer out of eyes, ears, nose and mouth and off your face and neck. (Keep out of reach of children also.) * * * If any waving powder, waving lotion or liquid neutralizer does get in your eyes, ears, nose or mouth or on your face or neck, rinse it away Immediately with clear water. If you spill any waving powder, waving lotion or liquid neutralizer on clothes or furniture, rinse this also with clear water.'

Mrs. Langley testified that she read the above instructions and warnings. The understood that the instruction and warning in regard to the strands of hair being sticky meant 'Just what it says.'

However, her own testimony shows beyond dispute that she failed to follow but violated the above instructions in the following particulars:

(1) Her hair had been tinted some time in the preceding month of August, so she did make a test curl; but she left the lotion on for only four, not for ten minutes, before checking to see if the test was all right.

(2) At the end of four minutes she found the test curl was sticky; nevertheless she did not follow the direction that 'If at any time these strands feel sticky or gummy use the liquid neutralizer at once and do not wave any more of your hair.' (Emphasis ours.) To the contrary, she did not use the 'neutralizer at once,' but proceeded immediately to apply the lotion to the rest of her hair.

(3) Then she left the lotion on her hair for twenty minutes--twice the time stated in the instructions.

2. Medical Evidence.

Dr. Robert N. Machen, a physician and surgeon and Mrs. Langley's family physician, testified that he had treated her and prescribed medicines for her on a number of occasions between March and October of 1963, including two surgical operations under general anesthetics . So far as he knew her hair had been in good condition prior to October 1963. Mrs. Langley went to see Dr. Machen in October about her hair after it began to break off. He did not undertake to treat her for this condition, but referred her to Dr. John L. Kestel, Jr., a dermatologist.

Dr. John L. Kestel, Jr., the dermatologist to whom Mrs. Langley was referred, testified by deposition. His written medical report was introduced in evidence. It is as follows:

'HISTORY On Oct. 12, 1963 she gave herself a milk wave Lilt Permanent. Since then she has experienced hair loss. There has been some itching present since but she does not recall marked redness, scaling, on the edges of the scalp or forehead. Last time tint on hair was August 1963. She had a D. and C. (general anaesthetic) in June 1963 and Hemorrhoid operation in August or Sept . 1963 (general Anaesthetic). She used plastic rollers when had permanent: not used nylon rollers at all. Patch tested ahead of time for 12 minutes with no reaction.

'DESCRIPTION No noted hair thinning. Scalp appears normal. The distal 2/3 of all the scalp hairs are light red-blonde color, dry, loss of luster, brittle and broken off. No club hairs seen.

'DIAGNOSIS Change in hair character from outside chemical or influence.'

Mrs. Langley's medical bills amounted to $5.00 paid to Dr. Machen and $15.00 to Dr. Kestel.

3. Mrs. Krumdieck's Testimony.

Mrs. Doris Krumdieck, a teacher of cosmetology at Flatt's Beauty College, was a witness in behalf of appellees. Mrs. Krumdieck was positive in her disapproval of any and all home permanent treatments . She had never given a home permanent treatment. She knew nothing about Milk Wave Lilt. She had never examined the product and did not know the chemical content of its ingredients. She testified that a solution containing thioglycolic acid, used by professional beauticians in giving permanent hair waves, could be harmful if used to excess. She did not know whether Milk Wave Lilt contained any such acid.

There is no testimony that Milk Wave Lilt contains thioglycolic acid. Appellants without avail objected to Mrs. Krumdieck's testimony. There is testimony that Milk Wave Lilt contains thioglycolate, an alkali, but no testimony that it contains thioglycolic acid.

4. Testimony of A. R. Thomas.

A. R. Thomas, a chemical engineer, is manager of the hair care and new products section of the Products Research Department of Procter & Gamble Company. He testified that the basic chemical systems of Milk Wave Lilt were under investigation for six or seven years and the product itself for two or three years before being put on the market. It was tested on the hair of 1,000 to 1,500 women. The powder used is a combination of potassium thiogly-colate and a material called THAM. It is an alkaline, not an acid solution. The neutralizer consists of a 1.3% Solution of hydrogen peroxide with a small amount of preservative. According to Thomas the products are harmless. He testified that Milk Wave Lilt has been marketed since 1962 with sales amounting to between four and five million units and only thirty or thirty-five complaints of hair breakage.

Mr. Thomas at one point in his testimony stated that the powder mixed with milk produced a sticky lotion. A few questions later in his testimony he stated that the mixture was not sticky.


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