Rogers v. Toni Home Permanent Co.

• Citation: 139 N.E.2d 871,105 Ohio App. 53
• Parties: , 77 Ohio Law Abs. 232, 5 O.O.2d 328 Mabel Alberta ROGERS, Plaintiff-Appellant, v. TONI HOME PERMANENT COMPANY, Defendant-Appellee.
• Decision Date: 16 January 1957
• Court: Ohio Court of Appeals

Page 53

105 Ohio App. 53

139 N.E.2d 871, 77 Ohio Law Abs. 232, 5 O.O.2d 328

Mabel Alberta ROGERS, Plaintiff-Appellant, v. TONI HOME PERMANENT COMPANY, Defendant-Appellee.

Court of Appeals of Ohio, Cuyahoga County.

Jan. 16, 1957.

On Motion to Certify Feb. 4, 1957.

Harold E. Frye, Cleveland, for plaintiff-appellant.

Arter, Hadden, Wykoff & Van Duzer, Cleveland, for defendant-appellee.

SKEEL, Judge

This appeal comes to this Court on questions of law from a judgment entered for the defendant by sustaining a demurrer to the second and third causes of action of the plaintiff's second amended petition seeking damages for breach of an alleged express warranty as set out in the second cause of action and of an implied warranty as claimed in the third cause of action. After the demurrer was sustained, the plaintiff not desiring to plead further, the court entered judgment for the defendant on the second and third causes of action. The petition of the plaintiff is based on a claim for damages alleged to have been sustained because of injury to and loss of her hair in the use of a hair-waving product manufactured by the defendant.

The first cause of action of the second amended petition founded on negligence is still pending and is not involved in this appeal. The second cause of action alleges that the Toni Home Permanent Company is a foreign corporation, not licensed to do business in Ohio, is engaged in the manufacture and sale of hair preparations and products throughout the several states, including the State of Ohio; that the plaintiff was induced to purchase a product of defendant's manufacture known as 'Toni Home Permanent' as a result of defendant's representations made in advertisements seeking to induce ultimate consumers to purchase and use its products, and particularly, 'Toni Home Permanent.' It is alleged that said product is a drug as defined by Section 3715.01, R.C., intended for use in the self-administration of a permanent hair wave. The plaintiff alleges that after first testing her hair, as directed by the defendant in printed instructions furnished by the defendant for the safe use of its product, she proceeded, with the help of her mother and by following explicitly such instructions, to administer to herself a 'permanent wave'. In doing so, she used exclusively the materials furnished by the defendant, which materials were labeled 'Very Gentle', and by reason of the deleterious and harmful character of such materials furnished by the defendant, known as 'Toni Home Permanent', when applied to the hair of the plaintiff, caused her hair to 'assume a cotton-like texture and became gummy, that her hair refused to dry and that when the curlers furnished by the defendant were attempted to be removed, her hair fell off to within one half inch of her scalp'.

It is alleged that the defendant induced the plaintiff, by express representation in advertisements directed to the attention of the public and particularly to ultimate consumers, to purchase its product from distributors or retailers, said representations being to the effect that she could use the 'Toni Home Permanent' for the purpose intended and in the manner as directed by the defendant in complete safety to her person. There are other allegations of the second cause of action supplementing and in support of the foregoing allegations of fact. The plaintiff then prays damages for the injuries sustained as a result of applying the 'Toni Home Permanent' as directed by the defendant.

The third cause of action adopts all of the facts set forth in the first and second causes of action, and alleges a breach of an implied warranty of its product imposed by law as to its fitness for use and merchantability in the following respects:

'1. That the Plaintiff was a third-party beneficiary, as the intended consumer, of any contracts entered into by the Defendant for the sale of its merchandise to the Plaintiff.

'2. That there was an implied warranty which ran with the article from the Defendant to the consumer, the Plaintiff, that the article was fit for the use for which it was designed, compounded and intended.

'3. That the Defendant, in placing its product upon the market, intended that it eventually be sold to Plaintiff, or other like consumers, and impliedly warranted the product to Plaintiff, or other like consumers.

'4. That Defendant was conscious of the fact that Plaintiff, or others similarly induced by Defendant's advertising, would be the ultimate purchasers and knowing and intending that Plaintiff and other purchasers be those the Defendant looked to for income, the Defendant impliedly contracted with them, and thus, impliedly warranted its product to them.

'5. That an implied warranty by the Defendant to the Plaintiff arose as a matter of public policy, which public policy is evidenced by the Pure Food and Drug Act of the State of Ohio, which Act places manufacturers and sellers of foods and drugs in a category separate and distinct from that of the manufacturers and sellers of articles other than foods and drugs.'

The plaintiff then alleges facts constituting a breach of such implied warranty and claims damages as a specific result of such breach.

From the jdugment entered for the defendant on her second and third causes of action, the plaintiff's appeal claims the following errors:

'1. The trial court erred as a matter of law in sustaining Defendant-Appellee's demurrer to Plaintiff-Appellant's second cause of action.

'2. The trial court erred as a matter of law in sustaining Defendant-Appellee's demurrer to Plaintiff-Appellant's third cause of action.'

It is evident that the sole basis upon which the court sustained the defendant's demurrer to the second and third causes of action of the second amended petition was on the ground that there was no privity between the plaintiff as ultimate consumer and the defendant as manufacturer of the 'Toni Home Permancent' used by the plaintiff to her alleged injury, the plaintiff having admittedly purchased defendant's product from an independent retailer.

The facts pleaded in plaintiff's second amended petition as above set forth for the purposes of the defendant's demurrer must be considered as true.

It is a matter of common knowledge that the method of merchandising products manufactured for use and consumption by the individual has completely changed since the formative period of the law of 'Sales'. From the period when the 'common' artisan sold the products of his own manufacture directly to the consumer to the time of expanding markets through the direct efforts of middlemen and retailers, who created the markets and served the consumer's needs, until today when competing manufacturers by direct advertising create, by their own acts, the consumer market for their products and the middleman or retailer has become a delivery station to make such goods available to the demands of the consumer. In the transition, even the packaging is now done by the manufacturer so that the product is usually delivered to the consumer in sealed cans, boxes or wrapping as prepared by the manufacturer. The Super Market examplifies the process where the customer picks what he wants from the shelves of the Super Market without even the presence of a sales person, having been induced in his selection by the manufacturer's advertisement, and the first time he has any contact with the retailer is in paying for his selections at the cashier's desk.

The facts in this case as pleaded fit completely into the foregoing pattern. The plaintiff demanded of a retailer a 'Toni Home Permanent', which was received in a sealed bottle as packaged by the defendant, with which was also received the defendant's printed directions for the 'safe' use of its product. The purchase was as alleged by the petition, induced by the defendant's representations.

By the early law in transactions involving the sale of personal property, the obligation imposed upon the seller was only to see to it that the goods agreed upon were made available to the buyer. So far as their condition was concerned (except where actual fraud was practiced), the law placed full responsibility on the buyer to determine that question for himself, unless he requested a representation as to their quality, which, if given, was considered a warranty and as such was collateral to and did not become part of the sales agreement. Caveat Emptor (Let the Buyer Beware) was the basic theory of the law, and, where a warranty was demanded, if the transaction was a sale of identified property, the property in the goods passed irrevocably to the buyer even though the warranty was untrue and the only action afforded the buyer was an action in tort for damages for breach of the collateral promise or representation. If the sale was of unspecified goods, the warranty (collateral in nature or legal effect) was treated as a condition which did not survive the acceptance of the goods. Paragraphs 195 and 196, Volume 1, Williston on Sales, Revised Edition.

The action for breach of warranty was in its origin a pure action in tort. The gradual change of the character of the action to one in contract has come about because promises inducing the sales, such as descriptive representations, were included in the terms of the agreement. The form in which the inducement was made did not change the legal meaning of 'warranty' nor the character of the obligation thus created or the manner of form of the action in which a breach of warranty could be pursued. A warranty is an obligation imposed by law, either because of a representation which induces the sale or a promise within the terms of the agreement of sale, and a breach of this obligation imposed by law may be pursued either in an action in tort or in contract.

Williston, in paragraph 197, beginning on page 506 of Volume 1 in the Revised Edition on the Law of Sales, after stating that there can be no doubt but that today the...