Rogers v. Toni Home Permanent Co.

Citation147 N.E.2d 612,75 A.L.R.2d 103,167 Ohio St. 244
Decision Date29 January 1958
Docket NumberNo. 35146,35146
Parties, 75 A.L.R.2d 103, 4 O.O.2d 291 ROGERS, Appellee, v. TONI HOME PERMANENT CO., Appellant.
CourtOhio Supreme Court

Syllabus by the Court.

1. Originally, an action grounded on breach of warranty sounded in tort rather than contract.

2. An express warranty is an affirmation of fact by the seller as to a product or commodity to induce the purchase thereof, on which affirmation the buyer relies in making the purchase.

3. Under modern merchandising practices, where the manufacturer of a product in his advertising makes representations as to the quality and merit of his product aimed directly at the ultimate consummer and urges the latter to purchase the product from a retailer, and such ultimate consumer does so in reliance on and pursuant to the inducements of the manufacturer and suffers harm in the use of such product by reason of deleterious ingredients therein, such ultimate consumer may maintain an action for damages immediately against the manufacturer on the basis of express warranty, notwithstanding that there is no direct contractual relationship between them.

Plaintiff's second amended petition filed in the Court of Common Pleas of Cuyahoga County against the Toni Home Permanent Company, a foreign corporation, alleges in substance that plaintiff, pursuant to the representations and claims of the defendant made directly to her in its advertisements and in strict reliance thereon, purchased locally a Toni Home Permanent set labeled 'Very Gentle'; that, following explicitly the directions furnished her by the defendant, plaintiff had her mother give a permanent wave to her (plaintiff's) hair, using such product; that the ingredients therein so applied to plaintiff's hair were deleterious and harmful; that as a result her hair was caused to 'assume a cottonlike texture and become gummy; that her hair refused to dry; and that when the curlers furnished by defendant were attempted to be removed, her hair fell off to within one-half inch of her scalp.'

The petition consists of three causes of action, the first is based on negligence, the second on express warranty, and the third on implied warranty. Damages are asked in the sum of $30,000.

Defendant demurred to the second and third causes of action, and such demurrer was sustained. Plaintiff not desiring to plead further, judgment was entered against her, and she thereupon perfected her appeal on questions of law to the Court of Appeals.

That court affirmed the judgment below as to the sustaining of the demurrer in respect to the third cause of action (implied warranty) but reversed as to the sustaining of the demurrer in respect to the second cause of action (express warranty) and remanded to cause for further proceedings. See 139 N.E.2d 871.

Pursuant to defendant's motion, the judges of the Court of Appeals found the judgment the court had rendered to be in conflict with the judgment pronounced on the same question by the Court of Appeals for Hamilton County in the case of Jordon v. Brouwer, 86 Ohio App. 505, 93 N.E.2d 49, and certified the record of the case to this court for review and decision.

Harold E. Frye, Cleveland, for appellee.

Arter, Hadden, Wykoff & Van Duzer, Thomas V. Koykka and James H. Wilkinson, Cleveland, for appellant.

ZIMMERMAN, Judge.

The precise question we are now required to determine is whether, in an action for damages brought by the ultimate purchaser of a product directly against its manufacturer and based on the claim that the ingredients of the product were advertised and represented by the manufacturer to such purchaser to be safe and harmless when devoted to their intended use, whereas in fact they were harmful and deleterious, such ultimate purchaser is restricted to prosecuting his action on the basis of negligence alone or whether he may proceed on the theory of an express warranty.

As indicated, the Court of Common Pleas decided that plaintiff must proceed solely on the basis of negligence, whereas the Court of Appeals held that she might rely and proceed on the theory of express warranty.

In asking for a reversal of the judgment of the Court of Appeals, defendant places great reliance on the comparatively recent case of Wood v. General Electric Co., 159 Ohio St. 273, 112 N.E.2d, 8, 9, wherein the second paragraph of the syllabus is as follows:

'Although a subpurchaser of an inherently dangerous article may recover from its manufacturer for negligence, in the making and furnishing of the article, causing harm to the subpurchaser or his property from a latent defect therein, no action may be maintained against a manufacturer for injury, based upon implied warranty of fitness of the article so furnished.'

Such rule is based on the proposition that to support an action grounded on an implied warranty there must be contractual privity between the buyer who sues and the seller against whom the suit is brought.

It must be confessed that the prevailing view is that privity of contract is essential in an action based on a breach of an express or implied warranty, and that there is no privity between the manufacturer of an article and the ultimate purchaser thereof from a retailer, where the ultimate purchaser was in no way a party to the original sale. See 1 Williston on Sales (Rev.Ed.), 645, 648, Section 244; 46 American Jurisprudence, 489, Section 307; and 77 C.J.S. Sales § 305, p. 1125.

However, there is a growing number of cases which, as an exception to the general rule, hold that as to foodstuffs and medicines, particularly when sold in cans, capped bottles or sealed containers, a warranty of fitness for human consumption carries over from the manufacturer or producer to the ultimate consumer, regardless of privity of contract. See 1 Williston on Sales (Rev.Ed.), 647, 648, Section 244; 22 American Jurisprudence, 892, Section 105; and 77 C.J.S. Sales § 305, pp. 1127 to 1129. Compare Canton Provision Co. v. Gauder, 130 Ohio St. 43, 196 N.E. 634; and Kniess v. Armour & Co., 134 Ohio St. 432, 17 N.E.2d 734, 119 A.L.R. 1348.

It would seem but logical to extend the rule last cited to cosmetics and other preparations, which are sold in sealed packages and are designed for application to the bodies of humans or animals. Compare Sicard v. Kremer, 133 Ohio St. 291, 13 N.E.2d 250.

A prevalent but mistaken notion is extant that the term, 'warranty,' has always carried the implication of a contractual relationship. From a historical standpoint such notion is without foundation. Some of the cases, and well known and respected writers on legal subjects, point out that originally the consumer or user of an article, which was represented to be in good condition and fit for use and proved not to be, was accorded redress by an expansion of the action of trespass on the case to include deceit--a fraudulent misrepresentation--which sounds distinctly in tort. Undoubtedly, the recognition of such a right of action rested on the public policy of protecting an innocent buyer from harm rather than to insure any contractual rights. See History of Assumpsit by James Barr Ames, 2 Harvard Law Review, 1, 8.

And the rule of general acceptance is that 'deceit' gives rise to a cause of action in tort and does not require that the acts complained of grow out of any contractual relation. Ashe v. Gray, 88 N.C. 190, 192.

Other writers have no hesitancy in asserting that in the beginning an action on 'breach of warranty' was a tort action to give relief for the breach of a duty assumed by the seller, and that the introduction at a much later date of the method of declaring on a warranty 'indebitatus assumpsit' (an implied promise or obligation on the part of one to pay to another what in fairness and good conscience the former should pay) constituted the recognition of an additional or alternative remedy of a contractual aspect to secure relief where a breach of warranty is involved. See 1 Williston on Sales (Rev.Ed.), 501, 506, Sections 195, 197; Prosser on Torts (2 Ed.), 673, Section 83; and 77 C.J.S. Sales § 354, p. 1262.

For the status of the law on 'warranty' as it now exists, attention is directed to the case of Rachlin v. Libby-Owens-Ford Glass Co., 2 Cir., 96 F.2d 597, at page 600, where the following language appears:

'That the orthodox rule requires privity of contract between the parties in an action for breach of warranty is too well known to require the citation of authorities. Several courts, however, have recognized an exception to the general doctrine in the case of medicines and foodstuffs, and have held a manufacturer to warrant to the ultimate consumer that the article is fir for human consumption. See Chanin v. Chevrolet Motor Co., 7 Cir., 89 F.2d 889, 890, 111 A.L.R. 1235, footnote 1. The plaintiff would have us extend the exception to include other kinds of chattels when a manufacturer by an extensive advertising campaign directs his representations to the ultimate consumer and invites him to purchase the manufacturer's product from a retail dealer. Such an extension was apparently recognized in Baxter v. Ford Motor Co., 168 Wash. 456, 12 P.2d 409, 15 P.2d 1118, 88 A.L.R., 521, and has been favorably commented upon in some of the law magazines. See 46 Harv.L.Rev., 161; 18 Cornell L.Q., 445.'

As applicable to the allegations of the petition in the present action, an express warranty may be defined as an affirmation of fact by the seller of a product or commodity to induce the purchase thereof and on which affirmation the buyer relies in making the purchase.

Occasions may arise when it is fitting and wholesome to discard legal concepts of the past to meet new conditions and practices of our changing and progressing civilization. Today, many manufacturers of merchandise, including the defendant herein, make extensive use of newspapers, periodicals, signboards, radio and television to advertise their products. The worth, quality and benefits of the...

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