Rogiers v. Gilchrist Co.
| Citation | 45 N.E.2d 744,312 Mass. 544 |
| Parties | FLORENCE ROGIERS v. GILCHRIST COMPANY. |
| Decision Date | 28 December 1942 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 2, 1942.
Present: FIELD, C.
J., DONAHUE, QUA COX, & RONAN, JJ.
Sale, Warranty. Notice.
Evidence of the circumstances of the sale of a dress which, when worn by the purchaser, caused toxic dermatitis wherever it came in contact with her skin, warranted a finding of breach of an implied warranty under G.
L. (Ter. Ed.) c 106, Section 17 (1), of the fitness of the dress for the purpose of being worn.
Due notice under Section 38 of G. L. (Ter. Ed.) c. 106 of a breach of an implied warranty under Section 17 (1) in the sale on May 26 of a dress which when worn caused toxic dermatitis properly might be found on evidence that on September 5 the purchaser first was informed by her physician that the dress was the cause of the dermatitis, and that four or five days later she interviewed an agent of the seller, stating the facts and that she "would have to sue" as she "couldn't afford to pay doctors."
CONTRACT OR TORT. Writ in the Superior Court dated January 24, 1940. The case went to trial on a count for breach of warranty. The trial was before O'Connell, J., who ordered a verdict for the defendant. The plaintiff alleged exceptions. The parties stipulated that, if the judge was in error in ordering a verdict, judgment for the plaintiff in the sum of $500 should be entered; otherwise judgment should be entered for the defendant.
H. S. Roit, for the plaintiff. S. H. Rogers, for the defendant.
QUA, J. "Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies upon the seller's skill and judgment, . . . there is an implied warranty that the goods shall be reasonably fit for such purpose." G. L. (Ter. Ed.) c. 106, Section 17 (1). (Sales Act, Section 15.)
In this action for breach of an implied warranty of fitness in the sale of a dress by the defendant to the plaintiff at the defendant's store on May 26, 1939, there was evidence tending to show the following: The salesgirl at the store "offered to help" the plaintiff and "selected the dress." When the plaintiff wore the dress her skin "broke out in a rash" under her armpits. She had never before had any skin trouble. On May 31 she saw her physician. She continued to wear the dress from time to time and occasionally visited the physician until on September 5 he told her not to wear the dress. Before that she had no suspicion that the dress caused her injury. The physician testified that the plaintiff's condition was "a chemical dermatitis," and that in his opinion the dress caused it. A biological chemist called by the plaintiff testified that upon testing the dress he found that it had been improperly dyed in that the "dye intermediate," a toxic substance, had not been completely oxidized, and that such a dress would cause a toxic dermatitis wherever it came in contact with the skin. No further statement of the evidence is required to demonstrate that a jury could have found the existence and the breach of an implied warranty of the fitness of the dress for the purpose of being worn. Flynn v. Bedell Co. of Massachusetts, 242 Mass. 450 . Idzykowski v. Jordan Marsh Co. 279 Mass. 163 , 166, 167.
The defendant's argument before us has been chiefly directed to the point that there was no sufficient evidence that the buyer gave "notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer [knew], or ought to . . . [have known] of such breach." G. L. (Ter. Ed.) c. 106, Section 38. (Sales Act, Section 49.) On this point there was evidence tending to show the following: Four or five days after September 5, 1939, the day when the physician first informed her that the...
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