Ross v. Porteous, Mitchell & Braun Co.

• Decision Date: 17 January 1939
• Citation: 3 A.2d 650
• Parties: ROSS v. PORTEOUS, MITCHELL & BRAUN CO.
• Court: Maine Supreme Court

3 A.2d 650

ROSS

v. PORTEOUS, MITCHELL & BRAUN CO.

Supreme Judicial Court of Maine.

Jan. 17, 1939.

Report from Superior Court, Cumberland County.

Action on the case for breach of warranty by Mary E. Ross against Porteous, Mitchell & Braun Company. On report.

Case remanded with directions.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

William B. Mahoney, of Portland, for plaintiff.

Robinson & Richardson, of Portland, for defendant.

STURGIS, Justice.

In this action on the case for breach of warranty certified to the Law Court on Report, the transcript of the evidence shows that on or about September 24, 1937, the plaintiff visited the defendant's department store and purchased from a clerk in the feminine hygiene department one or more pairs of dress shields used by women to protect their garments from armpit perspiration. She asked for white "Kleinert's Onandoff No. Four" shields and was told that they were not carrying that any longer in stock. The clerk then showed her a shield saying that "this new kind, recently marketed, was taking the place of that one (the shield asked for) * * * They had been chemically treated so that they could be washed and ironed." In redirect examination, restating her conversation with the clerk, the plaintiff said: "I asked for the same type of shields I ordinarily wore, and was told that they were no longer stocking them, but they had one very similar to it that they considered better and naturally I took their word for it and bought it." In the following recross examination, she admitted that the clerk's explanation of why the new shields were better than the old style was "because they were boilable."

The shields purchased were marked and known to the trade as "Kleinert's Onandoff No. Four, Blue Label" shields and except that they were flesh colored and boilable were in all respects similar to the white shields which she had worn. The flesh color came from the use of rhodamine dye, an inert and harmless chemical. The new boilable quality was produced by introducing pure cotton flock into the rubber lining. The Blue Label shields were made by the largest manufacturer of dress shields in the country, had been on the market for at least four years, and the annual sales of the product ran into the millions.

Immediately after buying the shields, the plaintiff put them on and wore them for about two hours when her armpits became irritated and a removal of her clothing disclosed a highly inflamed condition of her underarm and body in that region corresponding in size and contour to the dress shield she had worn. The inflammation developed into dermatitis which responded slowly to treatment and incapacitated the plaintiff for several weeks but finally subsided. The plaintiff again tried to use the Blue Label shields. In the latter part of October or first of November following her original purchase, she bought another pair at the defendant's store, attempted to wear them, and the results were the same. The record does not show that at the time of this second purchase the defendant's clerk made any statements whatsoever concerning the shields.

The plaintiff's family physician concedes that some people are susceptible to certain substances which the average person is not affected by, which is termed an allergy or idiosyncracy of the individual. And he says that a harmless substance applied to the skin of a person who has an allergy or idiosyncracy for it may produce inflammation and some individuals cannot wear rubber next to their skin without having dermatitis due to the lack of evaporation of perspiration. Upon the hypothesis that the Blue Label shields involved in this action were free from deleterious substances, it was the physician's opinion that the plaintiff's dermatitis might be caused either by her allergy or the prevention of evaporation resulting from the use of the shields. Although he had not discovered in many years of professional attendance upon the plaintiff that she was allergic, he admitted that her actual condition in that regard could not be determined without an intradermal test which had not been made. The Doctor also stated that, in seeking to determine the cause of the plaintiff's affliction, the extent of perspiration, lack of evaporation, heat and weather conditions, as also the tightness of the shield under the arm, were all factors to be considered. Although he attributes the plaintiff's injuries to the use of the Blue Label shields, he is unable to point out how or why that result came about.

A representative of the concern which manufactured the shields which the plaintiff purchased, and is its head chemist, explained at length the mechanical process used in making Blue Label dress shields, described the nature and amount of their chemical contents, their freedom from harmful or deleterious substances, and the rigid and repeated inspections to which they were subjected, and stated that all shields put upon the market were similar in every respect and no injury had ever been known to result from their use by the many women purchasing them throughout the country. No chemical analysis or other proof that the shields used by the plaintiff contained poisonous or harmful substances was introduced to contradict this evidence.

Such is the case reported. Obviously there was no express warranty made by the clerk who sold the shields. All that the plaintiff claims, when her...