Russell v. Relax-A-Cizor Sales, Inc.

• Decision Date: 12 July 1962
• Docket Number: RELAX-A-CIZOR,6 Div. 773
• Parties: Julia Walker RUSSELL v.SALES, INC., et al.
• Court: Alabama Supreme Court

Page 279

147 So.2d 279

274 Ala. 244

Julia Walker RUSSELL v. RELAX-A-CIZOR SALES, INC., et al.

6 Div. 773.

Supreme Court of Alabama.

July 12, 1962.

Rehearing Denied Dec. 20, 1962.

Rives, Peterson, Pettus & Conway and J. Kirkman Jackson, Birmingham, for appellant.

Frank M. Young, S. R. Starnes and Spain, Gillon & Young, Birmingham, for appellees.

HARWOOD, Justice.

This is an appeal from a jury verdict and judgment in favor of the defendants, and from an order overruling appellant's motion for a new trial.

Appellant sued the manufacturer of an electric reducing machine, known as a Relax-A-Cizor, and the saleswoman who demonstrated it. The case was submitted to the jury on Court, A, which charged substantially that:

The defendants were engaged in the business of manufacturing, assembling or selling a device under the trade name of 'Relax-A-Cizor' which was sold and distributed by the defendants for use by the public as a reducing machine and muscle conditioner; that defendants sold the daughter of the plaintiff one of said devices to be used by her and members of her family; and that the device was not reasonably safe for use by the public but was imminently dangerous when used for the said purpose in that the device introduced into the human body dangerous amounts of electrical current when used in the prescribed manner; that such danger was known or by the exercise of reasonable diligence should have been known by the defendants but was not known to the plaintiff or her daughter and was not revealed to them by the defendants; that on November 10, 1957, plaintiff was using the device as directed by the defendants, when the device began suddenly to function in an imminently dangerous manner and proximately caused plaintiff to suffer severe and permanently crippling injury and damage; that the defendants negligently caused or allowed or allowed the plaintiff to use the device without having exercised reasonable diligence to notify the plaintiff that the device was imminently dangerous to human life and limb; and that plaintiff's injuries and damages were proximately caused by such negligence.

Each of appellant's two married daughters purchased a machine after demonstrations by the defendant, Mrs. McDowell. One of the daughters loaned her machine to appellant, together with some of the advertising material and a book of instructions. On Sunday morning, November 10, 1957, appellant connected the machine to her body with a pad on her stomach and smaller pads on either arm. She reclined on a chaise lounge and turned on the machine, which, by electrical impulses, contracted muscles of the body for three-quarter second intervals and ceased the electrical impulses and allowed the muscles to relax for three-quarter second intervals after which the cycle of impulse and relaxation would continue.

The machine was on a coffee table beside appellant and while she was so connected up with it, she increased the electrical current into her body by increasing the regulatory dial setting of the machine. Immediately after doing this, she suddenly felt her arms being thrown over her head during the impulse interval and she felt her arms drop back into her lap during the relaxation interval. This flailing of her arms caused severe pain in her shoulders and lasted from 5 to 10 minutes while she screamed for help. She was unable to turn off the machine and she could not pull the plug of the machine out of the wall socket.

Her husband, who was taking a bath and had the water running in the tub, finally heard her screams, ran to her rescue and pulled the plug from the wall. The culmination of appellant's injuries was the insertion of a metal joint into her shoulder after the removal of a fractured bone.

The machine was later demonstrated by Mrs. McDowell and it was tested by Southern Research Institute. It was also examined and tested by a physiologist on the staff of the Medical College of Alabama. The demonstration and the test by everyone, except Dr. Emerson, was uneventful but the physiologist testified that in his opinion, the machine was unsafe for use on the human body. It was shown that over a period of 9 years, more than 300,000 of the machines had been manufactured and distributed with no complaints about fractures or dislocations of bones, and this particular machine had worked properly on every occasion before the accident and had worked properly after the accident.

The defendant pleaded in short by consent, which included the general issue and contributory negligence.

Appellant concedes that the sufficiency of the evidence is not an issue on this appeal.

The four argued assignments of error are concerned with two charges and two instances where the appellees' witness, Druz, was permitted to testify as an expert.

Appellant contended at trial that the machine which she was using suddenly produced strong electrical impulses which caused her arms to flail violently and her injuries resulted therefrom. Appellees contended that appellant turned the machine's current regulator too high, or else fell from the lounge on which she was reclining, and that her injuries were due to an intervening cause. The appellees requested charge 66, which was given by the court reads:

'Gentlemen of the Jury, I charge you that where one cause merely created the condition, and after the condition had been created, an intervening agency produced the injury, the first cause is not the proximate cause.'

Appellant contends that this charge is not a correct statement of the law because it disregards those requirements of an intervening cause, namely (1) of independence, (2) of being an efficient cause within itself, (3) that the intervening agency not be reasonably anticipated or foreseen.

We agree that this charge does not fully state the law in relation to an intervening cause, but this identical charge has formerly been held good by this court. The charge is a literal copy of the second headnote in Garrett v. Louisville & Nashville R. Co., 196 Ala. 52, 71 So. 685, but it was argued in Clendenon v. Yarbrough, 233 Ala. 269, 171 So. 277, that it was not a correct statement of the law. This court, after a full discussion, said:

We do not think that the charge of the court as a whole tended to mislead the jury, nor was it an improper statement of the law. It is our judgment that they should have, and probably did, fairly understand the legal principles applicable as the court instructed them. We see no occasion therefore for reversing the judgment for the failure to grant a new trial on that account.'

We note that the trial court properly defined actionable negligence in this case in his oral charge by saying, 'In order for negligence to be actionable, the injury must follow the negligence in the natural and probable sequence, unbroken by any independent, intervening, efficient cause, so that but for the negligence complained of, the injury would not have occurred.'

We would not hold a court in error for refusing to give charge 66, but under the authority of Clendenon v. Yarbrough, supra, we will not reverse the judgment because the charge was given.

It is also argued that the court erred in giving appellees' requested written charge 52, which reads:

'I charge you that if you are reasonably satisfied from the evidence that the plaintiff did or omitted something on the occasion complained of which a reasonably prudent person similarly situated would not have done and that this proximately contributed to plaintiff's injury, then I charge you that you cannot find for the plaintiff in this case.'

Appellant argues that this charge is confusing and misleading and also incorrect. We have repeatedly held that if a charge is deemed misleading, an explanatory charge should be requested, and the giving of a misleading charge does not necessitate a reversal. Blakeney v. Alabama Power Co., 222 Ala. 394, 133 So. 16; Ray v. Richardson, 250 Ala. 705, 36 So.2d 89; First National Bank of Mobile v. Ambrose, 270 Ala. 371, 119 So.2d 18. See 18A Ala.Digest, Trial, k 256(2).

We have also held that giving of an erroneous charge does not necessarily mean a reversal of the trial court. In International Union, etc. v. Russell, 264 Ala. 456, 88 So.2d 175, 62 A.L.R.2d 669, we said:

'Appellants further argue that the charge was erroneously given because it fails to instruct that punitive damages could be awarded only if the jury determined that plaintiff suffered actual damages. This argument is without merit for the subject is fully covered in the oral charge given by the judge. Such being the case, if any error existed, it is not reversible error. Marbury Lumber Co. v. Lamont, 198 Ala. 566, 73 So. 923; Western Union Telegraph Co. v. Gorman, 237 Ala. 146, 185 So. 743; McGough Bakeries Corp. v. Reynolds, 250 Ala. 592, 35 So.2d 332. The oral charge also cured any possible defect in plaintiff's requested Charge No. 3, given by the court.'

The trial court gave a comprehensive oral charge on negligence and fully covered the subject both as to...