Smith v. Burdine's, Inc.

Citation198 So. 223,144 Fla. 500
CourtUnited States State Supreme Court of Florida
Decision Date27 September 1940
PartiesSMITH et al. v. BURDINE'S, Inc.

Rehearing Denied Nov. 12, 1940.

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Action for breach of warranty by Christine Smith, joined by V Morris Smith, as her husband and next friend, against Burdine's, Incorporated, a corporation. To review a judgment for the defendant, plaintiffs bring error.

Reversed and new trial granted.

BROWN J., and TERRELL, C.J., dissenting.

COUNSEL

Carson, Petteway & Stembler, of Miami, for plaintiffs in error.

McKay Dixon & DeJarnette and Evans, Mershon & Sawyer, all of Miami, for defendant in error.

OPINION

CHAPMAN Justice.

This case is before the Court on writ of error to a final judgment for the defendant below entered by the Circuit Court of Dade County, Florida. The declaration sought recovery on two counts: (a) Upon a breach of an implied warranty of fitness for the use and purposes intended; (b) upon the breach of the express warranty of wholesomeness. On demurrer to each count of the declaration it was contended that the plaintiff, as a matter of law, had no cause of action against the retailer of the article sold to the plaintiff, but the cause of action, if any, was against the manufacturer or wholesaler thereof. The demurrer was overruled and the material portions of the order are, viz.:

'The declaration in this case contains two counts. The first count is based on the theory of 'Implied Warranty'. The second count is substantially the same as the first count, except that it is predicated on the theory of 'Express Warranty'.
'It is alleged in the declaration that the plaintiff on the recommendation of a salesman in the employ of the defendant purchased a lip stick. The salesman at the time and place of sale stated to the defendant that the lip stick so recommended and purchased by plaintiff was 'Grade A' under the pure food and drug law. That in the use of said lip stick by the plaintiff her health was seriously impaired by reason of deleterious or harmful substance therein contained.
'From an exhaustive examination of the conflicting authorities involving similar but not the precise question under consideration, this Court is inclined to the view that the selection and statement made by the defendant's duly authorized salesman at the time and place of the sale of the lip stick to the plaintiff amounted in law to an implied warranty.'

The case went to trial on pleas: (a) Not guilty; (b) that it did not promise as alleged; (c) defendant denies that the lipstick was not reasonably fit and proper to use for cosmetic purposes; (d) defendant denies it knew that a certain lipstick would find its way into the mouth and stomach of one using the lipstick; (e) defendant denied the lipstick was then and there unfit for use as a cosmetic.

The plaintiff offered evidence in support of the material allegations of the declaration and rested her case. The lower court sustained a motion for a directed verdict made by the defendant below on the theory that no evidence had been offered upon which the jury would be warranted in returning a verdict in behalf of the plaintiff below. A motion for a new trial was made and overruled and judgment final entered for the defendant below and an appeal therefrom has been perfected to this court.

The facts established by plaintiff below are substantially, viz.: During the month of August, 1936, plaintiff bought of Burdine's department store in the City of Miami a Tiger Lilly lipstick manufactured by Charles of the Ritz which was delivered to the plaintiff in a metal container, the same as purchased by Burdine's, Inc., from Charles of the Ritz. Plaintiff paid $1 for the lipstick at the cosmetic counter of Burdine's, Inc. She stated that prior to the purchase she asked for a good brand of lipstick and the saleslady recommended it. 'She told me that the lipstick was guaranteed under the pure food law Grade A.' 'The idea was always there that I was buying a guaranteed lipstick'. 'She told me it was a guaranteed lipstick under the pure food law.' 'They recommended the lipstick and for this reason I bought it.'

The lipstick, she stated, was without stickability and after she would eat her lips would be colorless and the color therefrom stained objects touching her lips and some would be found on her teeth and in her mouth and could not be removed; that after using the same for a short time she had digestive trouble, which gradually grew worse; her face was swollen; eyes turned red, and was sick for more than a year and under the treatment of a physician.

Dr. Dyrenforth, a pathologist, testified that he made an analysis of the lipstick in July, 1938, and that the same contained a harmful matter chemically known as metaxylene-azo-betanapthol, which is a coal tar derivative. He further testified:

'Q. In what way is it harmful, doctor? A. It is harmful as an irritant, in that it is prepared from other things which are definitely harmful. Betanapthol is a chemical which is used as a disinfectant, or an antiseptic, rather, and it is used medically in small amounts as a vermifuge for driving worms out of system, on themucuous membranes. Betanapthol alone is an irritant and in combination with those other substances to make Sudan No. 2, it is without any suspension in the form of a lipstick with a waxy substance, and in some individuals there may be a hypersensitivity to coal tar dyes such as this, which might incite an inflammatory reaction. * * *

'Mr. Carson: All right, go ahead, doctor

'The witness: This coal tar product, Sudan No. 2, is a definite irritant, although it might produce such irritation in some persons and not in others. It is also related to the coal tar products which are known to produce cancer. Specifically speaking, and without trying to go into the chemistry of it too much in detail, these coal tar products which contain more than one benzine nucleuses as this does, are definitely known to cause irritation to the mucous membrane and to the skin when applied over extended periods. As to the substance itself, it is also related to the other members of this group. There are five altogether. Some of them are more harmful, than others, and I judge from the chemical constitution of Sudan No. 2 that it ranks along midway in the most harmful and least harmful of the group. There are five members of this group that are commonly used in producing dye stuffs, and they are known as Sudan One, Two, Three and Four, and Sudan G. This particular substance which is Sudan Two does contain more than one benzine ring in its structure, and on the basis of this they have been judged harmful products, although they might not exert their effects in the same way on different individuals.'

Dr. Graves testified that he treated the plaintiff for a period of some fifteen or sixteen months, and the material portion of his testimony is, viz.:

'Q. Did you make any diagnosis from your observation of her, as to the cause of her condition? A. My diagnosis was that there was some chemical irritation, very probably from the cosmetics she was using, and in the course of the treatment of her it was advised that they be discontinued and supportive treatment given her. Mrs. Smith at that time had a systemic absorption in that she had a definite nephritis condition in the kidneys, and there had been albumen, and going over my records, as Mrs. Smith had been a patient of mine for several years, and she had never before had any diagnosis of kidney inflammation, and the diagnosis at the time was that there was some chemical irritation causing her physical condition. Very probably the condition was due to the cosmetics she was using, which I advised her to discontinue, and the diagnosis was more or less borne out in the rapid clearing up of the cellulitis, after the discontinuance of the use of the lipstick she was using and the other cosmetics she was using. That was the treatment she was put under, together with supportive treatment for her general condition.

'Q. What was her condition after this systemic poisoning had developed with regard to her being able to do her work? A. Mrs. Smith was in a highly nervous state and emotionally upset very easily, more than you would expect of a woman of her age and her manner of living, and over a period of months she was kept under observation and the nephritis or kidney condition rapidly cleared up, following the discontinuance of the lipstick, with elimination therapy, that is the cleaning out of the system of the alkalized condition, and supportive treatment.

'Q. It is your definite opinion her condition came from poison in the system? A. That was my line of treatment, and from which she recovered.

'Q. With the application of that treatment she improved? A. She did.

'Q. She improved immediately after she discontinued the use of this lipstick? A. She did.'

Pearl Roberts testified as to the health of the plaintiff prior to the use of the lipstick and the poor condition after the use thereof and is in line with the testimony of Dr. Graves.

The questions to be decided on this appeal, as contended for by counsel for plaintiff in error, are, viz.:

'Is a retailer of package goods liable to a purchaser thereof for damages resulting from injuries sustained from the use thereof by reason of deleterious matter therein on an implied warranty of fitness for purposes intended when he had no control over the manufacture of the article in question, sold it in its original container and purchased the same from a reputable manufacturer?

'Is a retailer of package goods liable to a purchaser thereof for damages resulting from injuries sustained from the use thereof by reason of deleterious matter...

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