Spiegel v. Saks 34th St.

• Citation: 43 Misc.2d 1065,252 N.Y.S.2d 852
• Parties: Irene SPIEGEL and Nathan Spiegel, Respondents, v. SAKS 34TH STREET and National Toilet Co., Appellants.
• Decision Date: 20 May 1964
• Court: New York Supreme Court — Appellate Term

Page 852

252 N.Y.S.2d 852

43 Misc.2d 1065

Irene SPIEGEL and Nathan Spiegel, Respondents, v. SAKS 34TH STREET and National Toilet Co., Appellants.

Supreme Court, Appellate Term, Second Department.

May 20, 1964.

Glatzer, Glatzer & Evans, New York City, James M. Furey, Clune & Furey, Mineola, for appellants.

Joseph P. Axler, Jamaica, for respondents.

Before HART, BROWN and GROAT, JJ.

WALTER R. HART, Justice.

The complaint herein alleges three distinct causes of action or theories on behalf of plaintiff-wife--negligence, implied warranty and express warranty.

The evidence adduced at the trial establishes that in October 1960 a product known as Ultra Nadinola, manufactured by defendant National Toilet Co. and sold by defendant Saks 34th Street, came to the attention of plaintiff-wife by reason of an advertisement in The Daily News. The advertisement, showing Saks 34th Street as the vendor, reads as follows:

'IT'S NEW! IT WORKS! IT'S SAFE:

'ULTRA NADINOLA'

SURELY, SAFELY FADES AWAY UNSIGHTLY AGE SPOTS, BLOTCHES, FRECKLES

Not just another cosmetic * * * a completely new formula containing DIMATRON * * * actually searches out and acts directly on deep-seated discolorations of the skin.

3.50 3-month supply

'Spread Ultra Nadinola over your skin freely wherever age spots occur. It searches out and fades the unsightly blotches, freckles, muddy discolorations * * * having little effect on the clear area. Gently, thoroughly Ultra Nadinola brings about an over-all effect of even-toned, delightfully youthful coloring, giving the look of fresh, glowing skin vitality. Ultra Nadinola is clinically proven and absolutely safe! Over 200,000 hospital-controlled, doctor-supervised applications showed not one single case of skin irritation from its use.' (Emphasis supplied)

In November she telephoned Saks 34th Street for a package of the product was it was delivered in a paper carton which bears the legend as follows:

'Ultra Nadinola with Dimatron ^* is the new hospital test discovery, the new way to fade age spots on hands, facial blotches, freckles, to lighten dark skin. Over 200,000 applications under doctor's supervision proved new Ultra Nadinola non-irritating, completely safe. * * *

Imprinted on the label on the jar containing the product appears the expression:

'ULTRA Nadinola with Dimatron ^* is hospital tested and proven. It's new. It's safe. * * *

Plaintiff did not use the product until November 23rd, the day before Thanksgiving Day, on which day during the afternoon she opened the jar and applied some of the cream to certain brown spots which had been on the back of her hands. She then applied it again before retiring at about 12:00 or 1:00 o'clock that night. She woke up during the night due to a severe burning sensation in the areas where she had applied the cream. Her hands were puffed up, blistered, red and inflamed. Photographs taken approximately two weeks after the occurrence were marked in evidence and indicate that plaintiff sustained a most uncomfortable and painful injury and that the inflammation extended from above the knuckles to above the wrist. Plaintiff further testified that the inflammation took about two months to clear but that her hands are 'still sensitive'. She had never, either before or after this incident, suffered from the conditions reflected in the photographs.

Plaintiff's physician testified that upon her first visit to his office on November 26th, plaintiff gave him a history of swelling and blistering from an application of a cream to remove blemishes from the backs of her hands. Upon examining her, he found considerable edema--waterlogging of the skin tissues, blisters filled with fluid, and redness which extended up to about the middle of the forearms. She complained of very severe burning and itching. The photographs (plaintiffs' exhibits 1 and 2) fairly represent the condition of the arms when he first saw her. His diagnosis of this condition was 'dermatitis medicamentosa,' which is a blistering due to the application of medication. He prescribed cortisone and soaking with boral solution, and treated them for a period of several weeks. When he saw her on the last visit there was some improvement but there was still swelling, redness and blisters. The doctor testified that plaintiff told him at the time of her first examination that immediately after the application of defendant's product she suffered from in itching only of the treated areas but had no rash; that four hours later it became worse and blisters appeared. He had never seen a condition such as the plaintiff's due to any reason other than the application of medication which was that widespread; that for such an extensive area it would have to be caused by a 'definite irritant applied to definite areas.' Defendants' counsel then elicited the following testimony:

'Q On the first examination of Mrs. Spiegel on the first day and subsequently were you able to tell the cause of this particular condition with any degree of medical certainty?

'A Well, I couldn't tell for sure whether it is substance A or B, but since she gave a history of using a particular cream, naturally it applies of course to this cream.

'Q But this is some speculation on your part?

'MR. AXLER: Just a minute.

'THE COURT: Let him finish. He wants to know whether or not it is mere conjectur [sic] on your part, speculation, or whether with reasonable medical certainty you came to that conclusion?

'A Reasonable medical certainty since it is part of the history.'

Defendants rested on plaintiffs' proof. The trial court subsequently in a written decision awarded plaintiff wife the sum of $1,500 and her husband the sum of $53, stating, in substance, that defendants caused to be issued and publicized the statement 'Ultra Nadinola with Dimatron is hospital tested and proven. It is new. It is safe. It works. * * *'. The court then found that this constituted an express warranty; that plaintiff used the product upon the express representation that it was 'safe'; that it was the use of this product alone that was responsible for the injuries. The decision then predicates the award of damages in plaintiffs' favor on the case of Cahill v. Inecto, 208 App.Div. 191, 203 N.Y.S. 1 and rejected as inapplicable the holding in Karr v. Inecto, 247 N.Y. 360, 160 N.E. 398.

Defendants on this appeal urge that plaintiffs failed to prove a prima facie case on any theory. It is our conclusion that plaintiffs adduced sufficient evidence to sustain the award on the theory that defendants breached the express warranty that the product was safe in its use by the plaintiff wife. The evidence adduced at the trial parallels that which appears in Cahill v. Inecto, 208 App.Div. 191, 203 N.Y.S. 1. There plaintiff purchased from defendant a hair dye which she brought to her hairdresser for application, which was commenced about 2:00 P.M. and completed in an hour or an hour and a half. About 9:00 o'clock her head began to itch and the itching then spread to her face and then to her chest. While the complaint sounded in negligence, the court stressed the circumstance that defendant advertised and its pamphlets stated that the product was 'positively safe for use on all healthy skins' (p. 193, 203 N.Y.S. p. 3). The court further observed:

'For aught that appears, it may be used by any one, and does not require the services of a professional hair dresser to apply it, for the same pamphlet states: that it is 'indorsed and recommended by 15,000 royal court and leading continental hairdressers: has received over 20,000 unsolicited letters of praise from users in all parts of Europe.'

The court, in affirming a judgment in plaintiff's favor, stated (p 194, 203 N.Y.S. p. 3):

'We have, then, a case of a woman, in perfect health, who goes to a hair dresser to have her hair dyed. The latter recommends defendant's preparation, which she has bought from it, and which she applies exactly as directed by the defendant's printed instructions. This preparation, defendant represents to be absolutely harmless, except under conditions not here present. Plaintiff then suffers painful and serious injuries as the direct result of the dye thus applied, which her physician testifies in effect, is the competent producing cause of those injuries, and the sole possible one.

'This, in my opinion, made out a sufficient prima facie case for plaintiff, and adequately sustained the burden of proof she had to assume.

'It was then the defendant's duty at least meet this proof by adequate explanation of how the injuries were in fact received. It completely failed to show that plaintiff had any of the physical conditions which made the use of the dye inadvisable for her. It could then have gone further, and shown directly, by some one in its employ or by a chemist, that its preparation contained no chemical or other agent by which plaintiff's injuries could possibly have been occasioned. But it carefully refrained from attempting to make any such proof. It produced five hair dressers, who had used the dye on customers without injury. It produced two physicians whose testimony proved nothing. * * * The proof of the nonharmful character of the ingredients used in this dye was solely within defendant's control. It had represented that its composition was harmless. Such proof was required to be made by it, if it hoped to meet plaintiff's case. Not having attempted to do so, it is difficult to see how the jury could have found otherwise than for plaintiff.'

Clearly, the affirmation in the advertisement, on the carton, and on the jar itself that the product was 'safe' constituted an express warranty, which has been defined by section 93 of the Personal Property Law as follows:

'Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods...