State ex rel. Jones Store Co. v. Shain

• Decision Date: 06 March 1944
• Docket Number: 38646
• Parties: State of Missouri at the relation of Jones Store Company, a Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and Nick T. Cave, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

179 S.W.2d 19

352 Mo. 630

State of Missouri at the relation of Jones Store Company, a Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and Nick T. Cave, Judges of the Kansas City Court of Appeals

No. 38646

Supreme Court of Missouri

March 6, 1944

Rehearing Denied April 3, 1944.

Opinion of Court of Appeals quashed.

John A. McGuire, Clay C. Rogers and Mosman, Rogers, Bell & Conrad for relator.

(1) The opinion of the Court of Appeals, in holding that plaintiff could recover for breach of implied warranty, is in conflict with the controlling decisions of this court. Hunter v Waterloo Gasoline Engine Co., 260 S.W. 970; Hunt v Sanders, 313 Mo. 168, 281 S.W. 422; Little v. Widener, 226 Mo.App. 525, 32 S.W.2d 116; Barton v. Dowis, 315 Mo. 226, 285 S.W. 988; Lindsborg Milling & Elev. Co. v. Danzero, 189 Mo.App. 154, 174 S.W. 459; Busch & Latta Paint Co. v. Woermann Constr. Co., 276 S.W. 614; Shroder v. Barron-Dady Motor Co., 111 S.W.2d 66; Moore v. Koger, 113 Mo.App. 423, 87 S.W. 602. (2) No pleading, or submission that the article sold was for a special purpose. Barton v. Dowis, 315 Mo. 226, 285 S.W. 988; Wells v. Welch, 205 Mo.App. 136, 224 S.W. 120. (3) Caveat emptor applies to this sale. Thompson v. Miser, 82 Ohio St. 289, 92 N.E. 420; Lindsay v. Davis, 30 Mo. 406; Moore v. Miller, 100 S.W.2d 331; Moore v. Koger, 113 Mo.App. 423, 87 S.W. 602; Wells v. Welch, 205 Mo.App. 136, 224 S.W. 120; Shroder v. Barron-Dady Motor Co., 111 S.W.2d 66; Matlock v. Meyers, 64 Mo. 531. (4) The opinion of the Court of Appeals in holding that the testimony of Dr. Goldman constituted substantial evidence that the blouse contained a poisonous or irritating substance is contrary to the controlling decisions of this court. Hamilton v. St. Louis Ry. Co., 300 S.W. 787; Warner v. Ry. Co., 178 Mo. 125, 77 S.W. 67; State ex rel. v. Bland, 313 Mo. 246, 281 S.W. 690; Watkins v. Bird-Sykes, Bunker Co., 322 Mo. 830, 840, 16 S.W.2d 38; Hunt v. Armour & Co., 136 S.W.2d 312; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644. (5) If any inference or presumption did arise from the testimony that the blouse contained a poisonous, toxic, or irritating substance, the positive, unimpaired, and unequivocal proof that it contained no such substance overcame that presumption. Ross v. St. Louis Dairy Co., 339 Mo. 982, 98 S.W.2d 717; State ex rel. v. Hostetter, 344 Mo. 443, 126 S.W.2d 1164; Sowers v. Howard, 346 Mo. 10, 139 S.W.2d 897; Dalrymple v. Craig, 149 Mo. 345, 50 S.W. 884; Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Dorsett v. Pevely Dairy Co., 124 S.W.2d 624. (6) The opinion of the Court of Appeals in holding that there was substantial evidence that the blouse contained a poisonous, toxic, or infectious substance at the time it was sold to the plaintiff which caused her dermatitis is contrary to and in conflict with the controlling decisions of this court which hold and rule that a case may not be made by building one inference upon another inference. Cardinale v. Kemp, 274 S.W. 437; Hays v. Hogan, 273 Mo. 1, 200 S.W. 286; Tillotson v. Travelers Ins. Co., 304 Mo. 487, 263 S.W. 819; State ex rel. Mo. Public Utilities Co. v. Cox, 298 Mo. 427, 250 S.W. 551; Wills v. Berberich's Delivery Co., 345 Mo. 616, 134 S.W.2d 125.

John C. Nipp, E. E. Thompson and Alfred H. Osborne for respondents.

(1) The opinion of the Court of Appeals in holding that plaintiff could recover for breach of an implied warranty is not, on the facts stated in respondents' opinion, in conflict with the controlling decisions of this court. Hunter v. Waterloo Gasoline Engine Co., 260 S.W. 970; 35 Cyc. 399; State ex rel. Sterling v. Shain, 344 Mo. 891, 129 S.W.2d 1048; Shroder v. Barron-Dady Motor Co., 111 S.W.2d 66; Lindsay v. Davis, 30 Mo. 406; Barton v. Dowis, 315 Mo. 226, 285 S.W. 988; Busch & Latta Paint Co. v. Woermann Contr. Co., 276 S.W. 614; State ex rel. Cox v. Trimble, 312 Mo. 322, 279 S.W. 60; State ex rel. Sei v. Haid, 332 Mo. 1061, 61 S.W.2d 950; State ex rel. Koenen v. Daues, 288 S.W. 14; State ex rel. Maclay v. Cox, 320 Mo. 1218, 10 S.W.2d 940; State ex rel. City of Macon v. Trimble, 321 Mo. 671, 12 S.W.2d 727. State ex rel. St. Louis-S.F. Ry. Co. v. Haid, 327 Mo. 217, 37 S.W.2d 437; State ex rel. St. Louis-S.F. Ry. Co. v. Cox, 329 Mo. 292, 46 S.W.2d 849; State ex rel. Appel v. Hughes, 173 S.W.2d 45; State ex rel. Waters v. Hostetter, 344 Mo. 443, 126 S.W.2d 1164; State ex rel. Public Serv. Comm. v. Shain, 342 Mo. 867, 119 S.W.2d 220; State ex rel. Alton Ry. Co. v. Shain, 346 Mo. 681, 143 S.W.2d 233. (2) The opinion of the Court of Appeals in holding there was substantial evidence the blouse contained poisonous or irritant substances was supported by substantial evidence and such holding is not in conflict with the controlling decisions of this court, but in harmony therewith. Likewise, the opinion in holding the testimony of Dr. Goldman constituted substantial evidence that the blouse contained a poisonous or irritating substance is not in conflict with the controlling decisions of this court, but on the contrary is entirely in accord therewith. State ex rel. Ocean Acc. & Guar. Corp. v. Hostetter, 108 S.W.2d 17, 341 Mo. 488; Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84; O'Leary v. Scullin Steel Co., 260 S.W. 22; Wild v. Pitcarin, 149 S.W.2d 800; Morton v. St. Louis-S.F. Ry. Co., 20 S.W.2d 34, 323 Mo. 929; Rose v. Mo. District Telegraph Co., 43 S.W.2d 562; Draper v. L. & N.R. Co., 156 S.W.2d 626; State ex rel. Waters v. Hostetter, 126 S.W.2d 1164; State v. Blankenship, 50 S.W.2d 1024; Van Brock v. First Natl. Bank in St. Louis, 161 S.W.2d 258; Wills v. Berberich's Delivery Co., 134 S.W.2d 125; State ex rel. Mulcahy v. Hostetter, 139 S.W.2d 939.

Leedy, J. All concur except Gantt, J., absent.

OPINION

LEEDY

Original proceeding in certiorari to review, for alleged conflict, the opinion of the Kansas City Court of Appeals in Marra, plaintiff-respondent, v. Jones Store Co., defendant-appellant, 170 S.W.2d 441. The action is one for damages for breach of an implied warranty in the sale of a colored blouse by relator to plaintiff. Plaintiff recovered judgment for $ 3,000.00, which, on appeal, was affirmed by the respondents, one judge dissenting.

Relator claims conflict in the holding that there was an implied warranty of suitability, and in the further holding that the evidence was sufficient to establish a breach of such warranty. The facts for our consideration are taken from the opinion as follows: Jones Store Co., is a department store at which the plaintiff, Marra, on October 27, 1938, purchased for her own use, a colored satin blouse, paying therefor the sum of $ 1.95. The blouse was wrapped in a package and delivered to plaintiff; she took it home with her, and immediately took it out of the wrapping and put it on a hanger in the clothes closet where it did not come in contact with any other clothing or object. She wore the blouse all day at her work as a clerk on November 11, 1938. In the afternoon she noticed an itching sensation around her neck and arms, and when she got home and took the blouse off, the dye had faded on her arms and undergarment at her arm pits. It itched and would not wash off. She did not wear the blouse again, but on the next day tiny red pimples appeared over her arms and some on her neck and shoulder. Her physician diagnosed her condition as infectious dermatitis, a condition of inflammation of the skin caused by infection and irritation. The physician's conclusion was that there must have been some poisonous or irritating substance in the blouse, although as to what substance, he had no idea. Relator had bought hundreds of such blouses from the New York firm which manufactured the particular blouse in question, and never had any other complaint. There were no defects discernible in the blouse, and nothing in its appearance which indicated in any way that it would be harmful to any person wearing it.

In considering the question as to whether there was an implied warranty that the blouse would be suitable for personal wear by the plaintiff, it should be noted that it appears from the opinion that the relator was not the manufacturer or producer of the article sold to the plaintiff, but was a retailer; that the alleged harmful quality in the article was a latent defect unknown to the relator, and that an inspection of the blouse would not have disclosed any defect.

Relator claims that the opinion conflicts with Lindsay v. Davis, 30 Mo. 406, involving a latent defect in a horse, which states the following general rule of caveat emptor applying to the sale of personal property: "The maxim that a sound price implies a sound commodity, although a favorite one in the civil law, and occasionally borrowed to settle questions under our system, has never met with general favor, or taken root as a permanent part of the common law. Our law is, that the buyer takes the risk of quality and condition, unless he protects himself by a warranty, or there has been a false representation fraudulently made by the vendor." This decision was cited and the rule of caveat emptor reaffirmed in the more recent case of Barton v. Dowis, 315 Mo. 226, 285 S.W. 988, 51 A.L.R. 494, which will be hereinafter discussed.

Respondents claim that conflict with the foregoing rule is avoided by an exception announced in Hunter v. Waterloo Gasoline Engine Co., (Mo.) 260 S.W. 970. In that case it was held that there is ordinarily no implied warranty of suitability in the sale of merchandise by a retailer, but there is an exception where the vendor "undertakes to supply an article for a particular purpose, knowing that the buyer trusts to his judgment that the article is suitable for that purpose." Respondents claim their opinion is in accord with said ruling, and relator asserts it is...