Stokes v. Godefroy Mfg. Co.

• Decision Date: 17 April 1935
• Docket Number: No. 32970.,32970.
• Citation: 85 S.W.2d 434
• Parties: STOKES v. GODEFROY MFG. CO.
• Court: Missouri Supreme Court

85 S.W.2d 434

STOKES v. GODEFROY MFG. CO.

No. 32970.

Supreme Court of Missouri, Division No 1.

April 17, 1935.

Rehearing Denied July 9, 1935.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

Action by Sarah E. Stokes against the Godefroy Manufacturing Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

Sidney R. Redmond, of St. Louis, for appellant.

Albert D. Nortoni, Lowell L. Sparling, and Nortoni & Sparling, all of St. Louis, for respondent.

FERGUSON, Commissioner.

Action for damages for personal injuries which plaintiff alleges resulted from the use of a hair dye manufactured and sold by defendant. Upon trial of the cause in the circuit court of the city of St. Louis the jury returned a verdict for defendant, and plaintiff appealed from the judgment entered thereon in favor of defendant. The petition asks damages in the amount of $15,000; therefore, our jurisdiction of the appeal. Appellant assigns error in the admission of certain evidence on the part of defendant and the rejection of certain evidence offered by plaintiff, the giving of instructions at the request of defendant and the refusal of instructions offered by plaintiff, and the alleged failure of the court to reprimand counsel for defendant and to instruct the jury to disregard improper and prejudicial argument of defendant's counsel.

An understanding of the nature of the action and the issues involved is necessary to a review of, and ruling on, these assignments. The defendant company compounded or manufactured sundry hair dyes and similar preparations, and offered same for sale to the public generally through drug stores and like agencies. One of these hair dyes was labeled and sold by defendant under the name of "Larieuse Hair Dye," which the defendant company has been making, distributing, and offering for sale to the public since 1924. A package of this "Larieuse Hair Dye" was made up of a carton containing a bottle of liquid, four No. 1 size capsules containing a powder and a four-page printed pamphlet or circular of directions and comment concerning the use of the dye. The bottle was made of a dark or amber colored glass, and marked or graduated so as to measure the liquid content thereof into four equal parts. To properly prepare the dye for use, the directions were to mix and dissolve the powder content of one capsule in a one-fourth part of the liquid as thus designated by the marking of the bottle. This made a black dye. Plaintiff testified that in December, 1930, she purchased a package of Larieuse Hair Dye at a drug store in St. Louis; that she followed the directions therein as to a preliminary test and the use of same; that she emptied the contents of the four capsules into a bowl and then poured the entire liquid content of the bottle onto the powder, and, having thoroughly mixed and dissolved the powder in the liquid, she took therefrom a sufficient quantity to make the preliminary test, according to directions, and poured the remainder into the bottle and tightly corked or sealed the bottle; that upon expiration of the test period, no unfavorable reaction appearing, she applied the mixture to her hair; that before she "was through dyeing her hair her scalp began to pain, her eyes to burn and water and to become red and swollen; her face broke out with red pimples"; that "her lips became swollen; her face and ears raw," and she became "nauseated and nervous"; that she was treated by her family physician, a Dr. Stafford, "was confined to bed about two weeks"; that the doctor called at her home three or four times and she "went to his office twentyfive or thirty times," and at the time of trial "was still under his treatment" and suffers "dizzy spells," is troubled with sleeplessness, nervousness, and has lost much weight; that she did not suffer from any of these ailments before she used the dye in December, 1930; and that she had previously used the Larieuse Hair Dye with satisfactory results and without any ill effects.

The facts stated, supra, suffice to permit us to give attention here to the charge of negligence made in the petition that "defendant impliedly and expressly warranted and represented to her (the plaintiff) that said Larieuse Hair Preparation was fit, safe and suitable for the purpose of dyeing one's hair; that it had been properly manufactured, but that said preparation was negligently and carelessly concocted and made, in that it contained an excessive amount of paraphenylenediamine and other ingredients; that said excessive amount of paraphenylenediamine poisoned plaintiff and together with other ingredients in said compound caused the injuries hereinabove set forth." Thus plaintiff pleads and specifies the precise negligence, or negligent act, on the part of defendant which she charges caused the injuries which she claims to have sustained, that is, that in compounding or making the preparation defendant used an excessive amount of paraphenylenediamine, and "that said excessive amount of paraphenyienediamine poisoned" her. Plaintiff's evidence in support of this charge, viewed in the most favorable light, is vague and indefinite, and certainly no support therefor is found in the evidence offered on behalf of defendant; however, the trial court ruled that the plaintiff made a case for the jury, overruled defendant's demurrers to the evidence, and submitted the case to the jury.

Plaintiff's original theory is reflected in the statement of her counsel made in the course of the trial, that "we are not saying all the dye would have caused the same results. Plaintiff testified that she used a bottle with good results; our contention is that this particular bottle poisoned her." Apparently, therefore, plaintiff did not originally take the position that the use of paraphenylenediamine in compounding the dye made it dangerous and was in itself a negligent act, or that in the preparation of the dye generally an excessive amount of paraphenylenediamine was used by defendant company, but that the defendant had negligently placed an excessive amount thereof in this particular package which she purchased and used on the occasion which she says resulted in the injuries complained of. However, in support of her allegation that on account of "an excessive amount of paraphenylenediamine" in the dye which she purchased in December, 1930, she was poisoned, she called as a witness Carl A. Nowak who "qualified as an expert analytical chemist." Nowak testified that he purchased two package of "Godefroy's Larieuse Hair Dye" at two different stores and "analyzed" the contents thereof; that the packages contained "two preparations, a liquid and a powder; that the powder was paraphenylenediamine which is a coal tar derivative resulting from benzene or some analine * * * that the liquid was a three per cent solution of hydrogen peroxide; that the dye is" made by mixing the powder with the hydrogen peroxide forming "a black liquid"; that "paraphenylenediamine is, in my estimation, a poison"; that "all coal tar products are in a greater or lesser degree poisonous"; that "a poison is any substance that produces harm to the human being. I would say anything that is injurious would be poisonous, even a mosquito bite, to a certain degree, is poisonous, otherwise it would not irritate the skin * * * quinine, in my estimation, is a poison"; that "paraphenylenediamine is a recognized dye which has in common with most of the analine dyes the property of penetrating the skin" and if it "gets on the skin I should say it is likely to be poisonous." But, and we quote from appellant's statement, the witness further testified that the "hydrogen peroxide is kept in an amber colored bottle because it decomposes so rapidly to water"; "that the hydrogen peroxide is used for no other reason than to lessen the poisonous properties of this an aline dye;" that "a thirty per cent solution of hydrogen peroxide is the highest on the market" and "is a ten times stronger oxidizing agent than the three per cent solution" used by defendant in this preparation; "that there is not enough safety in a three per cent solution of hydrogen peroxide" for the amount of powder used especially for "a person not knowing the danger of the powder"; and "that if the powder were used with water alone it would be quite poisonous." Apparently plaintiff thought by this testimony to sustain the charge made in her petition that defendant used "an excessive amount of paraphenylenediamine" in the preparation of the hair dye in that the amount or proportion of the powder provided was such that the alleged poisonous effects thereof could not be sufficiently overcome or offset by the 3 per cent. solution of hydrogen peroxide used. Plaintiff offered in evidence a part of the 4-page printed circular and directions which is placed in each package of the Larieuse Hair Dye, that is only an excerpt therefrom which appears in the record here. We quote only the more pertinent parts of the except: "There are some people who cannot eat fish without becoming ill, and some who cannot eat strawberries without getting the `strawberry rash;' in the same way, there are a few people who cannot use our `Larieuse' without getting similar effects, being those with predisposed blood. The blood is generally predisposed during the early springtime — at the beginning of the hot weather, and during the change of life, and with persons suffering, or having suffered with private hereditary or contagious diseases. Nevertheless, the trouble might occur for some other reasons. For these latter we have another colouring condensed in one liquid, `Le Songe.' * * * Hair dye might be compared to tobacco or liquor; the user takes the risk. There are some people show cannot smoke or who cannot drink without becoming sick, getting a sore tongue, dizziness, etc., but this is known, and the user knows he takes the risk. Besides the `Larieuse,' we have on the market several colorings. ...