Walker v. Klein

• Decision Date: 04 April 1939
• Docket Number: No. 24867.,24867.
• Citation: 127 S.W.2d 51
• Parties: WALKER v. KLEIN.
• Court: Missouri Court of Appeals

127 S.W.2d 51

WALKER v. KLEIN.

No. 24867.

St. Louis Court of Appeals. Missouri.

April 4, 1939.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Suit by Blanche Walker against Edna Klein, doing business as the Artiste Beauty Shop, to recover damages for personal injuries allegedly sustained as a result of being burned while receiving a permanent wave hair treatment at the defendant's beauty shop. From a judgment sustaining plaintiff's motion for a new trial after a verdict for defendant, the defendant appeals.

Judgment affirmed and cause remanded.

Louis J. Reidel and J. A. Gochenour, both of St. Louis, for appellant.

Eagleton, Waechter, Elam & Clark, of St. Louis, for respondent.

McCULLEN, Judge.

This suit was brought by Blanche Walker, as plaintiff, against Edna Klein doing business as Artiste Beauty Shop, as defendant, to recover damages for personal injuries alleged to have been sustained by plaintiff as a result of being burned while receiving a "permanent wave" hair treatment at defendant's beauty shop in the City of St. Louis, Missouri. A trial before the court and a jury resulted in a verdict for defendant. Plaintiff filed a motion for a new trial, which was sustained by the trial court, from which action of the court defendant appeals.

Plaintiff's petition was based upon the doctrine res ipsa loquitur. In substance it alleged that defendant owned, operated and controlled in the City of St. Louis, Missouri, a beauty shop and all the equipment and appurtenances therein; that, pursuant to defendant's invitation to the general public, plaintiff entered said shop on or about April 8, 1936, for the purpose of securing a hair treatment known as a "permanent wave"; that, while receiving such hair treatment from the machine and appurtenances then and there operated by defendant, her agents and servants, who were in exclusive control thereof, plaintiff's head, scalp, forehead and hair were seriously burned and disfigured by said machine, as a direct result of the negligence and carelessness of defendant, her agents and servants.

The answer of defendant was a general denial.

The evidence shows that, on April 8, 1936, plaintiff received a "permanent wave" treatment for her hair in defendant's beauty shop. It is undisputed that the method used in giving plaintiff the "permanent wave" was the regular routine method used by defendant's shop, consisting of washing and drying the hair; wrapping the hair and applying permanent wave lotion; baking or steaming the hair; cooling and removing clips used during the baking or steaming process; and finally dampening and setting the hair.

Plaintiff described in detail the wrapping procedure, showing that her hair was divided into numerous plaits by one of defendant's employees who are called operators, each plait having been drawn through a slit of a small pad with leather on one side and felt on the other, with the felt side placed next to her scalp. Plaintiff testified that her hair was then fastened around a small rod about three and a half inches long and a quarter of an inch in diameter; that, when the wrapping was completed, she had upon her head about thirty-five of the devices composed of pads and rods, after which a liquid permanent wave lotion was applied to the hair wrapped about the rods; that she was then taken to another room where, under the direction of another of defendant's operators, she was placed under an electric permanent wave machine, a domeshaped appliance about eighteen inches in diameter with electric wires extending down from the dome and having metal clamps, referred to as "bakers", attached to the lower end of the wires; the dome appliance was then placed about two feet above plaintiff's head, and a clamp was fastened over and about each rod so that the clamp was on the top or leather side of each of the pads. Under the method which was used, when the electric current is turned on in the machine, the small rods in the clamps get hot and the lotion applied to the hair, coming in contact with the hot rods in the clamps, generate steam which curls the hair into a "permanent wave". According to the undisputed evidence, the generation of the steam is an essential part of the procedure. It is also undisputed that, when the permanent wave machine is in operation, the rods around which the customer's hair is wrapped of wound and the metal clamps referred to as "bakers" get hot enough to burn a person who might come in contact with them. The length of time required for the use of the permanent wave machine is dependent upon the texture of the customer's hair, varying from seven to fourteen minutes, according to the evidence, to secure the amount of steam necessary to give the "permanent wave." An electric blower, shaped like a pistol, with a handle to hold it in the hand, is used as an accessory to each machine, with which the operator applies a stream of cold air to any portion of a customer's scalp which might become overheated when the permanent wave machine is in operation. The blower is used to prevent a customer's scalp from being burned, which the evidence shows might occur if the blower is not promptly applied by the operator. After the permanent wave machine has been applied a sufficient length of time, it is turned off, the clamps or "bakers" are disengaged by the use of insulated parts which the operators use for that purpose, and the dome is removed from above the customer's head. The customer's hair and the rods upon which it is wound are then cooled under the blower by another of defendant's operators, after which the rods and pads are removed. The curls of hair are then dampened, dried under a drier, and combed, after which the customer's hair is set, which completes the permanent wave treatment.

It is not disputed that plaintiff was given the regular routine treatment described; that she was under the permanent wave machine for a period of about twelve minutes; and that it became necessary during that period to use the blower to cool portions of her scalp several times.

Plaintiff testified that, when the "baking" process began, the girl operator informed her that as long as the heat was even there would be no danger of a burn; that the operator told plaintiff that, as soon as she began to feel the heat, plaintiff should call the operator; that she saw the operator turn a switch that started the machine, and it began to get hot; that the heat was even all over her head at first, and then it began to get warmer by degrees; that, after about two minutes, she noticed it was beginning to get warmer on certain portions of her head, at the back, right side, and front; that she called the operator, who came over and cooled plaintiff's head with the cold air blower; that she also called the operator a second time for the same purpose; that after another two minutes the heat got so terrific she couldn't stand it; that at this point plaintiff asked the operator to come and cool her head for the fourth time. In this connection plaintiff testified, referring to the operator: "At this time she was putting supplies away in a closet directly in front of me. The heat was most intense at the last occasion and I informed her it was awful hot. She said all right, but did not come to attend me immediately and a period elapsed from approximately 40 to 60 seconds before she came over, at which time she said it is 12 minutes and turned the machine off. However, she took up the blower and cooled my head."

Plaintiff testified that, after the baking process was completed, the clamps were taken off and she went into a fourth room in which her hair was dampened and set; that one of the girl operators then informed her that she had been burned, and called defendant who took her to a back room and applied some medicine, putting some purple medicine on the back and side of plaintiff's head, and white medicine on the front thereof; that defendant gave her a bottle of medicine with some cotton with which to apply it, after which plaintiff paid for the permanent wave treatment and left defendant's shop; that she returned to defendant's shop the following morning because her head was very painful; that she saw defendant, who took her to Dr. Harris in the same building; and that Dr. Harris treated the wounds on her head and told her it would not be necessary for her to return; that on the following Monday she returned to see defendant as her head was no better, and defendant told her a shampoo would do some good; that she was given a shampoo by defendant, who let the hot water run over plaintiff's head for a long time; that a spot in front of her head bothered her most as there was a large scab on it; that some of the salve given to her by Dr. Harris was then applied, and she left defendant's shop; that on the Sunday following that Monday she was taken to Dr. Ferris by her husband as the wound on her head had become infected; that Dr. Ferris gave her medicine for her nerves; that prior to April 8, 1936, her nerves had been good, she had had no serious illness for three years, but that after the permanent wave was given she was very nervous, had headaches frequently, and was unable to sleep at night; that restlessness and headaches continued two and a half months until those conditions cleared up. Plaintiff further testified that she didn't have any control over the permanent wave machine and could not switch it on or off; that it was entirely under the control of defendant's operator. It is unnecessary to describe further plaintiff's injuries since no question concerning the injuries is raised on this appeal.

Defendant gave testimony in her own behalf, and during her testimony gave a demonstration in the courtroom showing the process of "baking" or "steaming" the hair; and testified that the heat under the pads during the process did not reach a temperature higher than ninety-one degrees after the...