Weiss v. Axler

• Decision Date: 14 July 1958
• Docket Number: No. 18029,18029
• Citation: 328 P.2d 88,137 Colo. 544
• Parties: Floyd WEISS, doing business as Floyd's Beauty Salon, and Clara Maxson, Plaintiffs in Error, v. Ida AXLER, Defendant in Error.
• Court: Colorado Supreme Court

Page 88

328 P.2d 88

137 Colo. 544

Floyd WEISS, doing business as Floyd's Beauty Salon, and Clara Maxson, Plaintiffs in Error, v. Ida AXLER, Defendant in Error.

No. 18029.

Supreme Court of Colorado, En Banc.

July 14, 1958.

Rehearing Denied Aug. 4, 1958.

Graham Susman, Hyman D. Landy, Denver, for plaintiffs in error.

Creamer & Creamer, Denver, for defendant in error.

FRANTZ, Justice.

Ida Axler received a certain permanent cold wave from Floyd's Beauty Salon. The wave was administered by Clara Maxson, a beautician employed by the Salon. After the administration of the permanent wave, Mrs. Axler sustained a loss of hair on the frontal portion of her scalp.

According to her complaint the loss of hair resulted from the negligence of the defendants Floyd Weiss, doing business as Floyd's Beauty Salon, and Clara Maxson. In addition to the general allegation of negligence, Mrs. Axler averred:

'That immediately after the plaintiff noticed the damage to her hair * * *, she advised the defendant Weiss of her condition, and he examined her hair, and then and there admitted that the falling out of plaintiff's hair and the breaking off of hairs in her head was due to incompetence on the part of the beauty operator, to wit, the defendant Clara Maxson; that the said Weiss then and there informed the plaintiff herein that the damage to plaintiff's hair was the direct and proximate result of the fact that his said beauty operator had either used too strong a solution of hair wave while administering said permanent, or, that the said Maxson had allowed the solution to remain in the hair too long a time.'

Mrs. Axler's allegations of negligence, the alleged statements of Weiss, and the resulting damage were denied by defendants, and the case was tried on these issues to a jury. Judgment was entered on a verdict favorable to Mrs. Axler. After the trial court denied defendants' motion for a directed verdict and for the entry of judgment for defendants notwithstanding the verdict, or in the alternative for a new trial, they sought review here by writ of error.

It is asserted that the trial court committed reversible error in eight respects. Summarized, they are: (1) insufficient evidence, and instructing the jury on the law governing the doctrine of res ipsa loquitur; (2) Mrs. Axler in pleading specific acts of negligence was foreclosed from relying on the doctrine of res ipsa loquitur; (3) the refusal of the court to admit testimony concerning custom and usage in the application of a permanent wave solution which is directed by the manufacturer thereof to be used in a specific way, a way inconsonant with said custom and usage; and (4) the admission in evidence, over objection, of photographs of the head and hair of Mrs. Axler without first requiring her to lay a foundation for their admission.

Mrs. Axler appeared at the Salon for a permanent wave and Mrs. Maxson was assigned to perform the treatment. Her hair was washed, dried, rolled on curlers, and a lotion worked into the curls. This lotion was left on for about twenty minutes, after which Mrs. Maxson poured a solution on the hair, washed it out, set it in pin-curls, and applied a dryer. When the hair had dried, Mrs. Maxson combed and set it.

At the time of, and prior to, the treatment Mrs. Axler's hair was of medium thickness, and of a fine and silky texture. In making the wave application Mrs. Maxson failed to follow the manufacturer's manuals of instruction regarding test-curl procedure.

Within a few days Mrs. Axler's hair began breaking and falling out, followed by bald spots on her scalp. She and her husband saw Weiss by appointment. Weiss examined her hair and scalp, and according to Mr. and Mrs. Axler advised them that it 'looked like' Mrs. Maxson had left the solution on too long, or that the solution used had been too strong. Mrs. Axler also testified that Weiss told them that it might have been a combination of a strong solution too long applied.

Without charge to the Axlers, Weiss undertook to, and did, give Mrs. Axler a number of remedial treatments. His efforts at hair restoration were bootless. She resorted to medical aid, securing the services of dermatologists who administered to her.

According to the doctors her hair was damaged as a result of the wave application. Their testimony indicated that such damage is not the normal but the abnormal result in permanent wave treatment. They attributed the hair damage to the administration of the permanent wave. There is medical testimony that the hair damage was not traceable to her physical condition or to an allergy.

Facts pertinent to the discussion of the other questions will be set forth at the time these questions are resolved in this opinion.

The maze of decisions in this state regarding the doctrine of res ipsa loquitur results in 'confusion worse confounded.' Truly, our appellate courts have cumbered the doctrine with loose, inaccurate and contradictory statements to the point that a pruning job becomes imperative so that the doctrine will assume a precise and symmetrical form.

It seems a proper sequitur to say that the more we are removed from 'the horse and buggy days,' the more intensified and diversified our industrialism, mechanics and science become, the more technology and automation advance, the more the doctrine of res ipsa loquitur should take on a stellar role in the law of negligence. The necessity to remove existing confusion and to state a formulary for the use of the doctrine thus appears obvious.

Law should march abreast of a highly mechanized and science-developed economy. It was no idle warning that the Supreme Court of California voiced in proposing as an alternative to a widening use of the doctrine of res ipsa loquitur that 'courts, to avoid gross injustice, would be forced to invoke the principles of absolute liability, irrespective of negligence * * *.' Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 689, 162 A.L.R. 1258. To us this, of course, is a wholly unacceptable expedient of doubtful validity, and one not needed if res ipsa loquitur is resorted to in proper cases and properly applied.

It may not be amiss to heed the prognosis of Mark Shain in his work, 'Res Ipsa Loquitur,' wherein he said at page 264:

'The very interests which these unreasoned decisions seem to serve--ownership and management--may ultimately realize that the true doctrine res ipsa loquitur and its burden-shifting presumption is, in reality, their friend and refuge. * * *'

Over the years three irreconcilable results have developed in the application of the maxim of res ipsa loquitur by the appellate courts of this state. In a substantial majority of the cases in which the courts have said res ipsa loquitur, the courts have held that the burden shifts to the defendant to overcome the presumption of negligence by an explanation showing the defendant not to have been guilty of negligence. In other cases the application merely shifts to the defendant the burden of going forward with evidence indicating the absence of negligence on his part. And still other cases hold that the presumption is evidence, to be weighed as such against the evidence of defendant in explanation of the occurrence, upon which the jury might find for the plaintiff, and the court, presuming such contingent result, is obligated to submit the case to the jury for determination.

The earliest decision in Colorado involving res ipsa loquitur is apparently that of Kansas Pacific Railway Co. v. Miller, 2 Colo. 442. The railroad's bridge gave way, resulting in death to one of the passengers, for which an action was instituted. This case is the pace-setter for the burden-shifting theory. It was therein declared:

'* * * The moment such a state of affairs was shown to exist, the presumption of negligence on the part of the defendant necessarily arose, and it required evidence on its part to overcome that presumption, and establish affirmatively that no negligence existed on its part, to which the accident could be attributed.' (Emphasis supplied.) Another early case clearly stated the same doctrine in these words:

'In respect to the fourth instruction given on behalf of the plaintiff, defendants' counsel contend that it contains two erroneous propositions, the first of which is decidedly against the weight of authority.

'The first proposition is, that proof that the plaintiff was a passenger on defendants' coach, that the coach was overturned, and that the plaintiff was injured thereby, raises the presumption that the overturning occurred through the negligence of the defendants.

'The second proposition is, that the foregoing facts being established to the satisfaction of the jury, the burden of proof is cast upon the defendants to show the absence of such negligence on their part, or negligence on plaintiff's part, which contributed to the injury.

* * *

* * *

'While the fourth instruction is in conflict with the rule established in the cases above cited, we do not think it opposed to the weight of authority upon the point, but in conformity therewith.

'The same rule laid down in the instruction was recognized by this court as the correct one in the case of Denver, S.P. & P. Ry. Co. v. Woodward, Administrator, 4 Colo. 1.' (Emphasis supplied.) Wall v. Livezay, 6 Colo. 465.

Sanderson v. Frazier, 8 Colo. 79, 5 P. 632, 635, involved a suit for damages sustained by a passenger by reason of the coach in which he was riding upsetting. Again this court applied the burden-shifting doctrine, saying:

'* * * Mr. Story lays down the rule as follows:

"Where any damage or injury happens to the passengers by the breaking down or overturning of the coach, or by any other accident occurring on the road, the presumption, prima facie, is that it occurred by the negligence of the coachman, and the onus probandi is on the proprietors of the coach to establish that there has been no negligence whatsoever, and that the damage or injury had...