Williams v. S. H. Kress & Co.

• Decision Date: 15 December 1955
• Docket Number: No. 33401,33401
• Citation: 291 P.2d 662,48 Wn.2d 88
• Court: Washington Supreme Court
• Parties: Howard WILLIAMS, Respondent, v. S. H. KRESS & COMPANY, a corporation, Appellant.

Page 88

48 Wn.2d 88

291 P.2d 662

Howard WILLIAMS, Respondent, v. S. H. KRESS & COMPANY, a corporation, Appellant.

No. 33401.

Supreme Court of Washington, Department 1.

Dec. 15, 1955.

Rehearing Denied Feb. 24, 1956.

Graves, Kizer, Greenough & Gaiser, Robert D. Skidmore, Spokane, for appellant.

Henry Opendack, Spokane, for respondent.

SCHWELLENBACH, Justice.

S. H. Kress & Company is in the general merchandise business. It operates 264 retail stores throughout the United States and Hawaii. The Benjamin Ansehl Company of St. Louis manufactures toilet articles, cosmetics, and drug products, which it sells to large chain store organizations, wholesalers and general merchandise companies. It prepares and markets a product called 'Aseptisol'. Dress & Company is a large purchaser and distributor of this product. Affixed to each bottle of Aseptisol is a label, which reads:

'A safe, efficient antiseptic and deodorant for home and hospital use--agreeable and convenient. Use full strength for:

Bad Breath

Mouth Wash

Insect Bites

Burns

After Shaving

Astringent

Abrasions

Cuts

Dandruff'

Mrs. Grace Williams is a housewife living in Spokane. May 14, 1954, she purchased a bottle of Aseptisol at the local Kress store. She had never before used this product. We quote her testimony as to what occurred after she arrived home:

'* * * and I walked over to the sink in preparation to gargling with the Aseptisol which I had purchased, and I took it into my mouth and tipped my head back to gargle with it and the taste was so strange and obnoxious I swallowed some accidentally. I gulped and swallowed it and very shortly after that I felt nauseous and ill.

'* * * This nauseous feeling, this terrible, miserable feeling kept up for, oh, perhaps thirty minutes and I began to vomit, and I became violently ill and vomited profusely until there was nothing left in my stomach. I was just wretching from the effect of this.' The husband testified:

'Well, she took the lid off the bottle and put a small quantity of it in her mouth and tipped her head back to gargle with it, I presume, and her eyes got big and she turned a pale color and made a dive for the bathroom and I could hear her gagging in there.

'* * *

'Mr. Opendack: Q. Did you at this time taste the Aseptisol or put it in your mouth to try it? A. Yes, I took the bottle and took a little bit of it to taste it to see what it was, to see if I could tell what was in it. Do you wish me to describe it? It tasted to me like a mixture of liquid soap and cheap perfume and fly spray, as far as I could tell.

'Q. Did you have any ill effects from it yourself? A. I didn't swallow any of it. I got rid of it immediately but it took me about two days to get the taste out of my mouth and I ate about everything there was in the kitchen, but it is just a taste that you couldn't get rid of. I mean it stuck with you.'

Mrs. Williams testified that she could not sleep that night; that she was ill for three weeks and that at the time of trial certain odors made her nauseous.

The following day she went back to the store and complained about what had occurred. About a week later she took the bottle back to the store manager. He emptied a bottle from his stock, poured half of the contents of Mrs. Williams' bottle into the empty bottle, gave back to her what remained, and arranged that the portion which he obtained be sent back to the headquarters of the company for a chemical test.

This action was commenced to recover damages for alleged injuries to Mrs. Williams because of the use of the mouthwash. Paragraph V of the complaint alleged:

'At the time of the purchase, the defendant had impliedly warranted that said 'Aseptisol' was fit for use as a mouth wash, was wholesome and merchantable as such.'

The case was tried to the court and it awarded judgment for the plaintiff in the sum of $1,000. This appeal follows.

Error is assigned in denying the challenge to the sufficiency of the evidence to establish a cause of action for breach of warranty; in entering judgment for respondent; in denying motion for judgment notwithstanding the verdict; and in finding facts from which a conclusion of causation could be drawn.

Mr. Anderson, the local manager, testified that he gave the bottle containing half of the contents of Mrs. Williams' bottle to Miss DuBois, the merchandise clerk, with instructions to mail it to the main office in New York, together with a report of the complaint of Mrs. Williams. Miss DuBois testified that she packed the bottle in tissue paper and attached Mr. Anderson's report to the box, which was addressed to the main office; sealed the package and placed it in the receiving room for mailing. Mr. C. O. Hobbs, in the main office, testified by deposition that he received a bottle of Aseptisol, half full, wrapped in tissue paper, to which was attached Mr. Anderson's report concerning Mrs. Williams' complaint; that the following day he mailed it to the Benjamin Ansehl Company in St. Louis. Harry Ansehl, the president of the company, testified by deposition, that he was in the office of Mr. Hobbs when the package from Spokane arrived; that he opened the bottle, smelled and tasted some of the contents, and suffered no ill effects; that he carried the bottle in his brief case to St. Louis, where he poured some of the contents into a beaker, which he gave to Mr. Young, their chemist.

Ralph E. Young, chief chemist for the company, testified by deposition concerning the ingredients in Aseptisol, and concerning its preparation; that he made an analysis of the contents of the beaker, found them to be free from defect and identical with that of a mormal batch; that he swallowed a portion--more than would be swallowed by any one using it as a mouthwash, and had no ill effects whatsoever.

The trial court was of the opinion that the evidence of tracing the bottle from Spokane to St. Louis was very unsatisfactory. There was a discrepancy between the testimony of Mr. Hobbs and Mr. Ansehl as to how the bottle reached St. Louis, and its progress was not traced with the particularity which an F.B.I. agent would use in tracing a package, containing evidence to be used in a criminal trial, from a county sheriff's office.

Be that as it may, it is undisputed that in 1954 the company produced 62,400 bottles of Aseptisol, and never received a complaint. It is also undisputed that this bottle was one of a batch of 5,600 bottles, and that this was the only complaint received by purchasers of that batch.

The rule as to implied warranty is stated in Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633, 634, 48 L.R.A.,N.S., 213, as follows:

'It has been accepted as a general rule that a manufacturer is not liable to any person other than his immediate vendee; that the action is necessarily one...