Worley v. Procter & Gamble Mfg. Co.

• Decision Date: 16 December 1952
• Docket Number: No. 28355,28355
• Citation: 241 Mo.App. 1114,253 S.W.2d 532
• Parties: WORLEY v. PROCTER & GAMBLE MFG. CO.
• Court: Missouri Court of Appeals

Page 532

253 S.W.2d 532

241 Mo.App. 1114

WORLEY v. PROCTER & GAMBLE MFG. CO.

No. 28355.

St. Louis Court of Appeals, Missouri.

Dec. 16, 1952.

Motion for Rehearing or for Transfer to Supreme Court Denied

Jan. 16, 1953.

M. C. Matthes, Joseph G. Stewart, Hillsboro, for appellant.

Samuel Richeson, Richeson & Carr, Potosi, for respondent.

ANDERSON, Judge.

This is an action to recover damages for personal injury brought by Carrie Worley, as plaintiff, against defendant, Procter and Gamble Manufacturing Company, a corporation. The trial resulted in a verdict and judgment in favor of plaintiff in the sum of $500. Defendant has appealed from said judgment.

Plaintiff and her husband, Richard Worley, were proprietors of a restaurant in Potosi, Missouri, known as 'Dick and Carrie's'. Plaintiff worked in said restaurant her duties consisting of waiting upon customers, preparing and cooking food, mopping the floor, and washing dishes. In washing dishes plaintiff used a washing powder known as 'Tide', manufactured by the defendant and purchased from local retail merchants for use in the restaurant. After using this preparation for quite some time plaintiff experienced a breaking out on her hands which spread to her arms, causing her to be disabled. The object of the suit was to recover damages on account of this disability.

The petition counted on a breach of warranty, alleging that 'the said preparation was manufactured by the defendant for use in washing dishes, and was sold by said defendant and warranted by it to be fit and safe for use for such purpose.' It was further alleged that the said preparation contained an ingredient which rendered said 'Tide' unfit and unsafe for use for dishwashing purposes. The petition further alleged that plaintiff, not knowing of the presence of said ingredient in the said preparation proceeded to use said preparation in washing dishes, and that as a direct result of such use a violent rash broke out over plaintiff's entire body which continued from February 1, 1950, for a period of more than two months, rendering plaintiff sick and causing her to suffer intense pain and to lose her earnings for a long period of time. The prayer of the petition was for damages in the sum of $3,000. The defendant's answer, after admitting that plaintiff was a resident of Washington County, and that the cause of action accrued in said county, denied all other allegations of the petition.

Plaintiff testified that she and Mrs. Florence King did most of the dishwashing in the restaurant, and that during February, 1950, Tide was used. The Tide used was purchased from either a retail dealer named Pleezing, or from Schramm Grocery Company, in Flat River. It was delivered to the restaurant in case lots. Each case contained either twenty-four or forty-eight packages. The cases were made of cardboard sealed with glue. About the first of February, 1950, a case was received at the restaurant. It was sealed when received and did not show any evidence of having been tampered with or opened. The boxes within the case were all sealed. None had been opened.

On the outside of each box of Tide appeared considerable printed matter extolling the virtues of Tide, referring to it as the 'new washing miracle' and, in connection with dishwashing, after setting forth its superior qualities, the following representation appears: 'And, of course, Tide is kind to hands, too.'

Through answers to interrogatories addressed to the defendant, it was established that 'Tide contains the synthetic detergents--sodium alkyl sulfate and sodium alkyl benzene sulfonate--and builders--sodium phosphate and sodium silicate. It also contains a small amount of moisture, some neutral sodium sulfate, and traces of perfume and minor ingredients.'

In January, 1950, or the latter part of December, 1949, plaintiff experienced an itching on the back of her hands, then a breaking out which spread up to her shoulder on the inside of both arms. It extended to no other portion of her body.

Plaintiff further testified that she may have been using Tide, both in the restaurant and at home, for some six months before the breaking out on her hands occurred. While working in the restaurant her hands were quite often in dishwater containing Tide. When asked, how often, plaintiff replied: 'It was just according to how heavy our business was. We did not have any certain time to start washing dishes. We kept our dishes washed up. If there was just two chili bowls or so on, we would wash them right then. * * * I just couldn't tell you for sure, but just any time we had dirty dishes or cleaning to do, we had our hands in it continuously. * * * Sometimes I would say every five minutes we would have our hands in Tide water.' It further appears from plaintiff's testimony that Tide had been used with that frequency from three to six months before she noticed the skin eruption. The dishes and the counter rags were washed in the same water. Plaintiff also used a bleach and disinfectant, Purex, in the rinse water. After the dishes were washed in the Tide water they would be rinsed in a basin of Purex water. Plaintiff had used Purex for five years. In the course of her work plaintiff's hands came in contact with various kinds of foods, and meats, including beef, pork, and hamburger.

Plaintiff continued using Tide until the latter part of March when she consulted Dr. Conrad, a skin specialist in St. Louis. Dr. Conrad prescribed ointments, salve and a lotion for her hands and arms. Plaintiff wore bandages on her arms. After consulting Dr. Conrad plaintiff discontinued using Tide. Plaintiff testified that she quit going to Dr. Conrad in April, 1950. She stated: 'I got a supply of his ointment and salve and used that up until--well, sometime up in the summer. It completely healed and once in a while it will break out and itch, and I would use more of the salve and drive it away.' Plaintiff stated that the last time she noticed any breaking out and itching was the latter part of 1950. She testified:

'Q. In April, 1950, it cleared up? A. Yes, not completely, but enough I didn't want to spend any more money going to the specialist. * * * I continued on the job there, but shouldn't have.'

Mrs. Florence King, who also worked in the restaurant and who did the same kind of work as that done by plaintiff, testified that about a week after she noticed the rash on plaintiff's hands and arms, a similar rash appeared on her own hands, which rash was still present at the time of the trial.

Joel Russell, Lytle Paul, and Fred Harris testified that they were in the Worley restaurant during the early part of 1950 and observed sores on the back of plaintiff's hands. Jack Long testified he ate at the restaurant three or four times a week. He saw sores on Mrs. King's hands, but did not observe any on Mrs. Worley's hands.

Plaintiff's evidence as to the condition of her hands and arms was corroborated by the testimony of her husband.

Dr. G. F. Cresswell testified that he treated Mrs. Worley during February and March, 1950. He stated that she had a rash on her hands and arms, 'a red, raised rash, irregular spots, some of them large, some of them were small, mostly on the back of her hands and arms.' He stated that he did not remember if there was 'oozing' from the rash, but suspected that there was. He testified that he treated plaintiff about a week or ten days, or perhaps two weeks. In answer to a hypothetical question, the doctor stated:

'A. When I saw her--I saw her after I did Mrs. King--in my opinion, the rash was caused by the washing powder, the detergent, they were using and I so told them that it was, that it was my opinion that it was, and recommended discontinuing the use of it.'

Appellant assigns as error the refusal of the trial court to direct a verdict in its favor for the reason that plaintiff failed to allege and prove facts showing privity of contract between the parties.

Where a consumer elects to sue for a breach of warranty the great majority of courts have held that there is no cause of action if the parties are not in privity. 1 Williston, Sales, (3rd Ed.), sec. 244; Finks v. Viking Refrigerators, 235 Mo.App. 679, 147 S.W.2d 124; Pearl v. William Filene's Sons Co., 317 Mass. 529, 58 N.E.2d 825; Poplar v. Hochschild, Kohn & Co., 180 Md. 389, 24 A.2d 783; Turner v. Edison Storage Battery Co., 248 N.Y. 73, 161 N.E. 423; Degouveia v. H. D. Lee Mercantile Co., 231 Mo.App. 447, 100 S.W.2d 336. There are exceptions to this rule. These exceptions exist in the case of foods, beverages, and drugs. Taking into consideration the nature of the product, its mode of sale, and the probable harm resulting from latent defects, most courts have imposed absolute liability on the manufacturer for damages for injuries resulting from the use of such defective articles. Madouros v. Kansas City Coca-Cola Bottling Co., 230 Mo.App. 275, 90 S.W.2d 445; Beyer v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 75 S.W.2d 642; McNicholas v. Continental Baking Co., Mo.App., 112 S.W.2d 849; Carter v. St. Louis Dairy Co., Mo.App., 139 S.W.2d 1025; Foley v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 215 S.W.2d 314; Helms v. General Baking Co Mo.App., 164 S.W.2d 150; Klein v. Duchess Sandwich Co., 14 Cal.2d 272, 93 P.2d 799; Hertzler v. Manshum, 228 Mich. 416, 200 N.W. 155; Ward Baking Co. v. Trizzino, 27 Ohio App. 475, 161 N.E. 557; Davis v. Van Camp Packing Co., 189 Iowa 775, 176 N.W. 382, 17 A.L.R. 649; Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633, 48 L.R.A.,N.S., 213; Tomlinson v. Armour & Co., 75 N.J.L. 748, 70 A. 314, 19 L.R.A.,N.S., 923. The exception has also been extended to the purchase of other articles likely to produce physical injury if improperly manufactured or which contain elements injurious to health. Baxter v. Ford Motor Co., 168 Wash. 456, 12 P.2d 409, 15 P.2d 1118, 88 A.L.R. 521; Simpson v. American Oil Co., 217 N.C. 542, 8 S.E.2d 813; Dow Drug Co. v. Nieman, ...