Zampino v. Colgate-Palmolive Co.

• Decision Date: 12 April 1958
• Docket Number: COLGATE-PALMOLIVE
• Parties: Helen M. ZAMPINO and Michael Zampino, Plaintiffs v.CO., and F. W. Woolworth Co., Defendants.
• Court: New York Supreme Court

Page 117

173 N.Y.S.2d 117

10 Misc.2d 686

Helen M. ZAMPINO and Michael Zampino, Plaintiffs v. COLGATE-PALMOLIVE CO., and F. W. Woolworth Co., Defendants.

Supreme Court, Special Term, Montgomery County.

April 12, 1958.

Draper & Bartle, Troy (Edward M. Segal, Albany, of counsel), for plaintiffs.

Mackrell, Ranney & Rommel, Troy (Charles J. Ranney, Troy, of counsel), for defendants.

FELIX J. AULISI, Justice.

This action is for breach of warranty. Plaintiff Helen M. Zampino, on August 10, 1954, accompanied by her husband, co-plaintiff, Michael Zampino, entered the defendant's, F. W. Woolworth Department Store, in the City of Albany and said to a saleslady, 'I want to buy a good underarm deodorant; which one would you recommend for me to buy?' The answer was, 'Veto is the best'. Mrs. Zampino then looked at the counter which displayed the deodorant in question, picked up a jar of Veto which was still in its original package and handed it to the saleslady. Mrs. Zampino paid for the Veto and then left defendant's place of business.

The night, after she bathed, she applied the Veto under both arms. She testified that immediately after the application, the area over which she had applied the deodorant started to burn, with consequent eruption of small pimples and swelling. Prior to August 10, 1954, she had never used deodorants of any kind on her person.

At the end of the plaintiff's proof, the complaint was dismissed as to the defendant, Colgate-Palmolive Co., the manufacturer of said Veto.

The jury returned a verdict of $4,500 for plaintiff, Helen Zampino, for injuries suffered and one of $500 for co-plaintiff, Michael Zampino, for loss of services and medical expenses incurred.

Defendant now moves upon the court's minutes to set aside the verdict and a direction dismissing the complaint or granting a new trial.

Subdivision 1 of Section 96, Personal Property Law, states that 'Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not) there is an implied warranty that the goods shall be reasonably fit for such purpose'.

As the facts indicate, plaintiff did not state that she wished to have a jar of Veto. She did not make her own choice or exercise her own judgment in the selection of a particular underarm deodorant. There is no merit in defendant's contention that plaintiff could not have relied on defendant's skill and judgment because plaintiff herself picked up the jar of Veto from the counter. The weakness in that argument is that the plaintiff picked up that jar only after she was told that 'Veto is the best'. It was not plaintiff's judgment that compelled her to choose, but reliance on the defendant that made her do so. Nevertheless, any argument to the contrary notwithstanding, the existence or nonexistence of an implied warranty of fitness for a particular purpose depends upon whether the buyer relied upon his own judgment at the time of the purchase or relied on the skill or judgment of the seller, which is a question of fact to be determined by a jury (Rinaldi v. Mohican Co., 225 N.Y. 70, 121 N.E. 471).

Assuming, however, that there was insufficient evidence presented that plaintiff relied on the skill and judgment of the seller, and if plaintiff, as argued by the defendant, used her own judgment in selecting Veto, she may still rely on Subdivision 2 of Section 96, which says that 'Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality'. Prior to the Sales Act, the seller was not liable for food sold in sealed cans or its original package when it was known to the buyer that the seller had not prepared it, had not inspected it, and was ignorant of the contents of the article. The buyer's remedy was against the manufacturer and not the seller. However, this is no longer the law of this State. The Sales Act expressly refuses to distinguish between manufacturers, growers and dealers and it is clearly the law today that the dealer as well as the manufacturer or grower warrants anything he sells, if purchased by description, that it is of merchantable quality. The burden may be heavy, but it is one of the hazards of the business (Ryan v. Progressive Grocery Stores, 255 N.Y. 388, 175 N.E. 105, 74 A.L.R. 339; Kelvinator Sales Corporation v. Quabbin Imp. Co., Inc., 234 App.Div. 96, 254 N.Y.S. 123; Rinaldi v. Mohican Co., supra).

Defendant's argument that 'the fact that Veto cream deodorant did not...