Opinion by
The plaintiffs, husband and wife, brought la suit in assumpsit alleging a breach of warranty under the Sales Act of May 19, 1915, P. L. 543, 69 PS §124. The action had been previously tried and a verdict obtained by the wife plaintiff. During the cоurse of that trial a voluntary nonsuit was entered as to the husband. A new trial was granted on the ground that certain specific *518 findings of the jury were against the weight 'of the evidence.
The secоnd trial resulted likewise in a verdict for the wife plaintiff, Mrs. Barrett, and thereafter the defendant filed a motion for judgment n. o. v., which the court granted. Hence this appeal.
The facts adduсed at this second trial may be summarized as follows: Mrs. Barrett purchased from the defendant, for the sum of one dollar, a cotton dress, which she alleged contained poisonous dyе, from a rack with a sign thereon reading “Guaranteed fast colors.” Shortly ¡after the first time she wore 'this dress a severe skin irritation appeared on her body and arms diagnosed by the doсtors as acute dermatitis. This action was brought to recover damages for her injuries. The ¡medical testimony on behalf of the plaintiff respecting her physical condition was given by Drs. Clаrk1 and O’Malley.
The former, a clinical pathologist, saw the plaintiff during the course of her illness. He made “patch” tests on her skin and expressed the opinion that she had a type of allergy that reacts to an irritant. He attributed her skin affliction to the wearing of this dress, which contained “a substance which, when it was put into the solution ¡with water, whs extremely toxic to Mrs. Barrett, to the absorption in her skin.” Upon being asked by the court to explain what he meant by “toxic” he ¡said: “Extremely poisonous, producing the typical reaction and violently red area under the place where the cloth was adjusted to the skin surrounded by a larger area of inflammation that eventually extended up her entire arm.” Neither he nor any other witness statеd that the material ,in the dress would1' cause irritation to anyone other than Mrs. Barrett.
Dr. O’Malley expressed the opinion that the plaintiff’s physical condition was caused by a dye, but when аsked if he would say that .there was anything poisonous chemically in the dress, replied: “All I know is she had *519 this irritation.” The testimony adduced by the plaintiffs did not establish the presence of any speсific poisonous substance in the dress, which would harmfully affect any normal person.
The defendant called a number of witnesses including Dm Whitehead, a skin specialist, who testified that he madе tests of the material on four persons without any injurious reaction. He and Dr. Davis expressed the opinion that the dermatitis from which Mrs. Barrett suffered was due to her individual allergic nature. Dr. Jаggard, a chemist, stated that he subjected the material in the dress to chemical tests for impurities but he found no substance that would cause ¡imitation to the skin ¡of a normal person. It was shown that the defendant sold four thousand of these dresses and that it had no knowledge of anyone else experiencing any skin reaction to the wearing of them.
Section 15 of the Salеs Act of 1915, supra, provides in part as follows: “Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, pxceptt as follows: First. Where a buyer, expressly or by implication, makes known to the sеller the particular purpose fbr 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.”
The appellant asserts that under this prevision she is entitled to the benefit of an implied warranty ¡that this dress was reasonably suitable and safe to be worn by her. We have held this section applicable to sales of food and beverages intended for human consumption and she contends that by the same reasoning a warranty should be upheld as the wearing of this article of apparel affected her health. She relies chiefly on
Grant v. The Australian Knitting Mills, Ltd. et al.,
105 A.
*520
L. R. 1483;
Zirpola v. Adam Hat Stores,
(N. J.),
In /none of the food and beverage cases, however, was there proof that a plaintiff was peculiarly allergic to something (not harmful to others. In each there was the presence of a рoison or irritant that undoubtedly was intolerant and injurious to the average person. It is well known that some people are so .constituted ¡that they .cannot eat fish, strawberries, eggs, and many other foods that could be mentioned, without ill effects. . It can hardly be said that a vendor thereof would be liable for a breach of an implied .warranty ¡solely because of the harmful effect due to a 'buyer’s individual idiosyn-cracy.
In the ¡Grant case, which [had its origin in Australia, the plaintiff purchased from the 'defendant underwear containing free sulphite, which, combined with perspiration, forms a “powerful” irritant, harmful to normal skin. ¡The plaintiff brought ^uit to recover for injuries resulting from dermatitis caused by this wearing apparel. There was ,an express finding there thаt his skin was not ’ peculiarly sensitive but had been perfectly normal prior to the affliction of which he complained.
In the Zirpola case the ribbon and band used in a hat sold to the рlaintiff contained an aniline dye termed “paraphenylenediamine,” which caused his illness.! He produced expert testimony that showed this dye was of a poisonous nature, had bеen forbidden in New York and other states, and ¡that four to five per cent of ,all persons coming in contact with it would be injured to an appreciable extent. The court in the cоurse of its opinion stated that ¡it was ¡unnecessary to prove that all persons are susceptible to a particular poison and *521 that injury would be tbe inevitable result of the use оf an article in which dit was present.
In the Bianchi case it was shown that face powder contained two definite irritants, aniline dyes, which would not affect the average ¡person, but thаt it would be injurious to “some” whose skin is allergic thereto. It appears therein that the plaintiff was one of the latter class of persons indefinite as to numbers or percentagе. The defendant Was held liable for a breach of an implied warranty of fitness. The court, however, in the course of its opinion, ¡said p. f463: “The case does not call for 'a consideration of the possible legal consequences which may follow from the use of ¡such substances or products by a pers'on who may be said to be ‘allergic’ to ’them.” We do hot jconstrue those decisions as warranting a recovery in this case.
In
Ross v. Porteous, Mitchell & Braun Co.,
In
Flynn v. Bedell Co. of Massachusetts,
We do not conceive that the legislature intended under the Act of 1915, supra, that a retail vendor of wearing apparel obligates himself by an implied warranty that the merchandise he offers for salе, although harmless to practically all the public, does not contain any substance or ingredient that may injuriously affect some individual purchaser, who has a peculiar susceptibility unknown to the vendor. This, in effect, is appellant’s theory. If sound, it .would mean that many merchants have a far ¡reaching and possibly a ruinous liability, which they cannot anticipate or with reаsonable precaution avoid.
After giving (this interesting case ¡careful consideration it i's our unanimous opinion that the learned court below was correct in concluding that the еvidence offered did not ¡establish that the jdress purchased by the plaintiff was not reasonably fit for the purposes for which it was sold, and, therefore, there was no proof of a breach of the implied warranty.
Judgment affirmed.