90 S.E.2d 392 | N.C. | 1955
Mrs. Pearl HANRAHAN
v.
WALGREEN COMPANY, Inc.
Supreme Court of North Carolina.
*393 R. B. Templeton and W. H. Yarborough, Jr., Raleigh, for plaintiff, appellant.
Smith, Leach, Anderson & Dorsett, Raleigh, for defendant, appellee.
PARKER, Justice.
Webster's New International Dictionary, 2d Edition, defines cosmetic as "any external application intended to beautify and improve the complexion, skin, or hair." The plaintiff has no evidence to cause the hair rinse she purchased from defendant to be deemed adulterated, as set forth in G.S. § 106-136; or to cause it to be deemed misbranded, as set forth in G.S. § 106-137; or to cause it to be deemed false advertising, as set forth in G.S. § 106-138.
Plaintiff testified that the hair rinse she bought from defendant contained eight capsules, and she used all except three. Although three of these capsules were in her possession, she produced no analysis of them showing they contained any deleterious substance. Her physician testified that her condition was caused by some chemical contact, but he could not say what that chemical contact might be.
It would seem that the cause of plaintiff's dermatitis remains a matter of doubt and conjecture. It may be that she and her girl friend were allergic to the ingredients of this hair rinse. Although there are contrary decisions, it has been generally heldand it seems the sounder viewthat in an action by the buyer of a product against the seller for breach of warranty to recover damages for injuries resulting from the use of the product, there is no liability upon the seller, where the buyer was allergic or unusually susceptible to injury from the product, which fact was wholly unknown to the seller and peculiar to the buyer. Ross v. Porteous, Mitchell & Braun Co., 136 Me. 118, 3 A.2d 650; Franke's, Inc., v. Bennett, 201 Ark. 649, 146 S.W.2d 163; Stanton v. Sears Roebuck & Co., 312 Ill.App. 496, 38 N.E.2d 801; Worley v. Proctor & Gamble Mfg. Co., 241 Mo.App. 1114, 253 S.W.2d 532; Longo v. Touraine Stores, Inc., 319 Mass. 727, 66 N.E.2d 792; Flynn v. Bedell Co., 242 Mass. 450, 136 N.E. 252, 27 A.L.R. 1504; Barrett v. S. S. Kresge Co., 144 Pa.Super. 516, 19 A.2d 502; Bennett v. Pilot Products Co., Utah, 235 P.2d 525, 26 A.L.R. 2d 958; Griffiths v. Peter Conway Ltd. (1939) All Eng. 685C. A.; Annotation 26 A.L.R. 2d 963 et seq. See also: Lippard v. Johnson, 215 N.C. 384, 1 S.E.2d 889, as to allergy. Contrary decisions: Zirpola v. Adam Hat Stores, 122 N.J.L. 21, 4 A.2d 73; Reynolds v. Sun Ray Drug Co., 135 N.J.L. 475, 52 A.2d 666.
It may be that there was a poisonous substance in the hair rinse, but there is no evidence to support such a conjecture.
We cannot resort to a choice of possibilities: that is guess work, not decision. See Mills v. Moore, 219 N.C. 25, 30, 12 S.E.2d 661.
The plaintiff relies principally upon Bianchi v. Denholm & McKay Co., 302 Mass. 469, 19 N.E.2d 697, 121 A.L.R. 460. The facts are different from the case here. In that case there was evidence that the face powder contained two aniline dyes, and that these dyes caused plaintiff's dermatitis.
There is no evidence that plaintiff or her girl friend were or were not persons whose skins were only normally sensitive to infection or irritation. We need not inquire in the case at bar, whether or not there is any assumption that a human being is a normal one, and if there is such an assumption, whether it is merely the drawing of a permissible, though not a *394 compulsory inference of fact, or whether or not it rises to the dignity of a presumption, or even to prima facie evidence, for there is no evidence here that the hair rinse contained any poisonous or deleterious ingredient to a normal person who used it. See: Payne v. R. H. White Co., 314 Mass. 63, 49 N.E.2d 425.
We conclude that there is a total absence of proof of any damage to plaintiff proximately resulting from breach of warranty. See: Mauney v. Luzier's, Inc., 215 N.C. 673, 2 S.E.2d 888; Lippard v. Johnson, supra.
The judgment below is
Affirmed.