The plaintiff contends that there was error in directing a verdict for the defendant on her third count and also on the first count upon leave reserved. The first count, in substance, alleges that the plaintiff bought a dress from the defendant, which impliedly warranted that it was reasonably fit to be worn, but that it was not, for the reason that it contained a certain poisonous dye or other substance which poisoned her body. The third count alleges that the purpose of the purchase was made known to the defendant and that, in the selection of the dress, the plaintiff relied upon the skill and judgment of the defendant, which impliedly warranted that the dress was of merchantable quality and free from defects, but that it was not.
It could have been found that the plaintiff went to the defendant’s store with her sister, where she examined a number of dresses hanging on a rack, but found nothing that she was looking for. One of the defendant’s clerks then asked her what she was seeking and was informed that she
The plaintiff wore the dress for about two hours on the next day, which was Christmas. On New Year’s Eve she wore it for about five hours. On New Year’s Day she wore it while attending a moving picture performance. In the theatre she kept on her fur coat for a while and was conscious that she perspired more or less. Other articles of clothing that she had on had been worn by her for a considerable period, with the exception of a slip, which did not come in direct contact with any portion of her body. Before she left the theatre, she began to experience an occasional itching on her back and neck. The dress was described as covering her back and neck and as having a “V” neck and sleeves extending to the elbow. When she reached her home, the itching sensation had increased. She then took off her clothes and washed herself with soap and water, but did not use any new soap. She used a wash cloth and observed that in washing her neck and the upper part of her back, there was a pink color on the wash cloth that was the same shade of pink as appeared in the dress. She washed the affected areas several times, using soap and water at first, and then witch hazel. There was a pinkish discoloration on her neck
The dress in question was “delustered” rayon, that is, a rayon from which the luster had been taken so as to make it look like wool or cotton. The plaintiff had worn colored rayon dresses before. There was medical testimony that the plaintiff’s skin disclosed a definite dermatitis, which stopped at a straight line across the chest at exactly the level or height to which the underclothes came that the plaintiff was wearing; that the plaintiff’s physical examination was negative, except for the skin; that contact dermatitis is classified in the allergy group of disturbances which are not due to anything taken in or inhaled, but are due to something with which the skin comes in contact, and that in the opinion of the witness the cause of the plaintiff’s dermatitis was the dress that she purchased.
The defendant contends that, upon this evidence, the sale was made to the plaintiff’s sister and that, as a consequence, the contract not having been made with the plaintiff, she cannot recover. See Gearing v. Berkson, 223 Mass. 257, 260. We are of opinion, however, that this contention cannot be maintained. Up to the time the sales slip was
The record discloses no direct evidence that the dress in question contained any poisonous dye, or anything else that would injure the skin, and the defendant contends that the case at bar comes within the case of Bradt v. Hollaway, 242 Mass. 446. In that case it was said that the record failed to disclose a case of external poisoning that was due to some noxious substance in the dyed fur which the plaintiff alleged was the cause of the condition of her skin. In that case there was no analysis of the dye, and the plaintiff’s physician testified that her skin was so hypersensitive that it reacted unduly to irritation of any sort, and that, in his opinion, the plaintiff’s inflammation was due to the length of the fur. In that case there was no evidence that the dye came off the fur or that it “crocked.” In the case at bar, however, there was evidence of a pink discoloration on the plaintiff’s body where the dress had come in contact with it. When the plaintiff washed, there was the same shade of pink on the wash cloth that appeared in the dress. It could have been found that the plaintiff had never before had any skin ailments, and that, apart from the dermatitis, her physical examination was negative. There was evidence that the dress in question was the cause of her “contact” dermatitis. The case at bar, in this respect, is more like Flynn v. Bedell Co. of Massachusetts, 242 Mass. 450, 454. We think the inference was warranted that the dress in question was the cause of the plaintiff’s dermatitis. Barringer v. Ocean Steamship Co. of Savannah, 240 Mass. 405, 408. Johnson v. Kanavos, 296 Mass. 373, 375-376. Flynn v. Growers Outlet, Inc. 307 Mass. 373, 376, 377. Compare Monahan v. Economy Grocery Stores Corp. 282 Mass. 548, 550.
Although there was evidence that contact dermatitis is classified in the “allergy” group of disturbances, the record discloses nothing as to what is meant by this. It is consist
It appears from the record that the declaration originally consisted of two counts, the first being as already described, and the second being for negligence. The plaintiff has not contended that the directed verdict on the second count was not ordered properly.
The third c'ount, to which reference has been made, was added by amendment, and it seems apparent that it is drawn with the end in view of stating a case under G. L. (Ter. Ed.) c. 106, § 17 (1), although the allegation is that the defendant impliedly warranted that the dress was of merchantable quality and free from defects. As we read the plaintiff’s first count, it amounts to an allegation of an implied warranty of fitness, without any allegations as to the purpose of the purchase being made known to the defendant, or of any reliance of the plaintiff upon the skill and judgment of the defendant. We think there was no error in directing a verdict on this count, the allegations of which, in our opinion, do not state any case under the provisions of G. L. (Ter. Ed.) c. 106.
General Laws (Ter. Ed.) c. 106, § 17 (1) provides as follows: “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.”
The adoption of the uniform sales act was not merely a codification of the existing rules regarding sales in this Commonwealth. It was a design, so far as possible, to make our law uniform with that of other States which should adopt acts containing corresponding provisions. The title of the
It is unnecessary to trace the development of the law in its relation to manufacturers and growers, or to cases where
The case at bar is one in which, by common consent of the parties, the subject matter of the sale was something not inherently dangerous, and of which the plaintiff certainly had an opportunity to make an examination. We think, however, that it cannot be contended that a reasonable or practicable examination of the dress by the plaintiff, would or could have disclosed that it contained something that ought not to have been in it, that is, something that caused the plaintiff’s injuries. Said § 17 (1) contains two vital requirements: (1) that the buyer, expressly or by implication makes known to the seller the particular purpose for which the goods are required, and (2) that it appears that the buyer relies on the seller’s skill or judgment. There can be no doubt under our decisions that in the case at bar it could have been found that the plaintiff established the first requirement. Holt v. Mann, 294 Mass. 21, 23, 24, and cases cited. The vital question, as we view it, is whether it could have been found that she established the second requirement. We are of opinion that the evidence, as to what took place between the plaintiff and the defendant’s clerk, in and of itself, does not establish reliance, apart from what is hereinafter said. It is true that it could be found that the clerk selected the dress which the plaintiff tried on and purchased. But we think that the fair import of this testimony is that in the last analysis it was the plaintiff who made the decision, and that it was she who made the selection.
The case of Farrell v. Manhattan Market Co. 198 Mass. 271, was an action of tort for negligence in the sale of food, and the declaration alleged that there was an implied war
In Ward v. Great Atlantic & Pacific Tea Co. 231 Mass. 90, it was said that the statement of the law in the Farrell case, “which is but an amplification so far as relates to the case at bar, of the terms of the sales act, governs the facts . . . presented [in the Ward case].” In that familiar case, the plaintiff purchased, at the defendant’s store, a can of baked beans. The plaintiff, while eating the beans, broke his tooth on a small pebble of which he had no knowledge, that was in the can. It was not expressly stated in the agreed facts that the defendant selected the can for delivery to the plaintiff, or that the latter relied on the skill and judgment of the defendant in selecting the can for delivery, but it was said: “But that he did so rely seems an almost irresistible inference from the facts stated. The cans in the defendant’s stock were all alike in label and in general appearance. The cans were sealed. Their contents could not in the nature of things be open to inspection before the sale. There could be no intelligent selection based upon any observation by the purchaser. There is no room for the exercise of individual sagacity in picking out a particular can. The customer at a retail store is ordinarily bound to rely upon the skill and experience of the seller in determining the kind of canned goods which he will purchase, unless he demands goods of a definite brand or trade name. The situation is quite different from the choice of a fowl or a piece of meat from a
A few years after the Ward case was decided, there came the case of Flynn v. Bedell Co. of Massachusetts, 242 Mass. 450. In that case, already referred to, there was a sale at retail to the plaintiff of a brown velours coat which had a fur collar. The action was contract or tort, and the question considered was whether there was an implied warranty of .fitness under said § 17 (1). The plaintiff’s injuries, a skin disease, evidently were found by the jury to be due to poisonous or noxious substances transmitted from the dyed fur collar. It was held that the case was rightly left to the jury on the question of implied warranty. Among other thiugs, it was said: “The element of ‘fitness’ was bound up. with the question of whether the fur was dyed, and possibly contained latent defects dangerous to the wearer. It was from this that the injury to her ultimately flowed. . . . Notwithstanding that the plaintiff participated to some extent in the selection of the garment, we cannot say that there was no evidence to warrant a jury in finding that she bought in reliance upon the seller’s skill and judgment that the fur in the collar was natural rather than dyed, and safe rather than unsafe; and that the seller was reasonably apprised of that fact.” (Page 453.) It is true that there was evidence in that case that the plaintiff inquired of the clerk as to the kind of fur, and that she was told that it was not
The case of Rinaldi v. Mohican Co. 225 N. Y. 70, was one of a sale of pork that was infested with trichinae. The plaintiff ate it and was made ill, and it was held that she could recover for breach of implied warranty of fitness. One question submitted to the jury was whether she could have found the defect in the meat if she had used reasonable care. In considering the question whether the plaintiff had a right to rely upon the skill and judgment of the defendant, it was said that the court did not lay stress on the question whether the article was selected by the buyer or the seller; that this might or might not be important; and that if the buyer selected one chicken from twenty offered him, exercising his judgment as to its “wholesomeness,” clearly he might not rely upon the dealer’s skill. “But where the buyer selects one of the twenty for some reason unconnected with its fitness for food and exercising and having no judgment on that question — makes the selection because the color is pleasing or the weight suitable, then he is relying upon the dealer no less than when the selection is made by the latter. He assumes that the dealer knows and has the means of knowing that all are fit for food. It is a matter about which ordinarily the purchaser knows and can know nothing.” (Page 74.) In Grant v. Australian Knitting Mills, Ltd. [1936] A. C. 85, the plaintiff purchased woolen underwear from a retailer and con
In Rinaldi v. Mohican Co. 225 N. Y. 70, the question whether an inference of reliance would be drawn upon a sale in the original package as bought by the vendor from others was left open. In Ryan v. Progressive Grocery Stores, Inc. 255 N. Y. 388, 391, this question, however, was considered, and it was pointed out that under the provisions of the sales act in the case of a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose. See Botti v. Venice Grocery Co. 309 Mass. 450, 453, 454. In the Botti case, the question now under consideration did not arise directly. See Rogiers v. Gilchrist Co., ante, 544.
Obviously the case at bar, on the facts, is different from the Flynn case. Here there is no such evidence by way of inquiry as appeared in that case, and the question is squarely presented whether the plaintiff, by implication, had a right to rely upon the expectation that she would not be sold a dress that contained some deleterious substance, not observable or discoverable upon reasonable examination by her, which would cause her injuries.
We think it may be assumed that the defendant did not intend to sell and that the plaintiff did not intend to pur
Accordingly, we are of opinion that the exception to the directed verdict on the first count must be overruled, but that the exception to the direction of a verdict on the third count must be sustained.
So ordered.