317 Mass. 529 | Mass. | 1945
This is an action of contract or tort in which the plaintiff seeks to recover consequential damages resulting from personal injuries sustained by his wife, which, as alleged in the first count of the declaration, resulted from a breach of warranty in the sale by the defendant of a permanent wave set to her, and, as alleged in the second count, arose because of fraud and deceit of the defendant which induced her to purchase the set. The plaintiff excepted to the granting of a motion that a verdict be ordered for the defendant.
There was evidence that the plaintiff’s wife, after witnessing a demonstration of a permanent hair wave set, took off her hat, showed her hair to the defendant’s clerk, informed him that her hair had been bleached for a number of years, and inquired if the set could be safely used on her hair. He replied that the set could be used on any kind of hair whether dyed or bleached, and that it was perfectly safe and harmless. She then purchased arid paid for the set. When she removed the curlers after using the set, her hair broke off where they had been applied, leaving it only two or three inches long. She had before this occurrence bleached her hair every five or six weeks for ten or twelve years and had oil shampoos ¿very week to offset the effect of the bleaching rinses in order to prevent her hair from becoming brittle. She received no medical treatment as a result of using the set but continued to receive the same treatments from her hairdresser as she had received for years, with the addition of certain treatments known as a mange cure to stimulate the growth of her hair. The wife gjave notice to the defendant of a breach of warranty, brought an action for breach of warranty and for deceit, and recovered a judgment on the count for breach of warranty. The plaintiff does not contend that the money used for the purchase of the set was his money or money furnished by him for this purpose. Neither did he introduce any evidence that he had given any notice of breach of warranty to the defendant.
The plaintiff could not recover upon the first count for breach of warranty arising from the sale of the set to his wife. She and not he was the buyer. There was no con
If he cannot recover in contract, then he contends that he can recover in an action for deceit. It is true that one may sue in tort as well as in contract for a false warranty. Schuler v. Union News Co. 295 Mass. 350. That principle does not aid the plaintiff, because there can be no breach of warranty where there is no privity of contract. It was assumed in Cutter v. Hamlen, 147 Mass. 471, and settled in Roberts v. Anheuser Busch Brewing Association, 211 Mass. 449, that a husband could recover in an action of tort for damages sustained by him on account of the illness of his wife and children resulting from false representations made to him, which in the first case induced him to hire a tenement containing an unsanitary plumbing system and in the second case to purchase a bottle of a malt preparation which was unwholesome and unfit to drink. The representations in those cases were made to the husband, but in the instant case they were made to the wife who was acting in her own behalf and not as agent of her husband. He does not and could not on this record contend
The plaintiff did not furnish any medical care to his wife. Her injury, which seems to have been confined entirely to her hair, did not call for any medical, treatment. The only item of expense that he incurred was the cost of the mange cure treatments. They were presumably furnished at his expense or upon his credit by a hairdresser who charged him for the treatments. Driscoll v. Gaffey, 207 Mass. 102. Kenyon v. Vogel, 250 Mass. 341.
A plaintiff in an action oí tort for deceit is not entitled to nominal damages merely by proving that the defendant had perpetrated a fraud upon him, but in order to prevail he must prove the extent of the injury that was caused by the defendant’s fraud. Brackett v. Perry, 201 Mass. 502. Connelly v. Bartlett, 286 Mass. 311. McCarthy v. Brockton National Bank, 314 Mass. 318. The extent of the injury for which a plaintiff seeks compensation must be proved with a fair degree of certainty. The nature of the injury may be such that it is difficult to prove the various elements that comprised the damage which resulted therefrom. Compensation for pain and suffering, for instance, cannot be proved with mathematical precision, and a jury in awarding compensation have the right to consider the evidence in the light of their knowledge of practical affairs, their common experience, and their sound judgment. Cross
Exceptions overruled.