Opinion
No. 33572.
February 13, 1939.
1. NEGLIGENCE. Sales.
In action against store owner for injuries received by buyer from poisonous substance in socks, evidence of connection between injury and existence of chalky substance in socks which clerk had assured buyer was not harmful was insufficient for jury.
2. NEGLIGENCE. Sales.
Retailer was not liable to buyer of socks for injuries received from poisonous substance in socks on theory of negligence or breach of express warranty predicated on salesman's statement that chalky substance thereon was not harmful in absence of showing of connection between existence of chalky substance and injury.
3. SALES.
To establish breach of an "express warranty," plaintiff must prove express warranty, consideration, scienter, inducement and reliance, breach of warranty and damage.
4. SALES.
In action for breach of express warranty, scienter may be shown by proof of actual knowledge of falsity of representations or that representation was made as of knowledge when defendant was without knowledge or should have known falsity of representation.
5. SALES.
As respects liability of retailer for breach of express warranty in sale of socks, it would be assumed in absence of proof to contrary that salesman's representations were made only in light of his experience in handling brand of socks in question.
6. SALES.
A retailer was not liable to customer for injuries received from poisonous substance in socks purchased from retailer for breach of express warranty predicated on salesman's statement that no harm could come from wearing socks where salesman made statement in good faith in light of experience in handling particular brand of socks, since statement did not amount to "express warranty" but was mere "dealer's talk."
APPEAL from circuit court of Harrison county; HON.W.A. WHITE, Judge.
Carl Marshall, of Gulfport, for appellant.
The evidence did no more than indicate that the socks irritated and inflamed the plaintiff's skin when they, moistened, were held in prolonged contact with it. There was no proof that they would be injurious if worn by others. In view of the undisputed medical testimony to the effect that some men are allergic to dyes, and dyed materials, so that they are compelled to wear white socks, as the plaintiff's physician advised him to do, and as he did; in consideration of the testimony of the manufacturer's chemist that the dyes and other materials used in the manufacture of the socks were harmless to normal persons; and in view of the undisputed proof of sales of a very large number of the same socks locally and elsewhere, without injury to, or complaint by, the purchasers and wearers, evidence of the plaintiff's individual reaction to the socks is not sufficient to support a jury's finding to the effect that the socks were defective in the sense that they would have developed unfavorable results when worn by average persons. There was no legally sufficient proof of that.
Bradt v. Holloway, 240 Mass. 446, 136 N.E. 254; Flynn v. Bedell Co. of Mass., 242 Mass. 450, 136 N.E. 252, 27 A.L.R. 1504.
If the cause of the injury be uncertain, resting solely upon conjecture, a directed verdict should be for the defendant.
I.C.R.R. Co. v. Humphries, 170 Miss. 840, 155 So. 421; I.C.R.R. Co. v. Fowler, 123 Miss. 826, 86 So. 460; C. G. Ry. Co. v. Cobbs, 156 Miss. 604, 126 So. 402.
The plaintiff has pitched his action entirely upon the theory of tort, charging negligence and false representations of fact, as a basis for recovery. He is held to his theory of action in his efforts at recovery.
Richards v. City Lbr. Co., 101 Miss. 678, 57 So. 977; Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Cone v. Virginia-Carolina Chemical Corp., 178 Miss. 816, 174 So. 554.
In the absence of statute, we believe that the law is unbrokenly to the effect that a retail seller of articles is not liable to a purchaser for an injury resulting to him through the use of the purchased articles, where the facts are those obtaining in the instant case.
Bellville Supply Co. v. Dacey, 141 Miss. 569, 106 So. 818; Orgill Bros. Co. v. Everett, 138 Miss. 213, 103 So. 82; Pate Auto Co. v. Westbrook Elevator Co., 142 Miss. 419, 107 So. 552; Noble v. Sears, Roebuck Co., 12 F. Supp. 181; 45 C.J. 890; 55 C.J. 138.
It would be a strange rule indeed that would entail liability upon retail merchants who purchased their goods from standard and successful manufacturers, and sold them without knowledge of defectiveness, and could not have discovered defectiveness by reasonable inspection, simply because they adopt the time-honored and universal custom of commending the goods to prospective purchasers, who also examine them, and alike with the merchants assume any risk of injury from latent defectiveness that might result from erroneous manufacture. Bidwell Adam, of Gulfport, and Chalmers Potter, of Jackson, for appellee.
Every necessary allegation to sustain a declaration of a breach of warranty is contained in the declaration and we, therefore, most respectfully submit that this case must now be judged not as an action for a tort but as an action for damages for the breach of an expressed warranty made in due course.
It is not always necessary to prove that the defendant actually knew the falsity of his representations; scienter being sufficiently proven by showing that the representation was made as of knowledge, when in fact the defendant was without knowledge upon the subject, or when, by reason of his position, he should have known the truth or falsity of the representation made. These qualifications do not form exceptions to the rule that scienter must be proven, but relate only to the manner in which it should be shown.
Vincent v. Corbitt, 94 Miss. 46, 47 So. 641, 21 L.R.A. (N.S.) 85; Lundy v. Hazlett, 147 Miss. 808, 112 So. 591; Dunn v. Dent, 169 Miss. 574, 153 So. 789; Nash Miss. Valley Motor Co. v. Childress, 156 Miss. 157, 125 So. 708.
We most respectfully submit that every element necessary to sustain a declaration based upon a suit for damages for the breach of an expressed warranty was alleged in the declaration and was proved undisputedly at the trial of this cause.
Although it was alleged in the declaration that the injury was caused by poisonous dye or substance used in the manufacture of the socks, although the witness for the plaintiff, the doctor, testified that in his opinion it was the sizing that caused plaintiff's damage and not the dye, the defendant nowhere offered any proof that the contents or substances used by the manufacturer in sizing its socks were not harmful. In addition thereto, it was shown without dispute and without contradiction that the socks caused the injury. It was further shown, without contradiction, that the plaintiff, a man 55 years of age, had worn colored socks all of his life and had never suffered any ill effects therefrom.
Can it be said that where a person has been wearing colored socks for all of his life and has never suffered any ill effects therefrom, that when he wears these particular socks he immediately suffers ill effects, that, in addition thereto, it was conclusively shown by the patch test that the socks caused these ill effects, that the jury would not have been warranted in finding from the evidence that the socks were at fault and the condition did not arise because of any allergic condition existing in the plaintiff.
Argued orally by Carl Marshall, for appellant, and by Chalmers Potter, for appellee.
This appeal is from a judgment of the circuit court of Harrison County awarding damages to appellee for personal injury alleged to have been caused by reason of some harmful or poisonous substance contained in a pair of socks purchased from appellant at its retail store in the City of Gulfport. The socks were purchased by the retailer from a reputable manufacturer, and were sold to appellee by a sales clerk in the store without knowledge that the same were either poisonous, or that they could not be worn by the purchaser without any harmful effect. After the socks had been worn one day, during which time it became necessary for the appellee to go into the water several times, his feet and ankles became irritated and inflamed. The fair import of the testimony of appellee's physician is that this condition was either caused by some harmful or poisonous substance contained in the dye of the socks or that it was due to an unusual or exaggerated natural sensitiveness of the skin to wearing colored socks. This question would have been for the determination of the jury if the testimony had otherwise established a prima facie case of liability under the legal principles applicable thereto, since the appellee testified that he had been able prior to that time to wear colored socks without any harm resulting therefrom; but that after consulting the physician he began wearing white ones.
During the negotiations leading up to the sale the appellee, while carefully examining the socks, noticed a chalky substance that could be felt by rubbing the fingers against the fabric. The attention of the salesman was called to this fact, and he thereupon assured appellee that the substance referred to was not harmful. He also assured him that the socks would not fade, and that no harm could come to him from wearing them; and also expressly represented that he knew they would give the purchaser satisfaction in every respect.
There was no testimony of sufficient probative value to present an issue for the jury or warrant a finding that there was any connection between the existence of the chalky substance on the socks and the injury complained of. Therefore, the appellant was neither guilty of negligence nor a breach of the alleged expressed warranty insofar as the assurances of the sales clerk on that point are concerned. The presence of this chalky substance, which was called to the attention of the sales clerk by the appellee, was mainly what prompted the conversation and the representations on the part of the clerk relative to whether the socks contained any harmful quality.
As to the representations in regard to the socks not fading, and also to the effect that the dye would not run, and that they were neither harmful nor poisonous, the proof discloses that in view of the enormous quantity of socks received from the same manufacturer and sold by appellant of like kind and character every year, many of which were handled in shipments of 140 dozen pairs through the same local store at Gulfport, and without complaint from the customers, the sales clerk had good reason to believe, and so far as the evidence in this case indicates anything to the contrary, he did honestly believe, that the pair of socks sold to appellee would likewise prove satisfactory. It is at least not shown that either the sales clerk or the employer knew anything to the contrary, or could have known the same by the exercise of reasonable care.
Appellee concedes that in order for the evidence to be sufficient to establish the breach of the alleged express warranty made by the sales clerk in this transaction, the plaintiff must prove: first, an express warranty; second, a consideration; third, scienter; fourth, inducement and reliance; fifth, the breach of warranty; and, sixth, the damage. Then, in support of his contention that the third and very vital element above mentioned was likewise present in the instant case, the rule announced in Vincent v. Corbett, 94 Miss. 46, 47 So. 641, 21 L.R.A. (N.S.) 85, and in other cases, is cited on the proposition that it is not always necessary to prove that the defendant actually knew the falsity of his representations; scienter being sufficiently proven by showing that the representation was made as of knowledge, when in fact the defendant was either without knowledge upon the subject, or when, by reason of his position, he should have known the truth or the falsity of the representation made. It must be assumed, however, in the case at bar that in the absence of proof that the sales clerk was a chemist or other technician, possessed of superior knowledge on the subject, that his representations and commendation of the merchandise were being made only in the light of his experience in handling this brand of socks. Except for that experience, the purchaser was in position to know as much as the sales clerk about whether the dye would fade and cause injury to the feet, and the only reasonable inference is that he was using what is commonly known as "dealer's talk" in endeavoring to make the sale, while acting in good faith in the light of his experience and observation in handling this particular brand of merchandise, not amounting to an express warranty under the rule hereinbefore cited and relied on by appellee as to the essential elements of an express warranty on the part of a seller other than the manufacturer.
Neither can legal liability of the appellant under the facts of this case be predicated upon the holding in J.C. Penney Company v. Morris, 173 Miss. 710, 163 So. 124. In that case it was shown that when the customer discovered that the heel on a shoe which was being purchased from the manager of the store was loose, and called the fact to the manager's attention, he assured and guaranteed the customer that the heel would not come off. However, the first time she wore the shoe she fell, after walking a few feet, and broke her ankle. Immediately, the detached shoe heel was found on the floor nearby. The suit was in tort and was based on the proven negligence of the manager under the circumstances above mentioned; whereas, in the present case, the only unusual condition about the socks to attract attention was the presence of the chalky substance thereon, which was not shown to be harmful in contradiction of any statement made by the sales clerk in regard thereto. Therefore, the decision in the Morris case can not be invoked in the instant case to sustain liability on the theory of negligence, nor do we think that a case on the breach of an express warranty is made by the proof, for the reason hereinbefore stated.
Reversed and judgment here for appellant.