Section 402A of the American Law Institute's Restatement of the Law of Torts (2d Ed.), hereinafter referred to as the Torts Restatement, reads as follows:
Insofar as foodstuffs for human consumption are concerned, this section states the law as followed in Texas. Decker & Sons v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942). We are further of the opinion that as a logical proposition, the rule stated in Decker should be held applicable to defective products which cause physical harm to persons. As pointed out by the concurring justice in the Court of Civil Appeals, no sound distinction can be drawn between the use of an eye-wash solution that impairs or destroys vision and a foodstuff which causes illness. (408 S.W.2d 124, 1. c. 128).
In Comment (a) under Section 402A of the Torts Restatement, it is said:
In Decker, this court said:
There is an extensive literature concerning the history and nature of the so-called rule of strict liability. Concededly, the doctrine is one of comparatively recent and rapid development. We need not here reiterate its history. Cited in the margin are those authorities and treatises deemed most important and persuasive in bringing the doctrine to its present status.
The rules above stated control the disposition of this case. The product involved is a permanent wave preparation known as "Zotos Lanolin Bath". L.A.McKisson brought suit against Sales Affiliates, Inc., the distributor
The Zotos preparation was not reasonably fit for the purpose of giving permanent waves; Ellen McKisson was damaged as a result of using such product for a permanent wave; the use of the product was the proximate cause of the damages sustained by Ellen McKisson; Sales Affiliates, Inc. failed to provide adequate directions for the use of Zotos preparation; such failure was negligence; such negligence was the proximate cause of Mrs. Kisson's injuries; Zotos preparation should not be applied to bleached hair; a reasonably prudent beauty operator in the exercise of ordinary care would have known that the wave lotion should not be applied to bleached hair; the application of the Zotos preparation to Ellen McKisson's hair was negligent; such negligence was a proximate cause of the damages sustained by Mrs. Kisson; and $1,000.00 would fairly and reasonably compensate the plaintiff, L. A. McKisson for the injuries sustained by his wife in using the Zotos preparation. The trial court rendered judgment for the plaintiff upon the jury's findings. The Court of Civil Appeals reversed and rendered judgment that plaintiff take nothing. 408 S.W.2d 124.
Quite often, the extension of common law doctrines is left to the court of last resort by intermediate courts and the action of the Court of Civil Appeals in the present case is in accordance with similar actions taken by other appellate courts.
Only three witnesses testified at the trial, Mrs. Ellen McKisson, her husband, the plaintiff, L. A. McKisson, and Theodore P. Pritsker, a chemical engineer, called as a witness by the plaintiff. The defendant called no witnesses.
Mrs. McKisson testified that she was 52 years of age and the owner of a beauty shop and gift shop; that she was not, however, a licensed beauty operator; that on February 3, 1965, her hair had been bleached by using a lightener and peroxide; that in February 1965, a salesman gave her a sample of Zotos Lanolin Bath; that this preparation remained in the same condition from February until she attempted to use it on April 13, 1965; that on the last date mentioned, she requested one of her employees to give her a permanent using the Zotos preparation consisting of a hair conditioner and a neutralizer; that the lotion container carried a label which said, "Zotos Lanolin Bath, lanolized waving lotion, formula No. 1, for normal or resistant hair, follow accompanying directions. Zotos, Division of Sales Affiliates, Inc., Distributor"; that no directions accompanied the sample; that her hair was normal, that is, her hair was good and strong, had not been misused or abused, was of good texture and "in very good condition"; that she considered that her hair was "normal"; that she would not classify her hair as resistant but considered that she had normal hair on April 13, 1965, although it had been bleached in February; that although she was not a licensed operator, she knew that ordinarily a different formula was used for bleached hair than for unbleached hair and that most preparations which were not suitable for bleached hair contained as part of the label a clear statement, "Do not use on bleached hair", or some similar statement.
She further testified that the operator first made a test curl which was apparently satisfactory; that her hair was then rinsed and put up on rollers and then treated with the permanent wave lotion; that after the lotion had been applied, the curl was tested until it reached the "right stage of curl", and then the neutralizer was applied; that when this was done, "about the time we got down to almost to the base of my neck back here, well, the top part all started falling off, hair, rollers, and everything"; that her employee immediately starting pouring water on her hair to wash out the lotion, but although the hair on the side of the head did not fall out, all the hair on the top, the crown of her head, was gone; that by morning, her eyes were swollen shut and it took 30 to 40 minutes with hot applications to get her eyes open; that she suffered severely from the burns and swelling on her face and scalp for about four days and some of the pain persisted for ten days.
Mr. McKisson corroborated his wife's testimony as to her personal injuries, burns, swellings, etc.
In our opinion, the plaintiff made our a case of strict liability in tort. For advertising purposes, the product was delivered to plaintiff's wife in sealed or closed containers with the expectation that it would be used by her either upon her own hair or that of one of the patrons of the beauty shop. One who delivers an advertising sample to another with the expectation of profiting therefrom through future sales is in the same position as one who sells the product. The jury found that the Zotos preparation was not reasonably fit for the use of giving permanent waves and that Mrs. McKisson's attempted use of the product was the proximate cause of her injuries. The evidence above discussed supports this finding. When it is shown that the product involved comes in a sealed container, it is inferable that the product reached the consumer without substantial change in the condition in which it was sold. See, e. g., Kroger Co. v. Bowman, Ky., 411 S.W.2d 339 (1967); Shoshone Bottling Co. v. Dolinski, Nev., 420 P.2d 855 (1966). It appears that nothing was done with the curling preparation which would change its properties or characteristics after it was delivered to Mrs. McKisson.
The jury also found that the defendant failed to provide adequate directions for the use of the preparation. While this issue may form the basis of liability founded upon negligence, it also has a bearing upon whether or not Mrs. McKisson made a proper use of the lotion. If the chemicals in the lotion became separated so that one portion of the contents of the container contained more thioglycolic acid than it should and in effect became a depilatory, as suggested by the testimony of the chemical engineer, the label gave no warning of the possibility or probability of such occurrence, nor did the label state that the preparation should be shaken before using or that it was unfit for bleached hair. The only warning set forth on the label, if such it may be called, was the statement that the formula was for normal or resistant hair. No other instructions accompanied the product.
The plaintiff's petition set forth two bases for recovery, namely, negligence and strict liability. Although Mrs. McKisson was not a beauty operator, we will assume that because of her ownership of the business and close connection with its operations, she would be charged with a standard of care measured by the conduct of a reasonably prudent beauty operator. Based upon such assumption, we may conclude that the jury's finding upon the contributory negligence issue would bar a recovery based upon negligence. It does not, however,
The defendant contends that the Zotos Formula No. 1 carried a label which stated that it was for normal or resistant hair;
The judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed.
GRIFFIN, J., dissenting.
I dissent from the holding that contributory negligence is not a defense to this action for the reasons I have set out fully in my dissent filed to the majority opinion in Shamrock Fuel & Oil Sales Co. v. Tunks et al., Tex., 416 S.W.2d 779.
Negligence was defined as meaning the failure to use ordinary care.
Question (d) was a proximate cause issue to be answered if the negligence issue was answered in the affirmative.