Zimmerman v. Auerbach

FOLLAND, J. This is an action by plaintiff for personal injuries to her hair and head alleged to have been caused by the negligence of defendant’s employee in giving her hair a permanent wave. From a judgment for plaintiff, defendant appeals and assigns error in the refusal of the trial court to admit certain offered evidence and in instructing the jury. The negligence charged in the complaint is that “plaintiff employed defendant, * * * to treat her hair and scalp in such a manner and by the use and application of such electrical contrivances and appliances as to result in giving to her hair a permanent wave; that defendant entered upon the performance of such employment, but carelessly, negligently and unskillfully applied said electrical appliances to the hair and scalp of plaintiff, said appliances being then and there under the operation and control of defendant, his agents and employees, in such manner as to severely burn plaintiff’s scalp and hair, and to cause an overbaking thereof to the extent of causing plaintiff’s head to become blistered and her hair to fall off and come out. * * *” Defendant by answer admitted the employment, but denied the negligence charged. Plaintiff testified in substance that before being given the permanent wave her hair was examined by the operator, who asked her whether she had ever used anything on her hair, to which she answered, “Yes, I have used some peroxide on the back.” The operator stated she would not take the responsibility of determining what sort of a permanent wave best suited her hair, and called Mr. Auerbach, who, after examination, said her hair would “take any wave we have got.” The operator then proceeded to give her hair a *556 Duart wave, and handed plaintiff a watch, with instruction to advise the operator at the end of five minutes after the electric current was applied. After one and one-half or two minutes plaintiff complained of pain and that her head was being burned and the operator said “You will have to stand a little heat.” Plaintiff again complained of burning but that the operator did not turn off the electric current until the expiration of the five minutes. After the electrical appliances were removed, the hair was discolored, streaked, sticky, and brittle, and came off by touching. In order to present a respectable appearance, the plaintiff was compelled to have her hair cut and to wear a wig until it grew out again; that as a result of the treatment plaintiff’s scalp was blistered and she became sick and suffered physical pain, mental distress, and anguish. There is a sharp conflict in some phases of the evidence. Defendant’s operator testified that she asked plaintiff if she had anything on her hair, and that plaintiff said, “No”; that she (the operator) could not tell from inspection whether dyes or peroxide had been used, and, while she had some doubt about it, when plaintiff told her she had not used anything on her hair, she went ahead with the treatment as for natural hair. After a shampoo, the hair was blocked, a liquid chemical solution applied, the Duart machine placed on the head and heat applied ; that the plaintiff made no complaint about the heat or the burning of her hair, and that after an application of the electrical energy for five minutes the current was turned off; that, when the curlers were taken off, the hair was sticky and streaky, having been overbaked or oversteamed; that she then called Mr. Auerbach, who asked Mrs. Zimmerman what she had used on her hair, and plaintiff answered: “I have had something on my hair but it was quite a while ago but I did not think it was necessary to mention it.” Plaintiff’s hair was then cut, and she left the beauty salon wearing a wig supplied by defendant. The operator said she had examined plaintiff’s scalp; that it was dry and sticky, but not burned. The defendant testified that he did *557 not see or examine plaintiff’s hair before the treatment, but was called to look at it after treatment; that her hair was overbaked, causing it to fall off close to the scalp, and that this was the result of using the wrong solution; that the machine was well taken care of and examined every day, and used on other patrons the same day and succeeding days with the same solution without injuries to them. The evidence indicated that the Duart wave which defendant’s operator attempted to apply to plaintiff’s hair is given by use of a Duart permanent waving machine. The machine is composed of a dome heater, a number of element curlers, bamboo strips, and pads; that a strand of hair is wrapped tightly around the element curler, over which is wrapped a pad which has been dipped in the secret chemical solution prepared by the Duart Company for use in connection with its machine. The dome is then placed over the head and heat applied by means of electric current. One secret chemical solution is prepared for use on hair which had previously been treated with dyes, bleaching agencies, or restoratives. The Duart Company supplies both solutions. For natural hair the heat is applied from three to five minutes, and on dyed or bleached hair only from two and one-half to three minutes. The operator testified she applied the solution appropriate for natural hair, and also applied the heat for the length of time usually given natural hair. Error is assigned to the refusal of the court to permit the operator who treated plaintiff’s hair to answer the following questions after she had stated she had used the same machine and the same solution on other patrons the same day: “Q. Did any result occur to those other patrons that occurred to Mrs. Zimmerman? “Q. You may state whether or not the wave given to those patrons was a satisfactory wave? “Q. You may state whether or not the hair of those patrons was injured or destroyed in any way?” *558 Similar questions were asked with reference to the use of the machine the next day with the same solution and application of heat for the same length of time. Counsel for defendant stated his offer of proof was as to the use of the same machine, the same solution applied to “hair upon which no restoratives or dyes or peroxide had been used.” The objection to the evidence was that it was incompetent, irrelevant, and immaterial. The purpose as stated by counsel for defendant at the trial was to show “that this machine was in perfect working condition,” that “the solution was the proper solution,” and that the “application of the heat was the ordinary and customary time of the application of heat.” There is no allegation by plaintiff that the electric machine was not in perfect working condition, nor that its use would not produce the desired effect if used with ordinary The negligence alleged in the complaint is that defendant “carelessly, negligently and unskillfully applied said electrical appliances to the hair and scalp of plaintiff,” resulting in the burning of her hair and injury to her scalp. This is an allegation in general terms which, while not to be commended, is sufficient, in the absence of attack by special demurrer, to permit the introduction of evidence as to the specific acts of negligence relied on. Freedman v. Denhalter Bottling Co., 54 Utah 513, 182 P. 843. The evidence shows that the injury was caused by the use of the wrong chemical solution and the application of heat for a longer time than appropriate for hair which had been treated with a bleaching solution. The treatment given was that ordinarily given to natural hair. It was admitted by the evidence on both sides that plaintiff’s hair had been treated and was not what is called natural hair. By the evidence the issue was narrowed to the question whether plaintiff had told the defendant that she had used peroxide on her hair. Plaintiff testified that she had used peroxide and that she informed the defendant of the fact before the *559 electric apparatus was applied to her hair. Defendant’s testimony was to the effect that plaintiff was asked if she had used dyes, restoratives, or tonics, but that she said she had not, and that she was then given the treatment applicable to natural hair. This issue was submitted to the jury by appropriate instruction. In view of the pleadings and the evidence that plaintiff’s hair had been treated by bleaching solutions, no relevant purpose would be served by attempting to prove the result of use of the same apparatus with the same solution with heat applied for the same length of time on natural hair. Where the evidence of similar occurrences is material and relevant, it must be shown that all the essential physical conditions of the two occasions were identical. 22 C. J. 751. No offer was made to show the use of this machine on other hair in the same condition as plaintiff’s. Appellant urged that the testimony was admissible under the rule stated in 45 C. J. § 801 (a), p. 1238, which reads in part as follows: “In view of the presumption of the persistence of conditions of a continuing nature once shown to exist, evidence of the condition of a place, property, or appliance at or from which an injury for which damages are sought is alleged to have occurred, within a reasonable time prior to such injury, is admissible in a proper case to show the character or condition of such place, property, or appliance at the time of the injury, or to show notice of such condition to the person charged.” The cases cited in appellant’s brief are to similar effect. It seems to us obvious that this rule is not applicable to the circumstances of this case, since no question is raised as to the perfect working condition of the machine, but only to the application or use of the machine and treatment as applied to plaintiff’s hair. In any event, the proffered testimony was merely cumulative and its exclusion not prejudicial, since the defendant had himself testified without objection that the machine had been used *560 ori other patrons, without bad effect, and this testimony was not disputed or contradicted. His testimony is as follows : “Q. Is there anything wrong with that machine in any way? A. No. “Q. Was it kept right in use and applied to other people? A. That is well taken care of to-day. Those machines are looked over every day and examined every day. All the equipment is examined daily. “Q. Was the same kind of solution which had been used upon Mrs. Zimmerman used upon other people that day and the following day in your establishment? A. Aboslutely. “Q. And did any such result occur to any of the other patrons on that day or the following day that occurred to Mrs. Zimmerman? A. No, sir. “Q. When you used that machine and the same solution? A. No, sir.” The instruction complained of is that in which the trial court instructed the jury “if the defendant did possess the skill which ordinarily characterizes his specialty, and carelessly and negligently failed to exercise it in this case, in the treatment of plaintiff’s hair, and plaintiff’s hair was injured, and that such carelessness was the proximate cause of injury to plaintiff,” she would be entitled to recover. It is contended that this instruction leaves it open to the jury to speculate with respect to how the injury occurred and to consider matters outside of the issues, in that it submits to the jury carelessness “in the treatment of plaintiff’s hair,” whereas such carelessness should be confined to the application of the electrical appliances to plaintiff’s hair. This is too technical a refinement to warrant a reversal of the judgment. While some of defendant’s requests for instructions, refused by the court, might well have been given, yet the charge to the jury fairly and adequately covered the defendant’s theory of the case. The judgment is affirmed, with costs to respondent. CHERRY, C. J., and EPHRAIM HANSON, J., concur.