Bronson v. J. L. Hudson Co.

135 N.W.2d 388, 376 Mich. 98, 1965 Mich. LEXIS 199

• Court: Michigan Supreme Court
• Decided: June 7, 1965
• Docket: Calendar 6 and 7, Docket 50,630 and 50,631
• Status: Published

Opinions

Smith, J.

These actions were brought originally by husband and wife against defendant retailer to recover for injury and damages allegedly caused by chemical irritants in a ladies undergarment, a cotton slip, purchased and worn by plaintiff-wife and charged to the account of her husband.¹ It is claimed that immediately upon wearing the garment, plaintiff-wife began to suffer severe dermatitis, with attendant pain, disfigurement, and emotional stress. The emotional stress is alleged to have triggered a heart attack. At the close of plaintiffs’ proofs, defendant moved for a directed verdict which the trial court granted.

Plaintiffs’ proofs showed that Mrs. Berke purchased the white cotton slip from defendant December 8, 1959. She wore it the next day, new and without prior washing. Other clothes worn at the time were said to be the same as were constantly worn. Breakfast consumed that morning was an “ordinary” one consisting of orange juice, coffee and toast. Mrs.. Berke made a visit to a friend’s home that day and upon the return trip, riding on a bus, she felt something like pinpricks upon her back. She started to itch and. by evening her skin had broken out into a rash and her eyes and tongue had swollen markedly. A doctor was summoned. He observed the itching, swelling, and also noted Mrs. Berke’s complaint of chest pains. He diagnosed the ailment as severe dermatitis and prescribed treatment. Another doctor, an allergist, testified that the wearing of such a cotton garment containing an irritant “could cause a severe dermatitis condition.” Mrs. Berke testified that she had never experienced such a rash before, nor had she ever been treated for any kind of an allergy. Her regular treating physician outlined her medical history from 1943, forward. No indication of rash, dermatitis, or allergy appeared in her history. Several weeks after the onset of illness, plaintiff-husband returned the slip to defendant and made a complaint giving details of the purchase and claimed injury.

Upon the record made, was defendant entitled to a directed verdict? In Weisenberg v. Village of Beulah, 352 Mich 172, 184, this Court said: “that the testimony and all legitimate inferences that may be drawn therefrom must be viewed in the light most favorable to the plaintiff in determining whether he has established a prima facie case when weighed against defendant’s motion for a peremptory verdict in his favor at the close of plaintiff’s proofs.”

In the instant case, there was no competent direct proof of what specific irritant, if any, was present in the slip cloth. Upon favorable view, did the facts, along with legitimate inferences to be drawn therefrom, constitute a prima facie case sufficient in law to prevail against defendant’s motion for directed verdict? More specifically, was there evidence from which it might he legitimately inferred that an irritant was present in the cloth at time of purchase, which irritant was a proximate cause of injury?

We are aware that in the typical products-liability case, plaintiff’s counsel is usually able to produce some direct proof of defect and causal relationship between that proof and injury. Here, the trial court found no competent direct evidence and, without detailing what was presented, we agree. However, we are moved to disagree with the trial court’s direction of verdict at the close of plaintiffs’ proofs. We cannot say that reasonable minds could not differ as to what might be legitimately inferred therefrom, so that we find it error to have concluded, as a matter of law, that plaintiff did not establish a prima facie case. Our opinion is that under the circumstances, upon favorable view, a legitimate inference from plaintiffs’ proofs was that an irritant was present in the cloth, which irritant caused Mrs. Berke’s injury. In this regard, the case does not differ from some food poisoning cases: you eat and you get sick and what made you sick was something in the food. What the poison was may be impossible to identify. In this case, the favorable view of plaintiffs’ proofs is that the new, unwashed slip (that is unchanged from time of purchase) bought and immediately worn close to the body with a nearly immediate skin reaction contained an irritant which caused Mrs. Berke’s dermatitis. Defense proofs may well explode the inference, but standing alone it is neither fanciful nor conjectural. Add to the hypothesis, of course, plaintiffs’ other proofs: clothes worn that day (other than the slip) were ones usually worn; diet and habits on the day in question were usual and ordinary; no previous history of rash, dermatitis, or allergy. Upon such proofs, the reasonable mind could legitimately infer that the one new element in Mrs. Berke’s life at that time, the new slip, was directly linked with her injury. The reasonable mind now demands explanation. This is the task of defendant.

In view of the disposition above, we find it unnecessary to discuss the issue of spoliation of evidence. We add that under the facts so far adduced, we would find no error in the judge’s ruling.

Reversed and remanded. Costs to appellants.

T. M. Kavanagi-i, C. J., and Souris and Adams, JJ., concurred with Smith, J. Black, J., concurred in result.

1 Sara Berke, plaintiff-wife, died September 3, 1962. December 4, 1962, Dorothy Bronson, administratrix of the estate of Sara Berke, was substituted as party-plaintiff. Trial was commenced on March 25, 1963.