Appeal from the Circuit Court of Cook County; the Hon. HARRY
G. HERSHENSON, Judge, presiding. Affirmed in part and reversed
and remanded in part.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 13, 1964.
This is an appeal from a judgment on jury verdicts of not guilty.
Beatrice Hardman, both individually and as Guardian of the Estate of Susan Hardman, a minor, sued to recover for burns and bodily injuries alleged to have been incurred as a result of the use of a hair conditioning product manufactured and marketed by defendant under the name of Lanolin Discovery. A Second Amended Complaint was filed at the conclusion of plaintiff's proof, adding to the negligence counts, two counts based on an implied warranty and two on an express warranty. These latter four counts were taken from the jury.
Plaintiff purchased two cans of Lanolin Discovery in Iowa which bore a direction "Use after shampoos for snarl-free combing and 2 or 3 times a week to keep hair naturally beautiful." There was no warning of flammability on the can. On the morning of March 11, 1957, plaintiff used the product on the hair of Susan who was six years, nine months old. At noon, another Hardman daughter, Peggy, applied some more of it to Susan's hair.
Plaintiff's witnesses testified that Susan was seen in the early evening spraying Lanolin Discovery on her hair and the upper part of her cotton gingham dress, using the preparation as a perfume. A fourteen-year-old daughter, Sharon, testified that thereafter she saw Susan carrying a candle in front of her and heard a puff; after which she saw Susan afire on the upper part of her dress and in her hair; called her mother, and that they attempted to smother the fire and tore off the burning dress; that later a four-inch piece of candle was found on the floor.
Plaintiff testified that on hearing screams she ran into the dining room and found that Susan's hair and dress were afire; that she extinguished the fire in the hair and dress with her hands, and with the help of her children tore the dress off, which was burning above the waist. Plaintiff and her daughter, Peggy, stated in their testimony that Susan's hair and ears were burned and that the bottom of the dress was not burned.
Plaintiff's doctor who examined Susan at the hospital following the accident testified that the hair was singed slightly and that there was no burn on the scalp; that the burned area was on the chest from about three finger-widths below her collarbone to about three finger-widths below the navel and extending to a line at the back of the armpit; that the burns also covered the front of both arms, the undersurface of the chin and front of the neck and the front of the right thigh midway between the knee and hip.
Two attorneys testified on behalf of plaintiff that they had seen the dress and that the upper portion was burned but not the lower portion; that the dress was delivered to a testing laboratory prior to April 1958, but had been destroyed when the offices of the laboratory were remodeled in 1961. A can (Ex. 11) was identified by another daughter, Margaret Davis, aged twenty, as the can involved in the occurrence. There was testimony that another can (not Exhibit 11) was delivered to an Iowa attorney who sent it to the same testing laboratory in April 1958. No laboratory tests of either the dress or the can were submitted at the trial.
It is undisputed that Lanolin Discovery contained 5% alcohol and 88.2% freons, the latter being nonflammable fire-extinguishing propellants. Defendant acknowledges that no tests of flammability were performed on Lanolin Discovery. Its proof showed, however, that prior tests on hair sprays with 20% alcohol and 80% propellant content revealed that those products were not flammable and were in accord with existing regulations and it contends, therefore, that tests on Lanolin Discovery with only 5% flammable alcohol and 88.2% freons were unnecessary.
In 1959, when Susan was a little over nine years old, her discovery deposition was taken. No objection was made by plaintiff's attorney to her competency.
SHA, Ch 110, § 101.19-9, Supreme Court Rule 19-9, provides in section (3)(a) thereof:
Grounds of objection to the competency of the deponent or admissibility of testimony which might have been corrected if presented during the taking of the deposition are waived by failure to make them at that time. . . .
The objection was raised at the trial but the court properly held that he could not then inquire into conditions which existed two years before and that the objection to the taking of the deposition had been waived.
At the trial, when she was almost eleven, Susan was first called to the witness stand by the defendant as an adverse witness. Her competency to testify at this time was conceded after a qualifying examination. In response to almost all of defendant's interrogation concerning the occurrence in question she answered: "I don't remember." When the questions and answers from her deposition were propounded, she admitted that questions were asked and her answers given as read. A summary of these discloses that at the deposition she stated that at the time of the occurrence she was wearing a cotton dress, a cotton undershirt, cotton pants and cotton socks; that after she watched television she went into her mother's bedroom and sprayed some hair spray on the front and back of her hair and might have sprayed the back of herself; that she lit a birthday candle with matches; that she held it in her hand and it melted; that the candle burned her fingers and it dropped on her dress and landed on the bottom of the dress and started to burn; that the bottom of the dress burned first.
During her examination under section 60 at the trial in answer to the question "Do you remember what it was that caused your skirt and dress to catch on fire?" she testified that it was a candle and that she got it from a buffet. On questioning by her own attorney as to what she recalled about the fire she said that she didn't remember whether, when she got burned, the top or bottom of her dress first started to burn. However, she testified that she did remember that she was lighting the candle "to see a light; a light in the ceiling; a little circle on the ceiling." In answer to the question "How do you do that?" she replied: "You hold it up and then you can see it."
Plaintiff contends that the use of questions and answers from the deposition was improper. Rule 19-10 of the Supreme Court (SHA, ch 110, § 101.19-10) permits the use of a discovery deposition "as an admission made by a party. . . ." However, plaintiff raises the question as to whether this applies to the deposition of a nine-year-old, relying on Knights Templars & Masons Life Indemnity Co. v. Crayton, 209 Ill. 550 *fn1 where the court stated at page 563, 70 N.E. 1066:
It may be further suggested that by mere admission infants are not bound. They can neither make them nor authorize any other person to make them for them.
On the same page, preceding the above statement, the court said:
This court has never held that the depositions taken at a coroner's inquest were competent evidence in such cases, . . . but the depositions, which are mere ex parte statements, would seem, upon principle, to be incompetent for any purpose other than contradiction.
Therefore it is obvious that the admissions in the Knights Templars case were excluded primarily because they were a part of the depositions taken at a coroner's inquest and it was the depositions as such which were sought to be introduced into evidence.
Plaintiff next cites Severns v. Broffey, 155 Ill. App. 10, in which the court excluded the admissions of a party previously adjudged non compos mentis on the authority of the Knights Templars case, supra.
Plaintiff cites Reed v. Kabureck, 229 Ill. App. 36, as authority for the proposition that admissions cannot be made by persons under fourteen years of age.
In that case a seventeen-year-old defendant was sued for assaulting with a gun and negligently shooting the plaintiff who lost an eye as a result of the incident. In passing on the admissibility of admissions ...