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Gibbs v. Procter & Gamble Mfg. Co.

SEPTEMBER 11, 1964.

HELEN GIBBS, PLAINTIFF-APPELLEE,

v.

THE PROCTER & GAMBLE MANUFACTURING COMPANY, A CORPORATION, DEFENDANT-APPELLANT, AND THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, DEFENDANT.



Appeal from the Circuit Court of the Third Judicial Circuit, Madison County, Alton Branch; the Hon. I.H. STREEPER, III, Judge, presiding. Judgment reversed.

WRIGHT, JUSTICE.

Rehearing denied October 5, 1964.

This is a suit by plaintiff, Helen Gibbs, to recover damages from defendant, The Procter & Gamble Manufacturing Co., a Corporation, for injuries plaintiff alleges she received as a result of using the washing product "Cheer." Plaintiff alleges that this product was negligently manufactured by defendant and defendant did not make proper inspection and testing of its product. The jury returned a verdict in favor of the plaintiff against the defendant, The Procter & Gamble Manufacturing Co., a Corporation, for $6,500, on which the court entered judgment, from which judgment defendant appeals.

Plaintiff also sued the Great Atlantic and Pacific Tea Company, from whom the Cheer was purchased, on a breach of warranty theory. The jury returned a verdict against the plaintiff on that claim and the court entered judgment thereon in favor of the defendant, The Great Atlantic and Pacific Tea Company, from which judgment plaintiff has not appealed.

The plaintiff was 58 years of age at the time of trial and had been in the restaurant business for about eighteen years in Collinsville, Wood River and Alton, Illinois. She first opened a restaurant in Alton in 1956. The restaurant had room in the front for approximately thirty to thirty-five people, had a kitchen in the rear and plaintiff and her husband lived upstairs above the restaurant.

Plaintiff did most of the work in connection with operating the restaurant in Alton from 1956 until January of 1961. In connection with the operation of the restaurant, plaintiff did all of the buying and cooking. She peeled potatoes, apples, oranges and onions and other fresh vegetables and prepared all of the meat for cooking. She did all of the cleaning and waxed the linoleum floors when they required it. She also in connection with the operation of the restaurant washed dishes, pots and pans.

The plaintiff started using powdered Cheer as a washing product in the restaurant in 1956 and continued to use it regularly until the first week in February, 1960. During the same period of time, she used Charles Antell Shampoo about once each week to wash her hair and used Palmolive Soap for toilet and bathing purposes.

During the first week in February 1960, she began having difficulty with the skin of her hands. The area affected was principally the back of her right hand, the left hand being affected to a lesser degree. The affected areas were chapped, red and itched. She stated that she had never had any difficulty with her hands before this time.

Plaintiff went to see Dr. Raymond Simpson, a dermatologist in Alton, Illinois, for the first time on February 12, 1960, about her hands. He gave her an injection, lotion to use on her hands and medication, and advised her to use rubber gloves over cotton gloves when she immersed her hands in water. Plaintiff was suspicious of Cheer being the cause of her skin condition and from the first time she saw Dr. Simpson, she discontinued using the product Cheer and never used it thereafter, and began using a soap called Vel.

Plaintiff's hands cleared up after the first visit to the doctor, and she did not keep an appointment she had made with him for February 19, 1960, because the condition of her hands were improved. On March 11, 1960, she had a flare-up of the condition of her hands and went back to see Dr. Simpson. She had not used the product Cheer before this flare-up, and in fact, never used that product again after February 12, 1960. She had shampooed her hair with Charles Antell Shampoo several times between February 12, and March 11, 1960, and the shampoo did cause her some irritation when she was using it.

Dr. Simpson testified that he first saw plaintiff on February 12, 1960, and that her primary complaint at that time consisted of an acute dermatitis of the hands and forearms and scattered areas about the shoulder and neck. He further testified that he did not see plaintiff again until March 11, 1960, and at that time she had had a flare-up involving the same essential areas. He saw here again on March 18, 1960, when she was greatly improved and did not see her again until January 27, 1961. He stated that she then had acute dermatitis involving the right hand which was characterized by redness, swelling and oozing from the irritated areas. He saw her twenty-five times during 1961, eleven times during 1962, and last saw her in February, 1963. The doctor further stated that his first diagnosis of plaintiff's case was acute contact dermatitis, and after her return in 1961, he continued to give her ointments, medication and gave her medicine to help nervous tension because emotional tension could be a factor in continuing the dermatitis. He further stated that during that time he would have called her condition a chronic localized form of neuro-dermatitis and not contact dermatitis.

Dr. Simpson after describing the ingredients in Cheer was asked the following question: "Now, the condition that you found in Helen Gibbs, doctor, when you first saw her and during the course of her subsequent treatment by you, might that, within a reasonable degree of medical certainty and scientific certainty, might that be caused by the product that I have just listed?" The doctor answered in the affirmative and then explained his anwer in the following manner: "From the appearance of the eruptions I think she had, in my opinion, she had a contact dermatitis which means I felt it was something that had gotten on her skin which had produced the irritation, something from the outside that was the origin of her trouble. The fact that she had been working with detergents, according to my record, I thought that was a very likely possibility. . ." The doctor further testified that there are many substances to which Mrs. Gibbs would be exposed in the operation of a restaurant which could produce irritations sufficient to cause the type of skin eruptions she had. Peeling certain fruits and vegetables, substances used in cleaning toilet facilities or unplugging stopped drains, articles of clothing, reaction to drugs and that sort of thing all could cause skin eruptions of the type he observed on Mrs. Gibbs. The doctor's working diagnosis was that her skin did not tolerate detergents, without reference to any particular brand of detergent. There is nothing about the product Cheer that would make her more suspectable to that product than to any other washing or detergent product made by the same company or a different company, in the opinion of Dr. Simpson.

Dr. Edward Burkhart testified that he examined the plaintiff, Helen Gibbs, at the request of the defendant on September 6, 1962, and determined that Mrs. Gibbs had a dermatitis of her right hand, a small amount of dermatitis of the left hand, a dermatitis of the right thumb and a dermatitis under the left breast. He stated that this type of skin condition could be precipitated by many and varied chemical irritants, everything from water, possible soaps, fruit, vegetables, fruit and fruit juices, dyes found in food, cosmetics, multiple cleaning agents, bleaches, waxes and polishes, and further stated that in his opinion there were no soaps or detergents that were the direct or primary cause of plaintiff's dermatitis.

Defendant's witnesses were familiar with the product, Cheer, the ingredients that went into it and the method of manufacturing it. It was established that the defendant has been in the business of making soaps and detergents since 1939 and that the defendant company produces roughly 50% of all household washing and cleaning products that are sold in this country. Defendant's evidence was to the effect that Cheer is manufactured in a continuous manufacturing process, with continuous checks and inspections to insure that the product is produced ...


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