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Traylor v. the Fair

OCTOBER 7, 1968.




Appeal from the Municipal Court of Chicago, First Municipal District of the Circuit Court of Cook County; the Hon. JOHN J. SULLIVAN, Judge, presiding. Affirmed.


Rehearing denied November 26, 1968.

The defendants, The Fair, a corporation, and Warren A. Miller, Inc., a corporation, appeal from the jury verdict and judgment entered in the First Municipal District of the Circuit Court of Cook County for the plaintiff, Eleanor Traylor, in the amount of Six Thousand Dollars ($6,000), and against both defendants, seeking judgment n.o.v. or, in the alternative, a new trial.

Plaintiff's complaint charged the defendants "undertook to wave and set the hair of the plaintiff but did so in a careless and negligent manner." No specific charge of negligence was pleaded. The defendants denied the material allegations of the complaint.

Plaintiff, age 42, a medical secretary, on April 11, 1959, went to the defendant's store for a permanent. She had been patronizing the establishment for a year. An operator identified by the plaintiff as "Gerry," who had never worked on her hair before or since, washed the hair and combed it out. Then the hair was rolled and a "solution" was applied which remained on the hair for about half an hour during which time the operator was not present. On past occasions, the plaintiff testified the "solution" remained on for ten or fifteen minutes. She noticed a "burning" as the solution was being applied, called the operator's attention to it, and a "salve" was put on her forehead and hairline. While the solution was on the hair, the plaintiff noticed a "tingling, burning sensation." The rest of the procedure was uneventful.

That night the plaintiff noticed a seepage from her scalp into her eyes and onto her pillow. Two days following the occurrence she was seen by Dr. Albert G. Weiss, one of her employers. During the course of treatment, she noticed that her hair was falling out, and her hair remains thin to the present time. She testified to her prior excellent health and denied any prior history of hair or scalp disease. She also saw Dr. Zakon, a dermatologist, who did not testify at trial.

Dr. Weiss, although not a dermatologist, did testify. He said that when he first saw the plaintiff, she related a history of a permanent two days before and he "treated her for chemical burn." Treatment continued through September of 1959, at which time he expressed the opinion that the condition of reddened and tender skin was permanent. He was not asked a direct question as to causal relationship between the application of the solution and the condition of ill-being.

On cross-examination, the doctor admitted he did not take any patch tests to determine sensitivity because he did not know what the solution was that had been used and could not tell whether it was capable of burning without knowing what it was. He testified, without objection, that other patients had told him of permanent waves causing burns. Additionally, the following appears in the record:

Mr. Skryd: Q. "Your diagnosis seems to be based on what the patient tells you. It could be an allergic reaction, as far as you know, if you don't know the chemical makeup of the product?"

A. "When the patient relates that while a cold permanent solution was being applied to her she noticed, at that time, a burning in her scalp — to me this is sufficient information to conclude that the solution created a chemical burn of scalp."

Leonard Weber, M.D., a dermatologist, testified for the defendants. He examined the plaintiff and found evidence of seborrheic dermatitis, but no evidence of burn. He said permanent wave solution could not cause seborrheic dermatitis, that he was generally familiar with permanent wave solutions and that they contained no irritants. On cross-examination, however, he admitted that such solution could cause some transient redness of the skin in some patients. He could not testify as to the particular solution applied to the plaintiff's hair and scalp.

Defendants offered no testimony as to the facts of the occurrence, but did offer an investigator who testified as to his efforts to locate the former employee.

The defendants urge three principal points in their appeal: First, the court erred in failing to direct a verdict because of the total failure of the plaintiff to prove actionable negligence. Second, the court improperly permitted the plaintiff to apply the doctrine of res ipsa loquitur and instructed the jury thereon. And thirdly the verdict of the jury was against the manifest weight of the evidence.

As to the first point, they argue that plaintiff's proof was fatally defective in that she offered no evidence that the permanent wave solution produced the injury complained of. In support of this proposition, they cite Gibbs v. Procter & Gamble Mfg. Co., 51 Ill. App.2d 469, 201 N.E.2d 473 (1964); Tiffin v. Great Atlantic & Pacific Tea Co., 18 Ill.2d 48, 162 N.E.2d 406 (1959); Bowman v. Woodway Stores, 345 Ill. 110, 177 N.E. 127 (1931); Watts v. Bacon & Van Buskirk Glass Co., 18 Ill.2d 226, 163 ...

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