Carpenter v. Alberto-Culver Co.

28 Mich. App. 399 (1970) 184 N.W.2d 547

CARPENTER
v.
ALBERTO CULVER CO.

Docket No. 7,039.

Michigan Court of Appeals.

Decided December 3, 1970.

Wisti, Jaaskelainen & Bourland, for plaintiff.

Humphrey & Weis, for defendant Alberto Culver Company.

Messner, LaBine & Vairo, for defendants Gardner and Janis.

Before: FITZGERALD, P.J., and McGREGOR and O'HARA,^[*] JJ.

PER CURIAM.

This is a damage suit brought against the above named defendants, arising from personal injuries claimed to have been caused by a hair-dyeing product manufactured by defendant Alberto Culver Company, and sold to plaintiff by defendants Gardner and Janis, doing business as City Drug Store. After a jury trial in circuit court, a verdict of no cause of action was found and judgment was entered accordingly. Plaintiff's suit charged negligence and breaches of implied and express warranties. The trial judge refused to submit the count of express warranty to the jury, and from this, plaintiff appeals.

This Court confines itself to the question of any express warranty made by the City Drug Store; since plaintiff makes no argument as to the liability of defendant, Alberto Culver Company, this issue is deemed to be abandoned.

Plaintiff entered defendants' drugstore with the intention of purchasing a hair dye; while she was viewing the various hair-dyeing products, of which there were more than 20, she was offered assistance by one of the sales clerks in the store. Plaintiff claims the clerk indicated that several of her friends had used the hair-dyeing product in question, and that her own hair came out "very nice" and "very natural." Plaintiff also testified that the clerk told her she "would get very fine results." This Court notes that evidence establishes that both the package containing the solution and the bottle had cautionary instructions^[1] regarding the product.

Plaintiff claims that no instructions were enclosed and that she called the store for such instructions. She did not inquire in regard to taking a preliminary test (commonly known as a "patch" test), as she was admittedly familiar with the necessity for so doing. Plaintiff contends that she performed such a patch test and alleges that there was no adverse reaction prior to the product's use. Plaintiff ultimately used the product and suffered an adverse skin reaction.

Testimony was introduced at trial which indicated that plaintiff had, on at least one previous occasion, used a hair coloring product (although not this one) and had also suffered an adverse reaction to it. No mention was made to the sales clerk at the time of the purchase concerning this previous adverse reaction, or at the time the plaintiff called the drug-store.

In determining whether a statement of the seller is to be deemed a warranty, it is important to consider whether in the statement the seller assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the seller has no special knowledge and on which the buyer may be expected also to have an opinion and to exercise his judgment. Representations which merely express the seller's opinion, belief, judgment, or estimate do not constitute a warranty. 67 ALR2d 619, § 2, p 625.

In the instant case, from all the factual evidence, we cannot agree that such statements made by the retail seller^[2] can be considered that of express warranty for use by this plaintiff. From the context in which such statements were made, coupled with the cautionary instructions printed on both the bottle and the box, warning against possible adverse reaction, nothing more existed than an implied warranty that the product was reasonably fit for use as a hair dye. 2 Frumer & Friedman, Products Liability, § 16.04[4]; Anno: 67 ALR2d 619; Anno: 17 ALR3d 1010; Olin Mathieson Chemical Corp. v. Moushon (1968), 93 Ill App 2d 280 (235 NE2d 263); See Hayes Construction Co. v. Silverthorn (1955), 343 Mich. 421; but see also Graham v. Jordan Marsh Co. (1946), 319 Mass 690 (67 NE2d 404); Kaufman v. Katz (1959), 356 Mich. 354. Plaintiff did not present sufficient evidence from which a jury could have inferred an express warranty and a breach thereof.

Plaintiff's next contention of error concerns the erroneous admission into evidence of a deposition, inasmuch as such deposition was allegedly taken without reasonable notice to plaintiff's attorneys, who were unable to cross-examine the deponent. GCR 1963, 308.1 provides that "all errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice." The basic principle of the rule is that objections, to be curable for technical defects, must be made promptly or be lost. Enforcement of this principle will give the person in error an opportunity to correct curable mistakes promptly, while witnesses and attorneys are at hand, thereby saving the time and expense of a motion to suppress and having to cure technical defects long after the fact. It will also prevent the waste of time and money on needless interruptions to obtain rulings on other matters during the course of taking the deposition which might better await the time of trial.

In the case cited by plaintiff, Drosdowski v. Order of Chosen Friends (1897), 114 Mich. 178, the party opposing the deposition made proper objection before trial. There is no question in the instant case that plaintiff received notice of the taking of the deposition; plaintiff urges that the notice was unreasonable and that there was a short period of time between the notice of and the actual taking of the deposition. However, plaintiff made no objection until trial, and her failure to make objection sooner constitutes a waiver.

Affirmed. Costs to appellees.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] "This product contains ingredients which may cause a skin irritation on certain individuals. A preliminary test according to the enclosed directions should first be made. Do not use for dyeing the eyelashes or eyebrows; to do so may cause blindness. Read enclosed directions carefully before using."

[2] "(1) Express warranties by the seller are created as follows: (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

* * *

"(2) It is not necessary to the creation of an express warranty that the seller use formal words such as `warrant' or `guarantee' or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty." Uniform Commercial Code, MCLA § 440.2313 (Stat Ann 1964 Rev § 19.2313).