John A. Brown Company v. Shelton

' SUPPLEMENTAL OPINION ON REHEARING

BLACKBIRD, Chief Justice.

Upon a re-examination of the briefs initially filed in this case, together with those filed with reference to its rehearing, we are convinced that we misconstrued the defendant’s arguments concerning the excessiveness of the verdict and judgment in this case. We are now of the opinion that some of such arguments extended beyond defendant’s position that plaintiff suffered no physical injury, and encompassed an additional contention that such injury, if any, was only temporary, and that $4,000.00 is an unconscionable amount for that type of injury, unaccompanied by pain or physical suffering, even though resulting in embarrassment, humiliation, and/or mental distress or suffering. We have consequently considered that contention on this rehearing, for the first time and defendant’s citations of Higbee v. Giant Food Shopping Center (U.S.D.C., E.D., Va., Alexandria, Va.) 106 F.Supp. 586, and Lanza v. Metcalf (La.App.) 25 So.2d 453, in support thereof. In response, plaintiff seeks to distinguish the Higbee case from the present one on the ground that there plaintiff’s physical injury was not permanent, while here she testified at the trial, which occurred two and one-half years after her use of the Tint ’N Set, that her hair still suffered ill effects from it. The full text of her testimony on that subject was as follows:

“Q All right, Mrs. Shelton, what was the condition of your hair after that that you could see in regard to whether it was lustrous and lively looking, like you described it being before this occurred?

“A It was for quite sometime real dead and lifeless. It still won’t hold a permanent and shampoo and set once a week like it did.

“Q All right, your hair is now in better shape than it was immediately afterwards, I take it?

“A Certainly.

“Q But, as to the condition it is today compared to the way it was the day before you bought this from Brown’s, is it not as good now or better, or how is that?

“A I don’t believe it is; even with a new permanent it still has to be rolled at least every other night.

“Q Even with a permanent? .

“A Yes, sir.”

In view of the above evidence of improvement in the condition of plaintiff’s hair and scalp, and of other testimony showing that nature has provided a gradual and apparently continuing process of replacement of plaintiff’s damaged hair with new hair, it is reasonable to assume that little, if any, of the original damage done by the Tint ’N Set in that area still remains. Accordingly, applying the same considerations to the pertinent evidence as a whole, as were applied in the above cited cases, we have concluded that the verdict and judgment in this case was for an excessive amount. Accordingly, we have decided that the sum of $2500.00 will adequately compensate plaintiff for the legal detriment she has suffered from the use of Tint ’N Set involved herein. Therefore, we condition our affirmance of the judgment upon her filing, in the trial court, within 10 days from the filing of this court’s mandate there, a remittitur in the amount of $1500.00. If she does this, the judgment will stand in her favor; if she does not, the trial court is directed to vacate its previous judgment overruling defendant’s motion for a new trial, and enter judgment sustaining said motion.

The petition for rehearing is hereby denied.

BLACKBIRD, C. J., and WELCH, WILLIAMS, JACKSON, IRWIN and BERRY, JJ., concur.