Steele v. Rapp

Schroeder, J.

(dissenting): In cases of this kind courts draw an uncertain and wavering line between negligent acts which are a proximate cause of injury and damage and results which are too remote from the cause. Courts endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind, always directing attention to the fact that it is a question of fair judgment.

But for the fact that the defendant sold the fingernail polish remover in a one gallon glass bottle to Russel’s East Beauty Salon, the plaintiff would not have been injured. This, however, is not the test of liability in a negligence case. Proof of negligence in the air, so to speak, will not do. Negligence is the absence of care according to the circumstances. Negligence involves a relationship between man and his fellows. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance, before an act is said to be negligent, there must exist a duty to the individual complaining, the observance of which would have averted or avoided the injury. *387 The plaintiff who sues his fellowman sues for a breach of duty owing to himself. The victim does not sue derivately, or by right of subrogation, to vindicate an interest invaded in the person of another.

One who drives at a reckless speed through a crowded city street is guilty of a negligent act and, therefore, of a wrongful act irrespective of the consequences. It is wrongful in the sense that it is unsocial, but wrongful and unsocial to other travelers only because the eye of vigilance, sometimes referred to as the prudent person, perceives the risk of damage. If the same act were to be committed on a speedway or a race track, it would lose its wrongful character. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339 , 162 N. E. 99 , 59 A. L. R. 1253; and Seavey, Negligence, Subjective or Objective, 41 Harv. L. Rev. 6 .) Negligence, like risk, is thus a term of relation.

Similarly, in the instant case, the defendant did not sell finger-' nail polish remover in bulk quantities to the public generally; he sold it in bulk as a supplier to another business, a beauty shop. To repeat, negligence is the absence of care according to the circumstances. What are the circumstances?

The allegations of the petition under consideration in a sense belie themselves. At the threshold of any case like this is the general rule that as against a demurrer the petition of the plaintiff is entitled not only to the benefit of the facts pleaded, which must be taken as true, but to all reasonable inferences that may be derived therefrom. (Cassity v. Brady, 182 Kan. 381 , 321 P. 2d 171 , and cases therein cited.) Under rules here applicable the second amended petition before the court is subject to a liberal construction. The indulgence of the court to supply reasonable inferences from the well pleaded facts, however, does not permit the court to supply an allegation totally absent. While it is alleged that the plaintiff and Loretta Jamison did not know Kenra Finger Nail Polish Remover was a highly inflammable and explosive substance, there is no allegation that the defendant knew or should have known these beauty operators did not know the character of this product.

The plaintiff is bound by the allegations that the product in question, a chemical, is “highly inflammable and explosive” and also “inherently and imminently dangerous and explosive.”

*388 It is specifically alleged that the product known as Kenra Finger Nail Polish Remover was sold by the defendant, engaged in the business of distributing and selling preparations and supplies for beauty shops; that the product in question was sold to RusseTs East Beauty Salon, an establishment engaged in business as a beauty shop; and although the petition does not specifically state the ownership thereof, it will be assumed for purposes of discussion hereafter that Russel is the owner of the beauty shop. It is further alleged that the plaintiff and Loretta Jamison were employed as beauty operators at the beauty shop in question, and that they were so employed and working in the beauty shop at the time Loretta Jamison dropped the gallon bottle of Kenra Finger Nail Polish Remover to the floor as she was pouring the product from the gallon bottle into a smaller container for use at her manicure desk, as a result of which the gallon bottle broke and the liquid ignited and exploded causing plaintiff’s injury.

Everyone is presumed to know the law. The statutory laws of this state applicable to beauty shops and beauty operators indicate that the business or occupation is subject to strict regulation.

Among other things G. S. 1949, 65-1904a, provides that any licensed cosmetologist or person desiring to establish a beauty shop shall make application for a certificate of registration to the board of registration and examination for cosmetologists. The board is required to inspect the equipment and premises as to safety and sanitary condition for compliance with the sanitary regulations of the state board of health and regulations of the state board of registration for cosmetologists. This shop license or certificate of registration must be renewed annually.

Applicable definitions are set forth in G. S. 1949, 65-1902, as follows:

“The occupations of cosmetologist and apprentice, as applied in this act, shall be defined as follows: (a) For the purpose of this act, the term cosmetologist shall be designated as the occupation which includes the practice known as ‘hair dresser,’ ‘beauty culturist,’ ‘cosmetician,’ and ‘manicurist.’ ‘Cosmetologist’ is a person who, for profit, by any means or manner, does or performs any one or more of the following: (1) Arranges, dresses, permanent curls, curls, waves, singes, cleanses, dyes or bobs the hair; (2) massages, cleanses, stimulates, or manipulates, or performs similar work on, tire scalp, face, neck, arms, hands, bust or upper part of the body with the hands or mechanical or electrical appliances; (3) makes use of cosmetic preparations, antiseptics, lotions, creams or other preparations in performing any one or more of the practices described in clauses (1) and (2) of this section; (4) *389 manicures the nails of the hands or removes superfluous hair from the face or any part of the body; or (5) any other beautifying process on any person: Provided, Any person who practices the manicuring of the nails only is defined as a ‘manicurist.’ (b) ‘Apprentice’ is a person engaged in learning or acquiring any of the arts and practices of the occupation of cosmetologist, as herein defined, within a duly registered school, or under the immediate direction and supervision of a registered cosmetologist, who, preparing for occupation of cosmetologist, shall practice as such apprentice for twelve (12) months, and who, preparing for occupation of manicurist, shall practice as such apprentice for two (2) months, when such apprentice shall be eligible for examination: Provided, That no apprentice shall be allowed to make any charge for 'his services: . . .”

Under the foregoing statute it is clear that plaintiff and Loretta Jamison are not apprentices. It is immaterial whether these beauty operators are actually “cosmetologists” or “manicurists” for purposes of ruling the demurrer.

The provisions of G. S. 1949, 65-1901, make it unlawful for any person to follow the occupation of cosmetologist or manicurist or to conduct schools teaching such occupation in this state unless he or she shall be the holder of a certificate of registration as provided for in the act.

G. S. 1955 Supp., 65-1903, makes provision for registered schools in the state where the occupation of cosmetologist may be taught or acquired. It provides that the instructors be duly registered in the practices they teach and licensed as instructors. The statute requires a course of training of not less than 1,000 hours of instruction and practice in preparation for the occupation of cosmetologist, covering a period of six months’ continuous training and 150 hours of instruction and practice in preparation for the occupation of manicurist.

Under G. S. 1955 Supp., 65-1904, an applicant for a certificate of registration must make application to the board of registration for cosmetologists and if found to be duly qualified to practice the occupation of cosmetologist or manicurist upon examination shall be issued a certificate of registration.

The defendant supplying beauty shops, and in particular Russel’s East Reauty Salon, was entitled to assume that Russel, and the beauty operators he employed, observed these laws and by reason thereof Russel was licensed to operate the business and his beauty operators held certificates of registration as cosmetologists or manicurists and had completed the prescribed course of study in their occupation. Until the defendant had actual knowledge to the con *390 trary, he could not have been negligent in this assumption. By the same token, defendant was entitled to assume that the beauty operators employed by Russel, including this plaintiff and Loretta Jamison, by reason of their course of study knew the precise characteristics of the chemical products or preparations which they used in their occupation; that they were fully aware of the dangers and uses of these chemicals, including “Kenra Finger Nail Polish Remover,” both in handling the product itself and in using it upon patrons of the beauty shop. It is not alleged that this was a new product purchased by Russel in his beauty shop for the first time as in G. C. P. Fire Relief Assn. v. Sonneborn Sons [1934], 263 N. Y. 463 , 189 N. E. 551 . Under these circumstances, where defendant was entitled to assume that the plaintiff and Loretta Jamison knew the character of this, imminently dangerous and inherently explosive product, the failure of the defendant to label or otherwise give notice of the dangerous quality of the product could not have been a proximate cause of plaintiff’s injury.

The allegation, that plaintiff and Loretta Jamison did not know that Kenra Finger Nail Polish Remover was a highly inflammable and explosive substance, is no more than an allegation under the circumstances that they were negligent. Whether such negligence of the plaintiff was a proximate cause need not be determined, since the defendant has not raised the question of contributory negligence in the lower court or on appeal. It matters not that the plaintiff may have overpleaded her cause of action. If the fingernail polish remover possessed the characteristics here alleged the beauty operators are presumed to have knowledge of it so far as this defendant is concerned under the allegations of the second amended petition.

If Russel did not comply with the law and hired beauty operators who were not licensed or schooled in their occupation, and permitted them to use an imminently dangerous and inherently explosive product in their occupation on the person of individuals patronizing his beauty shop, or handle it themselves, without himself instructing them as to the character of the product, his conduct would be a culpable act or omission of greater magnitude than simple negligence. In this event it would be an independent efficient intervening cause of the plaintiff’s injury. (Hickert v. Wright, 182 Kan. 100 , 319 P. 2d 152 .) Since the defendant has not raised any question concerning the conduct of Russel, the decision need not rest on this point.

*391 For purposes of ruling this demurrer the defendant in his brief concedes that selling the fingernail polish remover in a one gallon glass container was negligence. The defendant contends that the act of Loretta Jamison in dropping the bottle to the floor, which caused it to break, was an independent efficient intervening cause, and as such shielded the defendant from the consequences of his alleged negligence.

It may reasonably be inferred from the allegations of the second amended petition that delivery of the product in question was safely made from the defendant’s place of business to the beauty shop. Russel through his employees and agents safely came into the full custody, possession, control and ownership of this imminently dangerous and inherently explosive product at his place of business.

Is the defendant obligated to anticipate that Russel to whom he sold the product in bulk, and who by reason of the purchase became the owner of the product in question for use in his beauty shop, would not exert the highest degree of care, both himself and by and through his employees and agents, to keep the product in close custody to prevent its doing mischief? Under the circumstances heretofore related, where Russel was accustomed to the use of the product in his business by and through beauty operators holding certificates of registration in their occupation, a prudent person in defendant’s position would not have so anticipated. The defendant was entitled to assume that Russel, the owner of this product, would safely handle and use this product, since such duty is imposed upon Russel by law.

Applying the rule in Clark v. Powder Co., 94 Kan. 268 , 146 Pac. 320 , L. R. A. 1915 E 479, Ann. Cas. 1917 B 340, Russel, the owner of so inherently dangerous a commodity as Kenra Finger Nail Polish Remover, was required to exert the highest degree of care to keep it in close custody to prevent its doing mischief-, and that duty never ceased; and Russel as such owner is liable for all the natural and probable consequences which flow from any breach of that duty.

The purpose in stating Russel’s obligation is not to show him liable under the second amended petition, but to show that the defendant was entitled to assume and rely on Russel, who acquired ownership of the product for use in his business, to exert the highest degree of care both himself and by and through his employees *392 and agents. Thus, the negligent act of Russel’s beauty operator, Loretta Jamison, in dropping the bottle which caused it to break, is an independent efficient intervening cause of plaintiff’s injury and damage, and the defendant’s negligence in selling the product in a glass bottle is a remote cause for which no liability attaches. In other words, the negligent act of the defendant supplied the condition, but it was not the proximate cause of plaintiff’s injury. (Hickert v. Wright, supra; and 38 Am. Jur., Negligence, §68, pp. 724, 725.)

On the facts and circumstances here presented by the second amended petition this is a stronger case than Beldon v. Hooper, 115 Kan. 678 , 224 Pac. 34 , where safe delivery of carbon disulphide in two glass bottles was not even made to the father for use in his business by his fifteen-year-old son, the plaintiff. There the negligent act of the druggist in failing to pack the two glass bottles of carbon disulphide in cartons with excelsior was held to be a remote cause of plaintiff’s injury and damage. One bottle broke while the son was making delivery and the contents spilled on his person and clothing in the automobile. The liquid was set on fire and plaintiff severely burned. The proximate cause was said to be some intermediate agency which caused the fire, “a spark of some kind, or a very heated piece of steel or iron, or something of that kind.” A review of the case is more fully set forth in the court’s opinion.

Many similarities to the instant case are found in Cruzan v. Grace, 165 Kan. 638 , 198 P. 2d 154 , where the court held the petition de-murrable on the' ground that it stated an intervening act of a third party entirely unrelated to any of the alleged acts of the defendants. The plaintiff was employed to work as a ranch hand on a 2,000-acre ranch where the defendants’ business consisted of farming, ranching and divers agricultural pursuits, which work required the handling of horses. The petition failed to allege that plaintiff was inexperienced as a ranch hand or in the handling of horses, and the court said that it must be assumed the plaintiff was familiar with the general nature and character of the work he agreed to perform. A three-year-old horse that was touchy and inclined to run, in fact, did run away when a double-tree fell off the tongue of the wagon and hit the young horse on the heels. The plaintiff alleged that it was negligence for one of the defendants to direct the plaintiff to harness up a team of horses, one of which, unknown to the plaintiff, was untamed and unbroken to work and of the age *393 of three years. He further alleged that unknown to the plaintiff, some employee had left a double-tree unfastened on the tongue of the wagon. The latter was held to allege an independent, intervening and efficient cause of the accident which was the negligence of a fellow servant.

While the court recognized the general rule that a servant assumes the work risks and dangers of his employment, including that of the negligence of a fellow servant, the decision did not rest on this point. It was said in the opinion:

. . although it is alleged appellee did not know the horse was unbroken and susceptible to running away there is no allegation he did not recognize its age; nor is it alleged he could not have discovered the alleged facts in the exercise of reasonable diligence; he had been on the ranch approximately three weeks; the facts stated describe a situation not at all uncommon to ranch life and one with which the ordinary ranch hand is quite familiar; the facts alleged inhere in the work appellee agreed to perform; they were within the range of his knowledge and were such as would naturally call for observation and inquiry by a prudent ranch hand.

“In the instant case, we, however, have an additional fact. While it is not alleged as clearly as it might have been the petition is open to the construction the untamed horse was one of the horses appellee was ordered to use by one of his employers. If that be true, and on demurrer it is admitted, we would hesitate to say appellee did not have a right to assume the horse was broken and reasonably safe to be used.

“It is not necessary to rest the instant decision on the question whether, under these circumstances, appellee assumed the risks incident to handling horses. Under the allegations of the petition it does not appear the horse ran away because it was young and unbroken. The petition squarely alleges a subsequent, independent and intervening cause which caused the horse to run . . (pp. 640, 641.) (Emphasis added.)

A material distinction in Rowell v. City of Wichita, 162 Kan. 294 , 176 P. 2d 590 , is the allegation in the petition that vagrant bottles left in the stadium by the defendants, which would fall or be thrown, was known to the defendants to have previously occurred.

While one is bound to anticipate and provide against what usually happens and what is likely to happen, it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable. A high degree of caution might, and perhaps would, guard against injurious consequences which are merely possible, but it is not negligence, in a legal sense, to omit to do so. (Stone v. Boston & Albany Railroad, *394 171 Mass. 536 , 51 N. E. 1 ; Clark v. Powder Co., supra; and Beldon v. Hooper, supra.)

It is respectfully submitted that the trial court should be affirmed.