Appeal from the Circuit Court for Prince George's County (BOWIE, J.).
The cause was argued before Brune, C.J., and Hammond, Prescott, Marbury and Sybert, JJ.
BRUNE, C.J., delivered the opinion of the Court.
This is an appeal by the plaintiff from a judgment of the Circuit Court for Prince George's County entered on the defendant's motion for judgment n.o.v. in a suit for damages based on injuries sustained by the plaintiff while having her hair bleached and dyed at one of the defendant's beauty parlors. The jury had returned a verdict for the plaintiff for $1,000.00 damages.
The declaration filed by the plaintiff asserted that the plaintiff suffered injuries "[a]s a result of the negligence of Defendant's agents * * * in failing to take proper preventive and precautionary measures before stripping and bleaching Plaintiff's hair and in the process of stripping and bleaching Plaintiff's hair and in the use of chemicals and appliances in connection therewith."
The evidence showed that on April 14, 1961, the plaintiff (on recommendation of one of her neighbors) went to the defendant's beauty parlor to have her hair bleached and dyed. She testified that she had previously dyed her hair at home (for nine or ten years) but had never gone to a beauty parlor to have it dyed. She testified that she had used a preparation known as Miss (or Lady) Clairol, and that she had merely dyed her hair without stripping or bleaching it to remove dye previously applied.
At the beauty shop an operator applied a preparation to bleach or strip her hair. The plaintiff testified that she complained to her operator and to another operator of a burning sensation during the twenty minutes before the bleach was rinsed and that the operators told her that this was normal. The operator had not warned the plaintiff in advance that there would be discomfort. After the hair was rinsed and dried, the operator observed that not all the color had been removed and applied the bleach to some spots on it (without applying it to the roots). The hair was then again rinsed and dried. A dye or "toner" preparation known as Loreal was then applied. According to the plaintiff, the operator told her that this preparation was something new and that it was very good; according to the operator, it was old. This substance was applied to the roots of the hair. The plaintiff complained that it caused her scalp to burn even more severely than the bleach and that by the time her hair was dried and she left the beauty parlor her scalp was almost numb. She testified that during the course of the treatment she complained to the operator on three or four occasions about the pain without result.
Subsequently, running sores appeared on the plaintiff's head. She telephoned the defendant that evening and was told that this was a normal phenomenon and that they could not examine her scalp because it was closing time that evening. The plaintiff then went to a doctor who treated the sores. On the next day she went to the shop where her hair had been dressed and the manager informed her that her experience was a normal one. On the next Monday, she went to the main office of Vincent et Vincent, where (according to her testimony) the manager offered to take care of her expenses, lost earnings, and
medical bills. The manager also assertedly asked her whether the operator had given her a patch test on her hair, but did not comment upon her negative answer.
The operator who bleached and dyed the plaintiff's hair testified that it was evident that the plaintiff had previously dyed her own hair using a one-process hair wash, and had not bleached or stripped it. She testified that she used a Clairol preparation to bleach or strip the plaintiff's hair. She also said that in order to restore the hair to an even color she bleached the roots, that the plaintiff had complained of pain when she dyed the hair with Loreal, but that she warned the plaintiff that sores might result from application of the preparation, and that she herself had had sores. She did not, however, recall whether this warning was given before or after the application of the preparation. The force of her testimony as to the warning was further impaired by her equivocal answers on cross-examination.
The operator also testified that she usually gave a patch test to most people who come in to have their hair bleached, but did not give the plaintiff one since she had previously bleached her own hair. She testified that she felt a patch test was unnecessary since the bleach or stripping agent used was a Clairol product like that previously used by the plaintiff,*fn1 though she conceded that no patch test was given for the dye or toner, Loreal, which the plaintiff had not used previously. ...