Markulics v. Maico Co., Inc.

MOORE, P. J.

Appellant was denied recovery on her action for damages resulting from the breach of an implied warranty of the. fitness of a hearing aid. The instrument consisted of (1) a bakelite amplifier to be attached to her garment between the breasts; (2) batteries contained in a cloth case to be strapped to the outside of the left thigh; (3) a belt to extend around the abdomen; (4) an ear mold fitted into the left ear, and (5) insulated wires connecting the batteries with the ear piece and the microphone. On June 3, 1943, she contracted for the purchase of the device, received it on June 11, wore it each day until the 17th when, while at work, she felt an itching sensation near her left breast under

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the microphone and on the left thigh beneath the battery. She promptly “placed a napkin and a handkerchief underneath the battery and also on my breast.” Shortly thereafter the device lost its power. On arriving at her home she discovered multiple third-degree burns on the thigh where she had worn the battery and under the left breast. She had second-degree burns on her abdomen. The third-degree burns were green or greenish black like the color of the B battery. The sack which contained the battery and her upper stocking near the thigh burns were also of a greenish color. The attending physician testified that the second-degree burns had healed in December, 1944, but that plaintiff was nervous, and her scars on the thigh and breast were visible in March, 1945.

Appellant contends that the evidence does not support the finding that the hearing aid and accessories were fit for the purpose for which they were intended. On the contrary appellant’s testimony that she had successfully used the device for five days prior to the burn disproves such contention. The record is devoid of evidence of the device’s lack of efficacy as an aid to hearing.

The trial court by processes of deduction and elimination derived that the burns could have been caused by the hearing aid in only two ways: (1) by chemicals from the batteries; (2) by electricity generated thereby. Since the batteries were dry cells and contained no violent acid, such burns could not have been caused by them. The absence of corrosion from their exterior is proof that no dangerous chemicals leaked or exuded from the cells. Their freedom from acid contents was established also by the fact that the sack which held them was not in the least impaired. Such would indubitably have followed the leak of destructive chemicals. Even had the batteries contained sulphuric acid there was no means by which it could have reached the abdomen which was encircled with a harmless piece of cloth or the breasts against which was suspended her brassiere underneath the innocent plastic microphone.