O'Neill v. Dan Cohen Co. , 50 Ohio App. 530 ( 1935 )

The plaintiff, Thomas A. O'Neill, alleges in a first cause of action that on December 16, 1932, he purchased a pair of shoes from the defendant, Dan Cohen Company, paid for same, and took them away with him; that later he tried to wear the shoes and found that he suffered pain in his left foot; that he returned the shoes to the defendant, complained that he could not wear the left shoe without pain, and tendered them to the defendant; that the defendant examined the shoes, admitted they did not fit, and stated he would remedy the trouble; that some additions and alterations were made thereon while plaintiff waited in defendant's store; that defendant then returned the shoes to plaintiff with the statement "that it had corrected all the defects existing in said shoes and that the shoes would now fit his feet comfortably and would cause no further trouble and pain and discomfort, and that he could thereafter wear the shoes without damage or injury to said plaintiff"; that the plaintiff accepted the shoes and wore them when he left the store of defendant; that they felt comfortable; that he relied upon the statements of the defendant that he could wear the shoes without injury to his feet; that defendant had placed several heel lifts in the left shoe; that the defective condition of the shoe was not remedied; that the left shoe did not fit plaintiff's left foot, and that as a result of the defective condition of the shoe and as a result of the breach of warranty of the defendant "a sore was produced in his [the plaintiff's] left heel, subsequent to the representations, statements, and express warranties of the defendant and at a time when the shoe was being worn in reliance upon the representations, statements, and express warranties made to him by the defendant," and that plaintiff thereafter immediately notified defendant of such breach of warranty and tendered the shoes to the defendant.

For a second cause of action the plaintiff alleges that the defendant knew that the counter of the left shoe was stiff and hard and that the seam of the counter was rough; that the shoe was too short and was a misfit, that defendant had not remedied the defects therein; that its representations that such defects were corrected were untrue and made to induce the plaintiff to accept the shoes, and that he, plaintiff, relied upon such representations and was damaged.

For a third cause of action the plaintiff alleges that the defendant negligently sold the shoes when they were rough and a misfit, and that the defendant was guilty of wanton and wilful negligence, causing damage to the plaintiff when he wore the shoes.

We are cited to no case which even remotely suggests the propriety of a recovery under any of the theories presented, nor are we able to find any, and we would be surprised if such existed. Such authorities as there are on the subject hold to the contrary.

This is not a case of an article of wearing apparel — made to order and constructed especially to fit the purchaser. The shoes were purchased in the ordinary course of trade, and even though the defendant may be presumed to have especial skill in fitting shoes to a customer's feet it is obvious that no one can tell better than the wearer whether a shoe fits and is comfortable.

It is alleged that upon trying on the shoes, after they were altered, they felt comfortable, and that plaintiff was satisfied therewith, for he accepted them. Could the merchant have greater knowledge than the customer as to whether the shoes fitted? Certainly a blister could not be worn upon the foot without the wearer becoming aware of a pressure causing such blister. It is a matter of common knowledge that persons are apt to wear shoes that are no larger than absolutely necessary. To hold a dealer responsible for the bad effects of those who insist upon wearing shoes that are too tight would be extending liability on any ground to an undue extent.

Again, it is a matter of common knowledge that the human foot changes greatly under different conditions, and that both temperature and use have a direct reaction to comfort.

Section 8392, General Code, reads as follows:

"Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only shall be construed as a warranty."

No amount of representations on the part of the dealer would have convinced the plaintiff that the shoes fitted if they did not. He states that they felt comfortable; that is they fitted him. His reliance was not upon the statements of the defendant, but upon his own sense of feeling. At the most the dealer's statement as to whether the shoes were a good fit could be nothing more than an opinion, because the dealer could not feel whether the shoes were a comfortable fit or not. The nearer the shoes are to a perfect fit the more is the dealer dependent upon the reaction of the customer to their use. A customer has only himself to blame if he accepts shoes that are uncomfortable or too tight.

What has been said applies to both warranty and misrepresentation, as well as the cause of action predicated upon negligence.

Upon the last predicate, we find that the Court of Appeals of the Eighth Appellate District has largely expressed our opinion in a similar case, Dubbs v. Zak Brothers Co., 38 Ohio App. 299,175 N.E. 626. The syllabus of the Zak case reads:

"1. Dealer who sold pair of shoes held not liable for damages resulting from mere fact that shoes did not fit customer's feet.

"2. Dealer may assume customer purchasing shoes will exercise ordinary judgment in determining whether shoes cause him discomfort."

And on page 302 of the opinion the Court says:

"Giving the petition its most favorable interpretation, it will appear that the essence of the complaint is that the particular shoes did not fit the particular feet of the particular customer. The dealer had a right to assume the purchaser would exercise ordinary judgment, and that, if he found that the shoes caused him discomfort, he would not wear those shoes. If the customer persists in wearing the shoes and allowing the pinching and discomfort, and the injuries result therefrom, he has himself to blame and none other."

The trial court committed no error prejudicial to the plaintiff in error in sustaining the demurrer, and the judgment is affirmed.

Judgment affirmed.

MATTHEWS and HAMILTON, JJ., concur.