By the complaint it is alleged that the defendant was engaged in the business of hairdresser, and held himself out, and his employees, "to be skilled in treating the scalp and hair by means of electrical contrivances and appliances" to give what is commonly known as a "permanent wave." It then is alleged that the defendant was employed to treat the plaintiff's "hair and scalp" by the use and application of such electrical appliances to give her a permanent wave, "but carelessly, negligently and unskillfully applied said electrical appliances to the hair and scalp of plaintiff, said appliances being then and there under the operation and control of defendant, his agents and employees, in such a manner as to severely burn plaintiff's scalp and hair and to cause an overbaking thereof to the extent of causing plaintiff's head to become blistered and her hair to fall off and come out, causing plaintiff great pain and suffering and mental distress and anguish," to her damage in the sum of $5,000.
Among other things, complaint is made that the court, in refusing the defendant's requests to charge, and in charging the jury and in submitting the case to them, did not restrict the finding of the jury on the subject of negligence to the acts and commissions charged in the complaint, and permitted them to render a verdict for any injury sustained by the plaintiff, irrespective of the charged negligent acts. In such particular the court charged the jury in paragraphs 10 and 12 set forth in the dissenting opinion of Mr. Justice HANSEN. The court by paragraph 11 further charged that "you are further instructed that if the defendant did possess *Page 567 the skill which ordinarily characterizes his specialty, and carelessly and negligently failed to exercise it in this case, in the treatment of plaintiff's hair, and plaintiff's hair was injured, and that such carelessness was the proximate cause of the injury to the plaintiff," she was entitled to recover.
As is seen, paragraph 12 was submitted on the theory or doctrine of res ipsa loquitur. By paragraphs 10 and 11, the case was submitted upon the same theory or doctrine. It is my opinion that the doctrine of res ipsa loquitur has here no application.Baxter v. Snow, 78 Utah 217, 2 P.2d 257. By paragraph 10 all that the jury were required to find to render a verdict for the plaintiff was "that plaintiff was injured, and that such injury was the result of negligence" on the part of the defendant, regardless of whether the negligence consisted of the acts and omissions or commissions alleged in the complaint; regardless of whether the injury resulted from negligently and unskillfully applying the electrical appliances to the hair and scalp of the plaintiff, as in the complaint alleged, burning the scalp and hair, overbaking them, causing the head to become blistered and the hair to fall off and come out. In other words, if the plaintiff "was injured," she was entitled to recover, no matter what the negligent acts or commissions or omissions of the defendant were, whether those alleged in the complaint or otherwise. Similar observations may be made as to paragraph 11 of the charge. So too and more especially of paragraph 12. Such theory or doctrine that the jury was at liberty to find the defendant guilty of any negligence, of any want of care, whether as characterized by the complaint or not, runs through the main portion of the charge. The plaintiff, to recover, was required to do so on the acts and commissions of negligence alleged in the complaint and not otherwise; and the jury ought to have been so instructed. Such doctrine is well settled and applies here as well as in other cases of negligence. I see no reason to make a distinction because the defendant is a hairdresser or a cosmetologist. *Page 568
While no exception was taken to paragraph 10 of the charge, yet specific exceptions were taken to paragraphs 11 and 12. Still, in determining the theory upon which the case was submitted to the jury, paragraph 10 may be considered in connection with paragraphs 11 and 12 to which exceptions were taken.
Being of the opinion, as I am, that the case was submitted to the jury on a wrong theory or doctrine, I think the judgment should be reversed and a new trial granted.