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Kligman v. Wilfred Co.

Decided: July 18, 1966.

BERTHA KLIGMAN, PLAINTIFF-RESPONDENT,
v.
WILFRED COMPANY OF NEWARK, INC., DEFENDANT-APPELLANT, AND BONAT, INC., DEFENDANT-RESPONDENT



Gaulkin, Labrecque and Brown.

Per Curiam

Plaintiff recovered judgment upon a verdict against Wilfred Company of Newark, Inc. (hereafter Wilfred) for injury sustained as a result of a "permanent wave" treatment, and Wilfred appeals.

In Hewitt v. Hollahan, 56 N.J. Super. 372, 377 (App. Div. 1959) we said:

"From time to time we have been compelled to point out that imprecise pleadings often lead to error. Cf. State v. Arbus, 54 N.J. Super. 76 (App. Div. 1959); Board of Education, Woodbridge Tp. v. Kane Acoustical Co., 51 N.J. Super. 319 (App. Div. 1958). The reason for this must be fairly obvious. A vague complaint, full of generalities, frequently indicates that the pleader has not thought through his cause of action, and does not yet know precisely upon what theory he will present his case. Consequently, unless he learns more about his case before he comes to trial, he may come without the evidence necessary to support the only theory upon which he can prevail.

A vague pleading in turn tends to confuse the adversary and the court. The defendant may understand plaintiff's pleading differently than the plaintiff does himself, while the court may make even a third interpretation of it."

Transposing the parties in the above quotation, it applies to the case at bar.

Plaintiff's complaint and amended complaint charged that Wilfred operated "a ladies barber shop and beauty parlor * * * for hire * * *"; plaintiff was a patron, paid for service and defendant's "agent, servant and/or employee performed the said work in so negligent, careless and dangerous a manner and used such procedures and lotions or liquids and preparations which were of a dangerous and unsafe character and/or so negligently and carelessly used that the plaintiff sustained * * * injuries * * *." The "agent, servant or employee" was not joined. Wilfred cross-claimed against Bonat, the manufacturer of the lotion, for breach of warranty of the lotion's fitness for use upon the head, whereupon plaintiff amended her complaint to make the same claim upon Bonat, but the trial court found the evidence insufficient to support those claims and entered judgment in favor of Bonat. Wilfred appeals from that dismissal also.

Wilfred's first answer was a general denial. It then amended its answer to say it "admits that it was the operator of a school for training of beauty parlor personnel." But plaintiff had not alleged that Wilfred operated a school! Wilfred denied the remaining allegations of the complaint, and pleaded the following separate defenses: (1) it had violated no duty owed to plaintiff and was guilty of no negligence; (2) the accident and injuries alleged were caused solely by the negligence of plaintiff; (3) plaintiff was guilty of contributory negligence; (4) she was guilty of assumption of risk; (5) the occurrence alleged in the complaint was unavoidable insofar as defendant is concerned, and (6) prior to receiving any services from defendant, plaintiff executed in writing a release absolving defendant from any damages and hence it is not liable to plaintiff.

The trial judge treated the case as the usual action by a patron against a beauty parlor for the negligence and malpractice of its employee, and the case was submitted to the jury on that theory.

Since defendant claimed the release was executed before service was rendered, the judge ruled it was against public policy and void. McCarthy v. National Ass'n for Stock Car Auto Racing, Inc., 90 N.J. Super. 574 (App. Div. 1966), affirming 87 N.J. Super. 442 (Law Div. 1965), certification granted 47 N.J. 421 (1966). See also Annotation, 6 A.L.R. 3 d 704 (1966). Note, however, that if plaintiff executed the release after the injury, as she herself testified, it may be valid if she was aware of the nature of the document she was signing. Raroha v. Earle Finance Corp., 47 N.J. 229 (1966).

But, at the trial defendant argued, albeit far from clearly, that Wilfred was a school, that plaintiff knew it, and that the so-called release was admissible because she ...


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