65 Wn.2d 949, KIETH G. ESBORG et al., Respondents, v. BAILEY DRUG COMPANY et al., Appellants

[No. 37444. Department One.     Supreme Court      February 8, 1965.]

KIETH G. ESBORG et al., Respondents, v. BAILEY DRUG COMPANY et al.,
                     Appellants.

Appeal from a judgment of the Superior Court for Thurston County, No. 32429, Raymond W. Clifford, J., entered October 8, 1963. Affirmed.

Action for damages. Defendants appeal from a judgment in favor of the plaintiffs.

* Reported in 399 P. (2d) 76.

Reported in 399 P. (2d) 310.

 950    MEMORANDUM CASES      [65 Wn. (2d)

Lycette, Diamond & Sylvester and Martin L. Wolf, for appellant Nestle-Lemur Company.

Thomas A. Swayze, for respondents.

PER CURIAM. -

The facts of this case are detailed in Esborg v. Bailey Drug Co., 61 Wn. (2d) 347, 378 P. (2d) 298 (1963). Kieth G. Esborg and wife obtained a judgment against the Nestle-Lemur Company and Bailey Drug Company, as a result of injuries sustained by Mrs. Esborg from the use of a product manufactured by the Nestle-Lemur Company, and retailed by the Bailey Drug Company. On the appeal in Esborg, supra, we reversed the judgment against Bailey Drug Company. As to the defendant manufacturer, we said:

"There is substantial evidence, which, together with the reasonable inferences therefrom, would support a finding: (a) that plaintiff's reaction to the ingredients is not an uncommon one, or, (b) plaintiff's reaction to the ingredients was unique, isolated or peculiar to her. Neither finding was made by the trial court."

We thereafter remanded the cause for a finding of fact on the issue of whether the ingredients of the product involved were harmful to a reasonably foreseeable and appreciable class or number of potential users, based on the evidence heretofore presented, and if such a finding were made by the trial court, favorable to the plaintiff, it should enter judgment against the defendant manufacturer.

The trial court upon the remand made findings favorable to the plaintiff on this issue, and entered judgment accordingly against the defendant. The defendant appeals.

We have considered the assignments of error and conclude the judgment was properly entered against the defendant pursuant to the remand.

The judgment is therefore affirmed.

March 29, 1965. Petition for rehearing denied.