¶1 I dissent. The negligence charged in the complaint was that defendant carelessly, negligently, and unsMllfully applied electrical appliances to plaintiff’s hair and scalp. The injury concerning which she complains was a severely burned scalp and overbaked hair resulting in her head becoming blistered and her hair falling off and coming out, thus causing plaintiff great pain and suffering and mental distress and anguish. As I read the record which is brought here for review, neither the pleadings, the evidence, nor the instructions which the court gave to the jury support the views expressed in the prevailing opinion that “the issue was narrowed to the question whether plaintiff had told the defendant that she had used peroxide on her hair.” Plaintiff complains,' not only because her hair was overbaked, but also because her scalp was burned, causing her great pain and suffering. She testified not only that her hair was rendered streaked and so brittle that much of it came out, but also that as a result of the treatment her scalp was blistered and that she became sick. She further testified that she suffered not only mental distress and anguish but also great physical pain.
¶2 Among the instructions which the learned trial judge gave to the jury are the following:
¶3 In instruction No. 10:
“You are instructed that if you find, from a preponderance of the evidence, that plaintiff was injured, and that such injury was the result of negligence on the part of said defendant, or that the defendant could have prevented such injury by the exercise of ordinary care, and that such negligence, if any, was the proximate cause of such injury to plaintiff, if any, your verdict must be for the plaintiff; but unless you do so find, your verdict must be for the defendant.”
¶4 In instruction No. 12:
“In this connection you are instructed that when a thing which causes injury is shown to be under the exclusive control of- the defendant of his employees or agents, and the injury is such as, in the ordinary course of things, does not occur if one having such control *562 uses proper care, it affords reasonable evidence in the absence of an explanation that the injury arose from the defendant’s want of care. This inference, however, as has been stated, may be explained by the defendant, but in determining whether or not the plaintiff has sustained the burden of proving such negligence by the preponderance of the evidence, you may take into consideration the circumstances surrounding the happening of the injury complained of, as well as any inference that may propery be deduced from such circumstances.”
¶5 In instruction No. 15:
“If you find from the evidence that the plaintiff is entitled to recover as alleged in her complaint, then in estimating the plaintiff’s damages you may take into consideration, if shown by the evidence, the natural and probable consequences or results of such injury, and the pain and suffering or mental anguish caused thereby, as well as any embarrassment or humiliation suffered by her.”
¶6 Defendant offered evidence to show that, immediately before and immediately after plaintiff’s hair was treated, the natural hairs of other women were given the same treatment by the same operator in the same manner for the same length of time with the same appliances in the same condition as that given to plaintiff’s hair, and that no evil results followed in the other treatment. Plaintiff objected to the evidence so offered. The objection was sustained. The ruling is assigned as error. It is said in 22 C. J. 751-753:
“Evidence of similar occurrences is admitted where it appears that all the essential physical conditions on two occasions were identical; for under such circumstances the observed uniformity of nature raises an inference that like causes will produce like results, even though there may be some dissimilarity of conditions in respect to a matter which cannot reasonably be expected to have affected the result. On like principles, other occurrences have been deemed relevant where the essential conditions are similar, although the law of uniformity in action underlying the relevancy is not natural but legal. The burden rests upon the party offering the evidence to satisfy the court that the necessary similarity of conditions exists, and in the absence of such a showing the evidence will be rejected. The action of the court in admitting such evidence involves no finding with respect thereto except that sufficient similarity has been shown to warrant its reception.”
¶7*563 A reference to some of the testimony offered at the trial will, as I think, show that this case is within the rule announced in the text just quoted. Plaintiff testified that, when the electrical appliances were adjusted, she was given a watch to observe the time and inform Mrs. Clrak when five minutes had elapsed. In about one and one-half or two minutes after the electricity was applied, plaintiff informed Mrs. Clark that the appliances were burning; that Mrs. Clark stated that it was necessary to continue the treatment for a period of five minutes; that before the five minutes had elapsed other similar complaints were made by the plaintiff, to which Mrs. Clark made similar replies. Mrs. Clark testified that no complaints were made by the plaintiff during the time she was being treated. The evidence showed without conflict that the same amount of heat and the same electrical current is used in giving a permanent wave without regard to whether the hair is natural or has been treated with a dye, bleaching agent, or restorative. The only difference between treatment given natural hair and hair which has been dyed or bleached lies in the solutions which are applied to the hair and the length of time required for the hair to remain in the electrical appliances. In the case of natural hair, electrical appliances such as those used by the defendant must be kept on the hair for five minutes. In the case of hair which has been dyed or bleached, the time required is from two and one-half to three minutes. According to plaintiff’s testimony, her scalp was being burned within one minute and a half or two minutes after the electrical appliances were attached to her hair. Thus the time for steaming dyed or bleached hair had not expired when plaintiff claims her scalp began to burn. There is nothing in the evidence which shows, or tends to show, that the application of the wrong solution to hair is likely to burn the scalp. Plaintiff made no such claims, and, if such a claim had been made upon this record, it would have been wholly without support in the evidence. If the jury found that plaintiff’s scalp was burned and she was rendered sick by the treat *564 ment she received, such finding could be justified only upon the theory that the electrical appliances were either out of repair of improperly operated. The trial court evidently held such view, otherwise the instructions heretofore quoted would be wholly without support in the evidence. It will be noted that, under the law stated in the foregoing citation, the mere fact that “there may be some dissimilarity of conditions in respect to the matter which cannot reasonably be expected to have affected the result,” does not justify the exclusion of the evidence where the essential physicial conditions on the two occasions were identical. The fact that plaintiff’s hair had been treated with peroxide some months before the occasion in question could not, under the evidence in this case, have had anything to do with the burning of plaintiff’s scalp or with causing her to become sick as a result of the treatment. Moreover, under the pleadings and under the instructions of the court, the jury may have found that the injury to plaintiff’s hair was the result of the negligent manner in which the electrical appliances were used in giving a permanent wave to plaintiff’s hair without regard to whether her hair had or had not been dyed, bleached, or treated with a restorative. The rejected evidence was calculated to show that the electrical appliances were in proper repair and that no ill effects could be expected to result from the manner in which they were used on plaintiff’s hair.
¶8 As a defense, defendant was entitled to show, if he could, not only that plaintiff’s injury was the result of her misinforming the defendant of the fact that she had used peroxide on her hair, but he was also entitled to show that he was free from negligence in using the electrical appliances upon her hair. Evidence tending to show that no evil effects resulted from the use of the same electrical appliances while in the same condition and when used in the same manner upon other patrons would tend to establish the fact that the defendant was not negligent on the occasion in question. Nor, in my opinion, may it be said that the ruling of the court in rejecting the proffered evidence was not prejudicial *565 on the theory that such evidence was merely cumulative. It is true that Mrs. Clark had, without objection, been permitted to answer questions somewhat similar to those objected to. Defendant, however, was not permitted to fully pursue the inquiry as to the use that had been made of the appliances which were used on plaintiff. The objection to the proffered testimony was not based upon the ground that Mrs. Clark had theretofore testified concerning the matter. By the ruling made, defendant was precluded, not only from fully pursuing the inquiry from Mrs. Clark, but likewise precluded from securing such testimony from any other witness which the defendant may have had.
¶9 I am also of the opinion that instruction No. 12 is open to the objection urged by the defendant; namely, that it permitted the jury to find the defendant guilty of negligence not charged in the complaint. The objection urged against that instruction is especially apparent when viewed in the light of that part of instruction No. 10 heretofore quoted. It has become the settled law in this, as well as other, jurisdictions generally, that negligence relied upon by the plaintiff for a recovery must be both alleged and proved. The instruction of the court should confine the attention of the jury to the issues made by the pleadings and the evidence. Holt v. Pearson, 12 Utah 63, 41 P. 560; Lochhead v . Jensen, 42 Utah 99, 129 P. 347; Fowkes v. J. I. Case Threshing Mach. Co., 46 Utah 502, 151 P. 53; Kendall et al. v. Fordham et al. (Utah) 9 P. (2d) 183; Industrial Commission of Utah et al. v. Wasatch Grading Company (Utah) 14 P. (2d) 988. The negligence charged was that the electrical appliances were negligently and unskillfully applied to plaintiff’s hair and scalp. Under the instruction complained of, the attention of the jury was not called to the negligence charged. None of the instructions given limited the jury to a consideration of the negligence charged in the complaint. By some of his requests, the defendant requested that the jury be limited to a consideration of the negligence charged. Such requests were refused, and the failure of the *566 court to give the same is assigned as error. Under the instructions given, the jury was at liberty to find the defendant guilty of negligence without regard to the allegations of the complaint.
¶10 The judgment should be reversed and a new trial granted.