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Willis v. West Kentucky Feeder Pig Co.

JANUARY 14, 1971.

SAM WILLIS, PLAINTIFF-APPELLANT,

v.

WEST KENTUCKY FEEDER PIG COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Menard County; the Hon. RICHARD MILLS, Judge, presiding. MR. JUSTICE CHAMBERLAIN DELIVERED THE OPINION OF THE COURT:

The plaintiff brought an action against the West Kentucky Feeder Pig Company for damages from an alleged breach of warranty in the sale of feeder pigs. A jury returned a verdict for the plaintiff in the amount of $490.64.

The trial court granted a judgment n.o.v. for the defendant on its post-trial motion. The plaintiff appeals from this ruling.

Defendant cross appeals on the trial court's denial of its motion to quash service of summons on the grounds there were no facts to warrant jurisdiction over the defendant.

We shall take up the question of jurisdiction first.

The defendant contends that insufficient facts were shown to give the Illinois Court jurisdiction over this case. The defendant is a foreign corporation operating in the State of Kentucky. Service was had on the defendant under the "Illinois long arm statute," Ill. Rev. Stat. 1965, ch. 110, par. 17(1)(a).

In September, 1966, Mr. Leo Reiser contacted the plaintiff and inquired whether he was interested and subsequently 200 pigs were delivered from the defendant's company to the plaintiff's farm. The order for the pigs was made over the telephone to the defendant. Defendant contends that Reiser was either plaintiff's agent or an independent contractor. The plaintiff paid the truck driver for the pigs at the time of delivery and the check was made payable to the defendant.

The defendant and plaintiff had had prior and similar circumstances. Initial contact and subsequent delivery were made in Illinois as well as payment.

We believe under these facts that sufficient acts occurred in Illinois to give this State jurisdiction over this transaction. If the plaintiff for some reason had refused delivery of the pigs, the defendant certainly would have used Illinois courts to sue for breach of contract. Illinois law would have been applicable.

• 1 Therefore, we find that the trial court properly denied the motion to quash service of summons.

At the time of delivery three pigs were refused because they looked ill. Medication was placed in the water of the remaining pigs. The day after the pigs were received the plaintiff thought they looked ill. Mr. Reiser was called several times during the next few days. Each time the plaintiff would place additional medication in their water.

Eleven days later the plaintiff contacted a veterinarian and he examined the pigs eight times through early October of 1966. On October 11 Dr. Prozka, another veterinarian acting on behalf of the defendant, examined the pigs and instructed the plaintiff's doctor to inject penicillin in the pigs.

Later, on October 26, 1966, the plaintiff made a complaint with the Department of Agriculture. Mr. James Austin, a department employee, examined the pigs and found most did not have ear tags while some had Kentucky or Tennessee tags. Plaintiff had contended that the pigs were all to be Kentucky pigs with tags.

Between the end of October and sometime in December about thirteen to sixteen pigs died and the rest were sold. Some of the pigs had gained as much as 150 pounds before the sale.

It was eleven days after delivery that the plaintiff first contacted his veterinarian, Dr. Byerly. It was not until October 10 or 11, 1966 that the defendant's veterinarian, Dr. Prozka, was first ...


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