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Whitmer v. Schneble

JUNE 26, 1975.

SHERRY LYNN WHITMER, A MINOR, BY HER FATHER AND NEXT FRIEND, EDWARD WHITMER, PLAINTIFF,

v.

ROBERT SCHNEBLE ET AL., DEFENDANTS AND THIRD-PARTY PLAINTIFFS-APPELLANTS. — (THE HOUSE OF HOYT, INC., THIRD-PARTY DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Winnebago County; the Hon. WILLIAM R. NASH, Judge, presiding.

MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

Robert and Frances Schneble owned a female Doberman Pinscher which bit a child in their home. When sued under the Illinois dog bite statute, they filed a third-party complaint against the House of Hoyt from whom they had purchased it. The trial court struck their amended third-party complaint, ordered that Hoyt go hence without day and found no just reason to delay enforcement or appeal.

On appeal, the Schnebles contend, on the basis of the allegations of their amended third-party complaint, (1) that Hoyt is liable to them (a) because of the breach of an express warranty; or (b) because it failed to warn them of the propensities of such a dog; or (c), under strict liability for selling them an "inherently dangerous" product; (2) that, liability being thus established, they have a valid third-party complaint against Hoyt in the instant action; and (3) that such is not barred by any statute of limitations. We disagree with their first and second contentions and therefore affirm, without reaching their third contention.

From the various pleadings, the following facts appear. On July 26, 1968, Robert and Frances Schneble bought a female Doberman Pinscher from the House of Hoyt. Their unsworn amended third-party complaint alleges that the dog was represented to them as a "docile dobe," appropriate for one "who is in need of a dog for companionship and friendship, but wants very little aggressiveness in him," etc., but, Hoyt's sworn motion to strike and dismiss attaches the bill of sale for the dog, signed by the Schnebles, which describes the dog as "medium aggressive," which is further described in the literature furnished them as a dobe that "can love and fight with equal zeal" and is suitable "for people who want true protection * * *." The Schnebles concede this in their reply, and we conclude that the latter is the correct version.

Some 2 1/2 years later the dog was bred and on December 31, 1970, puppies were born. On January 9, 1971, Sherry Lynn Whitney, a neighbor's child, was viewing the puppies in the presence of both of the Schnebles, when she was bitten by their mother. On June 25, 1973, the child, by her father, sued the Schnebles under the Illinois "dog-bite" statute (then Ill. Rev. Stat. 1971, ch. 8, § 12d, now Ill. Rev. Stat. 1973, ch. 8, § 366), which, in pertinent part, provides that:

"If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. * * *"

On June 25, 1973, the Schnebles filed a third-party complaint which they later amended. Count I was on an express warranty; Count II was for failure to warn of the dog's propensities, etc., and Count III was in strict liability on the ground that the dog Hoyt sold them was an "unreasonably dangerous" product. It sought indemnity from Hoyt for any judgment against them, plus attorney's fees, etc. The trial court, as we have said, struck the amended third-party complaint, sent Hoyt hence without day and found no just cause to delay enforcement or appeal.

I

The Schnebles first contend (a) that Hoyt is liable to them because of the breach of an express warranty that the "dobe" was "docile," etc.

• 1 It is very doubtful whether any of the language alleged in Count I amounted to an express warranty. Statements merely of the seller's opinion or sales talk do not constitute express warranties. (Olin Mathieson Chemical Corp. v. Moushon (1968), 93 Ill. App.2d 280, 235 N.E.2d 263; Weiss v. Rockwell Manufacturing Co. (1973), 9 Ill. App.3d 906, 293 N.E.2d 375.) Furthermore, as we have indicated, the bill of sale and brochure, which the Schnebles concede, destroy their claim.

• 2 But even if there were an express warranty, it would not appear that there was a breach. Nowhere do the Schnebles allege that Hoyt stated that the dog would not bite. Even a docile dog is known and expected to bite under certain circumstances. (See Restatement of Torts § 518, comment g (1938), and Restatement (Second) of Torts § 290, comment g (1965).) And this court will not infer a warranty that the dog will never bite from the language which was used. "[T]he law will not lend itself to the creation of an implied warranty which patently runs counter to the experience of mankind or known forces of nature. It will not read into any sale or bailment a condition or proviso which is unreasonable, impossible, or absurd." Meester v. Roose (1966), 259 Iowa 357, 144 N.W.2d 274, 276.

• 3 In addition, the statements complained of only describe the personality of the dog at the time it was sold. There is no warranty by the seller that the dog's personality will not change in the future. (See 63 Am.Jur.2d Products Liability § 95 (1972).) Yet the plaintiff did not allege that there had been a breach of the warranty on the date of the sale or that the condition of the dog had remained unchanged during the 2 1/2 years since the sale. Indeed, it would be difficult for the plaintiffs to so allege since the dog had new masters, gotten older and had puppies.

We therefore conclude that there is no merit to this contention.

The Schnebles next contend (b) that Hoyt is liable to them because it failed to warn them of the ...


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