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Huebner v. Hunter Packing Co.

OPINION FILED APRIL 4, 1978.

WILLIAM HUEBNER ET AL., PLAINTIFFS-APPELLANTS,

v.

HUNTER PACKING COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of St. Clair County; the Hon. JOSEPH F. CUNNINGHAM, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Plaintiffs appeal the judgment of the Circuit Court of St. Clair County dismissing, for failure to state a cause of action for which relief may be granted, their amended complaint against Hunter Packing Company, a division of John Morrell & Co. (Hunter) and Clayton Schneider d/b/a Schneider's A & G (Schneider). The amended complaint alleges the defendants' liability under theories of both strict liability in tort and implied warranty for plaintiffs' injuries sustained by contracting trichinosis from raw pork distributed by Hunter and sold to plaintiffs by Schneider.

Plaintiffs assert that the trial court erred in reserving decision on defendant Hunter's motion to dismiss plaintiffs' amended complaint "after" ordering Hunter to file its answer within 15 days. This contention can be disposed of summarily. Hunter moved to dismiss the amended complaint, reasserting its pending motion to dismiss the original complaint. The court reserved decision on the motion and ordered Hunter to answer, explicitly stating in the order that Hunter's motion to dismiss would not be prejudiced by the filing of an answer. Within the time allotted for filing its answer, Hunter moved the court to reconsider this order. The court allowed that motion and stated that Hunter was not required to answer until the motion to dismiss was resolved. Subsequently the court dismissed the amended complaint for failure to state a cause of action. We find no error in this procedure.

Trichinosis is a disease caused in humans by eating the meat of an animal which contains trichinella spiralis larvae, or trichinae. When a human eats pork containing trichinae, the capsule in which they are encased is dissolved during the digestive process and the larvae pass into the small intestine. The trichinae then reach adulthood and reproduce, causing the disease to spread via the lymph glands through the body and to lodge in the muscles, including the heart. It is a severe and painful disease, although rarely fatal. 11 Proof of Facts 373 (Trichinosis) (1961).

• 1, 2 As this cause is before us on the pleadings, all facts well pleaded will be accepted as true. (Acorn Auto Driving School, Inc. v. Board of Education, 27 Ill.2d 93, 96, 187 N.E.2d 722, 724 (1963).) An action should not be dismissed pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 45) for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the pleadings which would entitle the plaintiff to relief. (Wooded Shores Property Owners Association, Inc. v. Mathews, 37 Ill. App.3d 334, 337, 345 N.E.2d 186, 189 (2d Dist. 1976).) For the reasons set out below, we hold that the present plaintiffs cannot be entitled to relief under either implied warranty or strict liability in tort theory.

Counts II, IV, VI, and VIII of the amended complaint alleged that defendants made certain representations and warranties to the general public, including the plaintiffs, which were violated in that "said pork was contaminated and not fit for human consumption." Plaintiffs cite the Illinois Uniform Commercial Code sections 2-313 through 2-318 (Ill. Rev. Stat. 1975, ch. 26, pars. 2-313 through 2-318) as the source of these warranties. The pertinent statute, section 2-314, states:

"(1) * * * a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this Section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

(2) Goods to be merchantable must be at least such as * * *

(c) are fit for the ordinary purposes for which such goods are used; * * *."

As we will explain below, we believe that the "ordinary purpose" for which raw pork is used is to be eaten after thorough cooking.

• 3 For the proposition that a retail seller of meat for immediate consumption impliedly warrants the "fitness and wholesomeness for consumption" of the meat, the plaintiffs urge us to rely on Wiedeman v. Keller, 171 Ill. 93, 49 N.E. 210 (1897). Although Wiedeman is the only Illinois Supreme Court case on trichinosis, we find Wiedeman no longer controlling because of the passage of time and the increase in both scientific and common knowledge of the disease. The Wiedeman opinion is explicitly based on the policy that an implied warranty must be assumed because the consequences to life and health from eating unsound pork can be so serious. The court's reason for its decision, however, is, in light of present knowledge, untrue:

"It may be said that the rule is a harsh one; but, as a general rule, in the sale of provisions the vendor has so many more facilities for ascertaining the soundness or unsoundness of the article offered for sale than are possessed by the purchaser, that it is much safer to hold the vendor liable than it would be to compel the purchaser to assume the risk." 171 Ill. 93, 99, 49 N.E. 210, 211.)

The court's statement may be true with respect to other forms of defect or disease in meat, but even today it is impossible for a vendor to ascertain the presence of trichinosis in raw pork without thoroughly destroying the pork itself.

• 4 It has been scientifically established that thorough cooking to 137° F. will destroy all trichinae, and the trial court in the present case presumably took judicial notice of this fact. Thus, although Wiedeman did not refer to cooking by the consumer, the law in Illinois has construed the implied warranty as meaning that the retail vendor warrants that the pork is wholesome and fit for consumption after proper cooking by the consumer. The resulting warranty has been formally defined as that the raw pork is "fit for eating only after it has been cooked with ...


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