Chapman v. Roggenkamp , 1913 Ill. App. LEXIS 389 ( 1913 )

Mr. Justice Gridley

delivered the opinion of the court.

It is contended by counsel for defendant that the evidence does not establish that plaintiff’s illness and sufferings were caused by the peas. This was a question for the jury under all the facts and circumstances in evidence. From the verdict it is evident that the jury believed that plaintiff’s illness was caused by her eating the peas in question and, in our opinion,.the verdict is amply supported by the evidence.

It is also contended by counsel that, in a sale of canned provisions by a retail dealer directly to a consumer, where the dealer purchased the same from a wholesaler or packer and is not aware of the unwholesome condition thereof at the time of the sale to said consumer, there is no implied warranty that said provisions are sound and wholesome. It is argued that where a person purchases from such a dealer articles of food in cans for immediate consumption, the buyer, from the nature of the transaction, must know that the seller has no greater knowledge as to the condition of the articles than the buyer has, and hence, does not rely upon the seller’s superior knowledge, and that, therefore, there is no implied warranty of the wholesomeness of said articles. .

In Wiedemm v. Keller, 171 Ill, 93, Keller was a retail dealer in meats and plaintiff called at Ms place of business and purchased a quantity of pork to be used in her family. The pork turned out to be unwholesome and unfit for food. Plaintiff cooked the pork and ate some of it and was made ill, and it was held that the dealer was liable to plaintiff for damages by reason of the implied warranty of the fitness and wholesomeness of the pork for consumption. Our Supreme Court says, on page 98:

“As a general rule, we think the decided weight of authority in the United States is, that in all sales of meats or provisions for immediate domestic use by a retail dealer, there is an implied warranty of fitness and wholesomeness for consumption. There is, however, no implied warranty of soundness or wholesomeness arising from the sale of meats or provisions to a dealer or middle-man who buys on the market, not for consumption, but for sale to others. Nor would there be any liability, in a sale for immediate domestic use, where the vendor was not a regular dealer. * * * In this case, however, the appellee was a regular retail dealer, and as such he sold the meat to appellant for domestic use, and, under the law as it seems to be settled in this country, as the meat turned out to be unwholesome, he was liable, although he was not amare that it was diseased when he sold it to appellant.

In an ordinary sale of goods the rule of caveat emptor applies, unless the purchaser exacts of the vendor a warranty. Where, however, articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound .article may be so serious and may prove so disastrous to the health and life of the consumer that public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound and fit for the use for which it was purchased. 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.”

Counsel endeavors to distinguish the Keller case supra, from the present case. He says that in that case the dealer had an opportunity of inspecting the pork before selling it, which opportunity of inspection the defendant in the presnt case did not have because the peas sold to plaintiff were in a sealed tin can. Inasmuch as it appears from the opinion in the Keller case, and from several authorities cited therein, that public safety demands that, in all sales of provisions for domestic use by a retail dealer, there should be an implied warranty of the fitness and wholesomeness of said provisions for consumption, and inasmuch as it further appears in the Keller case, as also in the present case, that the retail dealer was not aware at the time of the sale of the unwholesomeness of the articles of food, we think that, under the facts of this case and the weight of authority, the defendant is liable on an implied warranty. See also Nelson v. Armour Packing Company, 76 Ark. 352; 15 Am. & Eng. Ency. Law (2d Ed.) p. 1238; Hoover v. Peters, 18 Mich. 50, 54.

Complaint is also made of the action of the trial court in admitting and refusing, to admit certain testimony, and in giving and refusing to give certain instructions. We have carefully considered the arguments of counsel in these particulars, and are of the opinion that there is no prejudicial error in the record. In the view we take of the law we think the jury were correctly instructed, and we do not think that the verdict is excessive, as contended by counsel.

The judgment is accordingly affirmed.

Affirmed.