Reed v. Swift & Co.

REEVES, Chief Judge.

Many motions have heretofore been filed in the above case and rulings made thereon. At one time a motion to dismiss on similar grounds to those alleged in the present motions was ruled adversely to the defendant. Very recently the Supreme Court of Kansas in Frier v. Proctor & Gamble Distributing Company, 173 Kan. 733, 252 P.2d 850, denied recovery in a similar case for the reason that the petition sounded in contract and not in tort as in this case. Counsel have therefore invoked the Kansas law for the reason that the claimed injuries resulting from the sale of detergent were suffered in Kansas.

The St. Louis Court of Appeals in a similar case, Worley v. Proctor & Gamble Mfg. Co., 253 S.W.2d 532, ruled adversely to the plaintiff where the petition, as i,n this case, sounded in contract. As intimated by the Supreme Court of Kansas, in the Frier case, supra, if the plaintiff had elected to proceed in tort the result might have been different. The same is intimated in the Worley case, supra.

The Kansas Supreme Court said, in reference to plaintiff, “She elected to rely on ‘warranty, both express and implied.’ ” [173 Kan. 733, 252 PRd 851.]

Since plaintiff’s petition in this case sounds in contract and not in tort, the motion to dismiss should ordinarily be. sustained. However, since the decision cited by counsel was one where the plaintiff was given an opportunity to elect either to proceed on contract or tort, the same ruling should be made here.

Accordingly, plaintiff may be granted permission to amend her complaint so as to proceed in tort, if such be desirable. Otherwise, the petition should be dismissed. Such election by proper amendment to the complaint should be made within ten days. It will be so ordered.