Ketterer v. Armour & Co.
| Decision Date | 24 September 1912 |
| Citation | 200 F. 322 |
| Parties | KETTERER v. ARMOUR & CO. |
| Court | U.S. District Court — Southern District of New York |
At Law. Action by Sophie Ketterer against Armour & Co. On demurrer to complaint. Overruled.
Charles Dushkind, of New York City (Leonard F. Fish, of New York City, on the brief), for plaintiff.
Breed Abbot & Morgan, of New York City, and A. F. Reichmann, of Chicago, Ill., for defendant.
The plaintiff seeks to recover damages for injuries sustained through eating a pork product prepared by the defendant and infected with trichinae. The plaintiff avers in her complaint that pork so infected is diseased and poisonous; that by proper inspection the presence of the infection can be ascertained; that it was the duty of the defendant to make such inspection, and that it wholly failed in the performance of such duty. The defendant by demurring admits the truth of the allegations and raises the question of the obligation owed by a manufacturer of meat products and to whom it is owed.
The contention of the defendant is that a manufacturer who deals with the middleman and not directly with the consumer owes the latter no duty whatever except the duty owing to all men to refrain from knowingly and willfully inflicting injury. And as willful injury is hardly conceivable, the claim comes down to this, that a producer of meats can take no steps to detect poisonous parasites in his products although the danger of their presence is well known and can be guarded against, and yet may sell such products with impunity so far as the demands of poisoned consumers are concerned.
This contention is based upon the theory that so long as the manufacturer sells only to the dealer or middleman he is a stranger to the consumer; there is no contractual relationship to base a duty upon. It is said that the dealer may sue the manufacturer and that the consumer may sue the dealer, but that the consumer cannot sue the manufacturer. In other words if the claim be well founded the middleman has an effective remedy, but he is not injured. The consumer is injured, but he cannot look to the wrongdoer and must sue the local dealer, who is likely to be irresponsible and is certainly free from fault.
And this contention has support in authority. It is unquestionably the rule in the case of many manufactured articles where the consequences of negligent manufacture cannot be followed down to their final results....
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... ... 537; Meshbesher v. Channellene Oil & Mfg. Co., 107 Minn. 104, 119 N.W. 428; Challis v. Hartloff, 136 Kan. 823, 18 P.2d 199; Tomlinson v. Armour & Co., 75 N.J.L. 748, 70 A. 314, 19 L.R.A.,N.S., 923; Salmon v. Libby, McNeill & Libby, 219 Ill. 421, 76 N.E. 573; Haley v. Swift & Co., 152 Wis ... 177, 74 N.E.2d 162; Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S.E. 152, 1 L.R.A.,N.S., 1178 ... In Ketterer v. Armour & Co., D.C., 200 F. 322, adopted in Davis v. Van Camp, supra, and Klein v. Duchess, supra [14 Cal.2d 272, 93 P.2d 804], the court said: ... ...
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...and unreasonable to say that only the man who bought the food would have a remedy for his sufferings. As said in Ketterer v. Armour & Co., D.C., 200 F. 322, 323: "The remedies of injured consumers ought not to be made to depend upon the intricacies of the law of sales. The obligation of the......
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