Aetna Ins. Co. v. Amelio Bros. Meat Co.

• Decision Date: 26 April 1989
• Docket Number: No. 87-0520,87-0520
• Citation: 538 N.E.2d 707,131 Ill.Dec. 332,182 Ill.App.3d 863
• Parties: , 131 Ill.Dec. 332 AETNA INSURANCE COMPANY, as Subrogee of Frankenthal International, Ltd., Plaintiff-Appellant, v. AMELIO BROTHERS MEAT COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 707

538 N.E.2d 707

182 Ill.App.3d 863, 131 Ill.Dec. 332

AETNA INSURANCE COMPANY, as Subrogee of Frankenthal International, Ltd., Plaintiff-Appellant, v. AMELIO BROTHERS MEAT COMPANY, Defendant-Appellee.

No. 87-0520.

Appellate Court of Illinois First District, Third Division.

April 26, 1989.

Garretson & Santora, Chicago (Keil M. Larson, of counsel), for plaintiff-appellant.

Justice RIZZI delivered the opinion of the court:

Plaintiff-appellant, Aetna Insurance Company (Aetna), appeals from a judgment of the circuit court of Cook County entered in favor of defendant-appellee Amelio Brothers Meat Company (Amelio Bros.). On appeal, plaintiff argues that the trial court's finding that defendant was not liable under either negligence, strict liability, or Uniform Commercial Code theories is against the manifest weight of the evidence. We affirm.

On March 3, 1982, Aetna's insured, Frankenthal International, Ltd. (Frankenthal), a meat brokerage company, contracted with Amelio Bros. for the purchase of 40,000 pounds of 90 percent lean, fresh frozen, boneless pork. The purchase order specified that the product was to be packed in "poly-free, staple-free cartons," which means that the boxes were to be wax lined and sealed without staples. The order further stated that the "seller warrants that the product will be merchantable, [and] ... free from all defects of material and workmanship * * *."

On March 4, 1982, Frankenthal contracted with Gerber Food Products Company (Gerber), for the resale of Amelio Bros.' frozen pork. On March 25, 1982, Gerber accepted delivery of Amelio Bros.'s pork. The frozen pork was stored in Gerber's freezer. On April 21, 1982, Gerber removed the pork from the freezer and began to process it for inclusion in toddler sticks, a finished baby food product. Later that day, Gerber inspectors discovered corrugated cardboard protruding from the ends of the toddler sticks. The laboratory service manager investigated the problem and discovered that some of the boxes of frozen pork purchased from Amelio Bros. had corrugated cardboard imbedded in the bottom. Gerber notified Frankenthal on April 22, 1982, and Frankenthal informed Amelio Bros.

Gerber destroyed 986 cases of contaminated toddler sticks and submitted a claim to Frankenthal for their costs of $7,321.05. Frankenthal sought payment from Amelio Bros., but payment was refused. Thereafter, Aetna, on behalf of its insured, Frankenthal, paid Gerber $7,321.05 in satisfaction of its claim. Aetna then filed a complaint against Amelio Bros. alleging that the pork sold to Gerber was unwholesome, poisonous, unfit for human food, and tainted by cardboard fiber. Aetna's complaint seeks reimbursement of damages paid to Gerber. Following a bench trial, the court entered judgment in favor of Amelio Bros. and against Aetna and its insured, Frankenthal. This appeal followed.

In a bench trial, the trial judge, as the trier of fact, is in a superior position to determine the credibility of the witnesses and the weight to be given their testimony. Magnone v. Chicago & Northwestern Transportation Co. (1984), 126 Ill.App.3d 170, 176, 81 Ill.Dec. 459, 464, 466 N.E.2d 1261, 1266. A reviewing court will not substitute its judgment unless an opposite conclusion is clearly evident. Nemeth v. Banhalmi (1984), 125 Ill.App.3d 938, 962, 81 Ill.Dec. 175, 192, 466 N.E.2d 977, 994. Further, a decision is not against the manifest weight of the evidence where the court's decision is supported by the evidence. Misch v. Meadows Mennonite Home (1983), 114 Ill.App.3d 792, 803, 70 Ill.Dec. 754, 761, 449 N.E.2d 1358, 1365.

The three theories under which the plaintiff in the instant case attempted to recover are (1) negligence; (2) products-liability and (3) breach of warranty. In a negligence action, the plaintiff must establish that defendant had a duty to conform to a certain standard of conduct established by law, that defendant failed to meet that standard by a negligent act and that their failure was the cause of plaintiff's injuries. Moore v. Hill (1987), 155 Ill.App.3d 1, 4, 107 Ill.Dec. 945, 947, 507 N.E.2d 1314, 1316. In a products-liability matter, the...