Cohan v. Associated Fur Farms

• Decision Date: 03 June 1952
• Citation: 53 N.W.2d 788,261 Wis. 584
• Parties: COHAN, v. ASSOCIATED FUR FARMS, Inc. et al.
• Court: Wisconsin Supreme Court

Page 788

53 N.W.2d 788

261 Wis. 584

COHAN, v. ASSOCIATED FUR FARMS, Inc. et al.

Supreme Court of Wisconsin.

June 3, 1952.

Action brought by Charles Cohan against Associated Fur Farms, Inc., which will be referred to as 'Associated'. Upon motion of the Associated, Armour and Co., which will be referred to as 'Armour' was interpleaded as defendant. Armour demurred generally to the amended complaint of the plaintiff. The demurrer was sustained and judgment dismissing plaintiff's amended complaint entered on May 29, 1951. Plaintiff appeals from that judgment. Armour moved for summary judgment against Associated which motion was granted on October 10, 1951. Associated appeals from that judgment. Associated moved for summary judgment against plaintiff which motion was denied on October 10, 1951. Associated appeals from that order. The material facts will be stated in the opinion.

Arnold W. Mulhern, New Holstein, and Gold & McCann, Milwaukee, for Assoc. Fur Farms.

Weinzelbaum & Randolph, Chicago, Ill., for Cohan.

Henry C. Friend and Harry S. Sicula, Milwaukee, of counsel, for appellants.

Welsh, Trowbridge, Wilmer & Bills, Green Bay, for respondent.

GEHL, Justice.

Armour, a processor of food products, on or about February 26, 1947 sold to Associated for use by Associated in the feeding of its own mink and for resale to other mink breeders 168 boxes of frozen pork livers. It seems to have been understood by all parties that the livers were to be included with other ingredients in the preparation of mink feed. Associated, after mixing the pork livers with other ingredients, fed some of it to its own mink and sold a portion of the mixture to the plaintiff, also a mink breeder.

The plaintiff brought this action against Associated claiming that the pork livers were contaminated as a result of which he sustained the loss of a considerable number of mink. After the interpleader of Armour plaintiff served an amended complaint seeking recovery on account of his loss against both Associated and Armour. Associated in a cross-complaint seeks recovery over agaisnt Armour in the event that it be held that it is responsible to plaintiff.

In the complaint it is alleged that from February, 1947 to November, 1947 the plaintiff purchased from the defendant certain food mixture containing approximately 10% of pork livers; that said mixture was bought for the purpose of feeding it to plaintiff's mink; that Associated knew that the mixture was purchased for that purpose and advised plaintiff as to the proper method of feeding it; that the pork livers were represented by Associated as meat fit for consumption by mink; that plaintiff bought the mixture in reliance upon the skill and judgment of Associated; that as a result of such feeding plaintiff lost a substantial number of mink; that the mixture was unwholesome, contaminated and diseased and not usable as animal food as warranted by Associated; on information and belief that Associated at the time of the sale of the mixture was aware of, or in the exercise of ordinary care, should have been aware of the condition of the mixture; that plaintiff notified Associated that the mixture had caused loss to him and made demand upon it for reimbursement; that such notice was given by plaintiff after he had ascertained that Associated had recovered damages from Armour on account of the feeding by Associated of the mixture.

After the interpleader of Armour the plaintiff filed an amended complaint, realleging the allegations of the original by reference, and alleging further that on or about April 19, 1949 he first discovered that the livers used by him had been supplied by Armour; that he then notified Associated that the livers were contaminated and had caused damage to the plaintiff; that he then made demand upon Associated and Armour for compensation for the loss, sustained by him as a result of the feeding of the mixture; that Armour had notice that Associated had purchased the pork livers for mink feed and had sold the livers as animal food and particularly as food for fur-bearing mink; that Armour sold the livers as meat which was fit for such purpose; that Associated in reliance upon the skill of Armour as a seller and processor of meats and its warranties relative thereto, used the livers as food for its mink and sold a portion of the mix containing such pork livers to the plaintiff; that plaintiff fed the mixture to his mink as a result of which and of the contaminated condition of the pork livers he lost a considerable number of his mink; that by reason of the breach of warranty and 'negligent conduct of the above defendant and interpleaded defendant' he has sustained damage in the sum of $50,692.30. Judgment is demanded against both defendants.

Demurrer

Armour demurred generally to the amended complaint upon the ground that it fails to allege privity of contract between it and plaintiff. The demurrer was sustained. We construe the amended complaint as pleading a cause of action only for breach of warranty. To permit recovery for breach of warranty by an ultimate buyer against the manufacturer or processor of an article of food there must be privity of contractual relations between them. Prinsen v. Russos, 194 Wis. 142, 215 N.W. 905; 22 Am.Jur. 890. It is lacking here, and therefore the amended complaint does not state a cause of action for breach of warranty.

Plaintiff contends that he may recover upon the ground of Arnold's negligence and cites as authority for his contention such cases as Hasbrouck v. Armour & Co., 139 Wis. 357, 121 N.W. 157, 23 L.R.A.,N.S. 876 and Haley v. Swift & Co., 152 Wis. 570, 140 N.W. 292. He might recover upon that ground had he pleaded a cause of action for negligence. To permit recovery by a third person against a manufacturer of food it must be shown that the injury is one which might have been reasonably foreseen by the manufacturer in the exercise of ordinary care. Hasbrouck v. Armour & Co., supra, Haley v. Swift & Co., supra. No allegation setting forth such claim is found in the amended complaint. There is no suggestion in the pleading that negligence on the part of Armour is relied upon except the incidental and cursory statement contained in paragraph 12: 'That by reason of such breach and negligent conduct * * * plaintiff sustained damages.' The amended complaint does not state a cause of action for common law negligence.

Plaintiff contends that he may recover from Armour by virtue of the provision of sec. 97.55, Stats. which provides:

'No person shall sell * * * for use as food, * * * any unwholesome, * * * tainted, putrid or measly meat, * * * knowing or having good reason to believe that such meat is as above described, * * *.'

The statute is not applicable. The term 'food' as it is there used means articles 'used for food or drink or condiment by man.' Sec. 97.01, Stats.

He contends also that the provisions of sec. 94.72(14)(b), Stats. provide him with a remedy. It is there provided that

'Any * * * corporation or person who shall sell, * * * or distribute any feeds mixed or adulterated with any substance * * * injurious to the health of live stock * * * shall be deemed guilty of a misdemeanor * * *.'

A violation of the statute is not pleaded. To state a cause of action for violation of the statute it must be alleged that the feeds were 'mixed or adulterated' with an injurious substance. There is no allegation in the amended complaint that Armour mixed or adulterated the pork livers. The statute affords plaintiff no right to recover.

In his memorandum opinion the trial judge stated 'that the demurrer should be sustained without leave of amendment, because the court fails to see where an amendment could alter the facts, which appear to be undisputed.' Leave to plead over was not granted. Although there was no appeal from that part of the order the determination is reviewable under the provisions of sec. 274.34, Stats. Milwaukee County v. Milwaukee Western Fuel Co., 204 Wis. 107, 235 N.W. 545.

We consider that if the rule of some of the cases to which we have referred should be extended so as to permit recovery for injury to animals as well as to humans in a negligence action the court should have granted leave to plaintiff to plead over; there was an abuse of discretion which fact is indicated by the reason given for the court's refusal.

In the cases to which we have referred recovery was permitted by a subvendee for the negligence of the manufacturer or processor resulting in injury to man. This court has not been called upon to determine whether that principle should be extended to include damage to animals. The question was not considered in McAleavy v. Lowe, 259 Wis. 463, 49 N.W.2d 487, as is claimed by plaintiff. A statement contained in Marsh Wood Products Co. v. Babcock & Wilcox Co., 207 Wis. 209, 226, 240 N.W. 392, 399, would indicate an inclination to so extend the liability. The court says:

'* * * at least where the article, if negligently manufactured, will be imminently dangerous to human safety, the liability should extend to property damage in all cases where a causal connection can be established between he defect which constitutes the article a menace and the property damage.'

We do not consider it necessary to conclude that in cases in which danger to human life was involved liability was imposed solely because of the character or subject of the injury. We prefer to read out of them the deduction that recovery should be permitted because the manufacturer was negligent in the performance of a duty imposed by law. When it has been established that the manufacturer has violated the duty and that his violation has caused injury or damage to the subvendee, there is no logical reason for saying that he may recover for an injury to his person but that he may not for an injury to his animals. Ellis v. Lindmark, 177 Minn. 390, 225 N.W. 395. If negligence can be established plaintiff should have recovery...