Heimsoth v. Falstaff Brewing Corp.

• Decision Date: 14 December 1953
• Docket Number: No. 5306,5306
• Citation: 116 N.E.2d 193,1 Ill.App.2d 28
• Parties: HEIMSOTH v. FALSTAFF BREWING CORP.
• Court: United States Appellate Court of Illinois

Page 193

116 N.E.2d 193

1 Ill.App.2d 28

HEIMSOTH v. FALSTAFF BREWING CORP.

No. 5306.

Appellate Court of Illinois, Fourth District.

Dec. 14, 1953.

John R. Sprague, Belleville, Gilbert Rosch, Granite City, for appellant.

McGlynn & McGlynn, East St. Louis, for appellee.

CULBERTSON, Justice.

This appeal arises from an action which was brought to recover damages occasioned by appellant, John Heimsoth (hereinafter called plaintiff), becoming ill from consuming a portion of a bottle of Falstaff beer, which contained a 'prophylactic latex.' At the trial with the jury, the Court below granted defendant's motion at the close of plaintiff's evidence to find defendant not guilty and judgment was entered on the directed verdict in favor of appellee, Falstaff Brewing Corporation (hereinafter called defendant). The sole question before us is whether or not the Court properly directed a verdict at the close of plaintiff's case.

A motion for directed verdict presents the single question of whether there is any evidence fairly tending to prove plaintiff's case, and the Court on such motion should not weigh the evidence or consider its preponderance. Blumb v. Getz, 366 Ill. 273, 8 N.E.2d 620; Peters v. Peters, 376 Ill. 237, 33 N.E.2d 425. The evidence must be regarded in its aspect most favorable to the plaintiff against whom the motion is directed. Mitchell v. Louisville & N. R. Co., 375 Ill. 545, 31 N.E.2d 965; shutan v. Bloomenthal, 371 Ill. 244, 20 N.E.2d 570.

A bottling company impliedly warrants to the public that the product it sells when it leaves the control of the bottling company is fit for human consumption. Williams v. Paducah Coca-Cola Bottling Co., Inc., 343 Ill.App. 1, 98 N.E.2d 164; Patargias v. Coca-Cola Bottling Company, 332 Ill.App. 117, 74 N.E.2d 162; 1951 Illinois Revised Statutes, Chapter 56 1/2, Paragraphs 7, 8 and 41.

The purchaser of food from the seller, in view of the implied warranty of quality in the sale of food, has a remedy either as against the person from whom the food was last purchased, or against any prior seller, or the producer of the article. Williams v. Paducah Coca-Cola Bottling Company, Inc., supra; Bowman v. Woodway Stores, Inc., 258 Ill.App. 307. If a customer, however, elects to fix a liability upon a remote seller he must assume the burden of proving that the condition of the food or the article at the time when it left the control of that remote seller was the same as immediately prior to its consumption, or that it had not been tampered with, or adulterated in the interim. That burden it has been stated, could be fulfilled in a case of the type before us, in one of two ways: (First) By proof that there was no reasonable opportunity for tampering with the bottle, in which case there would be an inference that the bottle was in the same condition as when it left the manufacturer's control; and, (secondly) If the evidence disclosed that there was a reasonable opportunity for tampering with the bottle, by proof that there actually was no tampering or adulteration. Williams v. Paducah Coca-Cola Bottling Co., Inc., supra. The evidence on these issues may be direct or circumstantial, of necessity. Williams v. Paducah Coca-Cola Bottling Co., Inc., supra. There is no requirement that the plaintiff prove his case beyond a reasonable doubt, or exclude every possible hypothesis suggesting a cause other than negligence. The maximum requirement is that there be a preponderance of the evidence that the defendant breached its warranty and that the breach resulted in the injury. Coca-Cola Bottling Co. v. Munn, 4 Cir., 99 F.2d 190.

The evidence presented by plaintiff in the case before us showed that the defendant Brewing Company had a brewery in St. Louis, Missouri; that the bottle of beer which was the subject of the action left defendant's control when it was delivered to Murdock Distributing Company, which had a branch in East St. Louis, Illinois, about one block from the Riedel Tavern. The Riedel Tavern was the one of the Murdock Distributing Company's customers. The beer was picked up by the Murdock Company in one of its own tractor-trailers. These trucks were all closed, van bodies, with doors on them, and when the beer is loaded on the trucks it is the practice to keep the doors locked. The beer was then taken six miles from the defendant Brewing Company to the Murdock place of business in East St. Louis, in the locked vans. Thereafter, the beer was taken to the Murdock Distributing Company's premises and placed in a warehouse in charge of the manager, which warehouse is kept under lock and key when no one is there, and under the supervision of the employees of Murdock when it is not locked. The manager of the warehouse testified that none of the Falstaff beer which was in the warehouse had ever been tampered with in his presence. The manager, of course, had no independent recollection of the particular bottle of beer. There was no specific evidence as to how long the beer had been in the possession of the Murdock Distributing Company. Falstaff beer was delivered at the Ricdel Tavern and taken downstairs by Mr. Riedel. The beer was never stored on the street floor of the Riedel tavern.

On April 2, 1951 beer, including the particular bottle of beer in question, was brought up from the basement by Riedel. The beer was put in a cooler-box by Riedel, underneath the bar. From 4:00 p. m. to 10:00 p. m. on April 2, 1951, a Phil Lendfried was the bartender at the bar. He testified he had not tampered with the bottle in question and no one else tampered with the bottle. He also testified that he had been a bartender for nine years and had dispensed thousands of bottles of beer, and knew the difference between flat beer and beer with life in it, and stated that if the cap comes off with a pop the beer has life in it, but if the cap comes off easily and there is no foam the beer is dead, or flat, and that beer which had been opened would be flat. This same observation was...