Jackson v. Nestle-Beich, Inc.

• Decision Date: 28 March 1991
• Docket Number: INC,NESTLE-BEIC,No. 5-89-0578,5-89-0578
• Citation: 569 N.E.2d 1119,212 Ill.App.3d 296
• Parties: , 155 Ill.Dec. 508, 14 UCC Rep.Serv.2d 736 Elsie M. JACKSON, Plaintiff-Appellant, v., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1119

569 N.E.2d 1119

212 Ill.App.3d 296, 155 Ill.Dec. 508,

14 UCC Rep.Serv.2d 736

Elsie M. JACKSON, Plaintiff-Appellant, v. NESTLE-BEICH, INC., Defendant-Appellee.

No. 5-89-0578.

Appellate Court of Illinois Fifth District.

March 28, 1991.

William A. Mudge, Lucco and Brown, Edwardsville, for plaintiff-appellant.

Marc A. Lapp, Burroughs, Rimpson, Hepler, Broom & MacDonald, Edwardsville, for defendant-appellee.

Justice CHAPMAN delivered the opinion of the court:

On approximately May 26, 1988, plaintiff bought a sealed can of "Katydids" from defendant. Katydids are a chocolate-covered pecan-caramel candy. Plaintiff bit into one of the candies and allegedly broke a tooth on a hard pecan shell that was embedded in it. Plaintiff filed a two-count complaint; Count I was based on a breach of warranty theory and Count II was based on products liability.

After limited discovery defendant filed a motion for summary judgment arguing that if the harmful substance in a product is one that is natural to the food, its presence does not support a claim on either a breach of warranty or strict liability basis. The trial court allowed defendant's motion in an order which stated in part:

"Plaintiff's theories are breach of warranty and that the product was unwholesome and unreasonably dangerous for inclusion of a pecan shell in a candy containing pecans. The Court believes that the law of the State of Illinois is such that a food product is not rendered unwholesome by reason of inclusion therein of a substance natural to an ingredient thereof. The Court might personally wish the rule to be different but finds the law to be as set forth above and such to be the law even after the Suvada case relied upon by the Plaintiff."

Plaintiff filed a timely appeal which challenges the continued viability of the foreign-natural doctrine in Illinois. We reverse.

The foreign-natural doctrine was apparently first announced some 55 years ago in the California case of Mix v. Ingersoll Candy Co., which involved an injury claimed as a result of the plaintiff's swallowing a sharp fragment of chicken bone in a chicken pie. The trial court's dismissal of plaintiff's complaint was affirmed on appeal:

"Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones. At least he cannot hold the restaurant keeper whose representation implied by law is that the meat dish is reasonably fit for human consumption, liable for any injury occurring as a result of the presence of a chicken bone in such chicken pie. In the case of Goetten v. Owl Drug Company [1936] , 59 P.2d 142, this day decided, we held that the application of the rule of implied warranty might impose a heavy burden upon the keeper of restaurants and lunch counters, but that considerations of public policy and public health and safety are of such importance as to demand that such obligation be imposed. This is true, but we do not believe that the onerous rule should be carried to absurd limits. Certainly no liability would attach to a restaurant keeper for the serving of a T-bone steak, or a beef stew, which contained a bone natural to the type of meat served, or if a fish dish should contain a fish bone, or if a cherry pie should contain a cherry stone--although it be admitted that an ideal cherry pie would be stoneless. The case of a chicken bone in a chicken pie is, in our opinion, analogous to the cited examples, and the facts set forth in the first count of the complaint do not state a cause of action." Mix v. Ingersoll Candy Co. (1936), 6 Cal.2d 674, 682, 59 P.2d 144, 148.

For some period of time the California courts followed Mix without question. (See Silva v. F.W. Woolworth (1938), 28 Cal.App.2d 649, 83 P.2d 76 (plaintiff denied recovery for turkey bone lodged in her throat when she ate a plate of roast turkey, vegetables and dressing, even though the bone was concealed in the dressing) and Lamb v. Hill (1952), 112 Cal.App.2d 41, 245 P.2d 316 (plaintiff denied recovery when injured by a fish bone in a dish of seafood mornay).) More recently the appellate courts of California seem to have split in their willingness to accept the Mix rationale. Evart v. Suli (1989), 211 Cal.App.3d 605, 259 Cal.Rptr. 535, involved a plaintiff who broke a tooth when she bit into a piece of bone in a hamburger. Evart interpreted Mix as applying only in situations in which it is a matter of common knowledge that the food in question occasionally contains the injury-causing substance and also noted that the food in Mix had not been put through a meat grinder. A different division of the California appellate court reached the opposite conclusion in Mexicali Rose v. The Superior Court of Alameda County (1989), 225 Cal.App.3d 1410, 262 Cal.Rptr. 750, cert. granted (1989), 264 Cal.Rptr. 683, 782 P.2d 1139, which involved a plaintiff who had a chicken bone lodge in his throat while consuming a chicken enchilada. Two members of the panel in Mexicali Rose held that,

"Compelled by stare decisis, we agree with petitioners that their demurrer should have been sustained." (225 Cal.App.3d 1410, 1412, 262 Cal.Rptr. 750, 751.)

Judge Poche concurred, but wrote separately because of his concern "with the present state of the chicken bone law."

"The problem is that Mix is wrongly decided in light of the modern law of products liability. That case is ripe for reconsideration by our Supreme Court. Until and unless that occurs I will explain to my luncheon companions why for sound legal reasons they should order a hamburger and pass up the chicken enchiladas." Mexicali Rose, 225 Cal.App.3d 1410, 1417-18, 262 Cal.Rptr. 750, 753-54 (Poche, J., concurring).

After this brief review of California's continuing problems with the foreign-natural doctrine, and in direct violation of Horace Greeley's admonition, we will now move east to examine Illinois' treatment of it. The only Illinois case to discuss the foreign-natural doctrine is Goodwin v Country Club of Peoria (1944), 323 Ill.App. 1, 54 N.E.2d 612, which involved the death of a woman who choked on a bone in a creamed chicken dish. Goodwin referred to what it considered to be the only four cases on the subject in the country at the time. Three of those cases held there was no liability for a natural object in food: Mix (chicken bone in chicken pie); Silva v. F.W. Woolworth Co. (1938), 28 Cal.App.2d 649, 83 P.2d 76, (turkey bone in dressing); and Brown v. Nebiker (1941), 229 Iowa 1223, 296 N.W. 366, (bone in pork chop). The only other case, Bonenberger v. Pittsburgh Mercantile Co. (1942), 345 Pa. 559, 28 A.2d 913, reversed a directed verdict for the defendant for injuries sustained as a result of ingesting a piece of oyster shell. Goodwin found Bonenberger unpersuasive and instead adopted the rationale of Mix:

"The instant case presents a situation involving the question of implied warranty of reasonable fitness of food for human consumption and whether such warranty is breached by the presence therein of a substance natural to the food being served, and not removed therefrom in the process of its preparation for consumption. * * * Modern conditions require that establishments serving food shall be operated in a sanitary way and furnish food that is wholesome and fit to be eaten. However, such rule should be construed and applied in a reasonable manner, taking into consideration the common experience of life. When viewed in this light, it must be conceded that practically all meat dishes, whether they consist of beef, pork, fish or fowl, do contain bones peculiar to the food being served." Goodwin, 323 Ill.App. at 8, 54 N.E.2d at 615.

The only other Illinois case that is similar to Goodwin was actually decided the day before Goodwin. Paolinelli v. Dainty Foods Manufacturers, Inc. (1944), 322 Ill.App. 586, 54 N.E.2d 759, involved the death of a child which resulted from the ingestion of a chicken bone. The foreign-natural doctrine was not actually discussed in Paolinelli since the court was primarily concerned with evidence as to the source of the chicken bone and other issues. The court resolved these issues in the plaintiff's favor, affirmed the award, and noted, albeit in passing, that:

"If the bone did not come from the jar of noodle soup mix, defendant cannot be held responsible. If the bone did come from the jar of noodle soup mix, the verdict of the jury should stand. If the bone came from the jar, that would be strong evidence that there was an omission on the part of defendant's servants to observe some of the precautions about which they testified as to the preparation and filling of the jars." Paolinelli, 322 Ill.App. at 597, 54 N.E.2d at 764.

The fact that there have been only three cases in Illinois in the last 50 years that were concerned with injuries caused by natural ingredients in food products suggests that the defendant may be overly concerned about the flood of litigation that refusing to recognize the foreign-natural doctrine might unleash. An examination of cases in other States reveals two things: (1) there has not been an overwhelming number of this type of case; and (2) the cases are presently about equally divided on the foreign-natural question with a possible slight trend toward its rejection. A nonexhaustive listing of cases follows:

Cases Continuing To Apply The Foreign-Natural Doctrine

California

Mix, Silva, Evart, Mexicali, and Lamb v. Hill (1952), 112 Cal.App.2d 41, 245 P.2d 316 (bone in chicken pie).

Georgia

Norris v. Pig'n Whistle Sandwich Shop, Inc. (1949), 79 Ga.App. 369, 53 S.E.2d 718 (piece of bone in barbeque pork sandwich).

Iowa

Brown v. Nebiker (1941), 229 Iowa 1223, 296 N.W. 366 (bone in pork chop).

Louisiana

Musso v. Picadilly Cafeterias, Inc. (La.Ct.App.1965), 178 So.2d 421 (cherry pit in a slice of cherry pie). Musso apparently presents a hybrid...