Kirk v. Stineway Drug Store Co., Gen. No. 48683

• Decision Date: 09 January 1963
• Docket Number: Gen. No. 48683
• Citation: 38 Ill.App.2d 415,6 A.L.R.3d 1,187 N.E.2d 307
• Parties: , 6 A.L.R.3d 1 Lottie KIRK, Plaintiff-Appellant, v. STINEWAY DRUG STORE COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 307

187 N.E.2d 307

38 Ill.App.2d 415, 6 A.L.R.3d 1

Lottie KIRK, Plaintiff-Appellant, v. STINEWAY DRUG STORE COMPANY, Defendant-Appellee.

Gen. No. 48683.

Appellate Court of Illinois, First District, Third Division.

Jan. 9, 1963.

Rehearing Denied Jan. 31, 1963.

John G. Phillips and Norman Peters, Chicago, John G. Phillips, Chicago, of counsel, for appellant.

Hinshaw, Culbertson, Moelmann & Hoban, Chicago, Oswell G. Treadway, Chicago, of counsel, for appellee.

SCHWARTZ, Justice.

This is an appeal from a judgment on a directed verdict entered in favor of defendant at the close of plaintiff's evidence in a suit for personal injuries sustained as a result of a fall from a household stepladder purchased from defendant. The trial court directed a verdict on both counts of the complaint. Count I alleged a breach of implied warranties of fitness for use and merchantability, as prescribed by the Sales Act (Ill.Rev.Stat.1961, ch. 121 1/2, § 15). Count II was based on common law negligence in the sale of a defective stepladder.

A motion for a directed verdict presents a single question--whether there is in the record any evidence which, standing alone and taken with all intendments most favorable to the party resisting the motion, tends to prove the material elements of a case. This principle has been so frequently stated, there is no need to cite cases in support of it. We cannot consider contradictions or inconsistencies in the testimony. So examined, the following are the essential facts.

On April 28, 1960, plaintiff, a 67 year old woman, was in the process of moving and had need of a stepladder. She entered one of the stores of defendant and asked a salesclerk whether they had any small ladders. He solicited the help of another clerk and one of them went to see if they had such a ladder in the stockroom. Some time thereafter oen of the clerks came to plaintiff with an open carton and pulled out of it approximately one-third of a red and white metal stepladder, the color plaintiff had said she wanted. Plaintiff said it was satisfactory, bought it and took it home, keeping it in the carton until she moved. On May 5, 1960, having moved, she used the ladder twice, without incident. On the third instance the ladder collapsed and plaintiff fell. It is apparent from an examination of the ladder, which was placed in evidence and is part of the record, that there are imperfections in its construction, which the trial court described as follows:

'The condition in this case indicates that the rivet hole's loose because it is not hooking that step now, but in that point where it is not hooking that step, there is no safety cleat hook on that and that is the only one missing; so they apparently failed to put the safety cleat on there.'

Trial counsel for defendant said: 'The rivet broke, that's what caused the step to give away.' In addition, there were other apparent defects.

Considering, first, Count I based on breach of warranties, the relevant portions of the Sales Act relied on are as follows:

'(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is as [an] implied warranty that the goods shall be reasonably fit for such purpose.

'(2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.

'(3) If the buyer has examined the goods, there is no implied warranty as regards defects which such an examination ought to have revealed.' (Ill.Rev.Stat. ch. 121 1/2, § 15(1-3) (1961)).

The factual requirements of an implied warranty of fitness for a particular purpose are that the buyer makes known to the seller the purpose for which an article was purchased and that it appears that he relied on the seller's skill or judgment. Plaintiff did not expressly state to the seller the precise purpose for which she purchased the ladder. However, a stepladder is purchased for the purpose of elevating a person in order that he may perform a task or reach an object. As the trial court said, it might be used for the purpose of a flowerpot stand, but certainly no one would buy it for such purpose. The degree of particularity which should be required in such a case is dependent on the nature of the article and its general purpose. A household ladder is in particularity a ladder to be used for a purpose within the house. That purpose must be considered to have been impliedly made known to the seller by the very nature of the article and by the circumstances surrounding the transaction. In Stonebrink v. Highland Motors, Inc., 171 Or. 415, 137 P.2d 986 (1943), the plaintiff had purchased a jack from the defendant. The court held that the seller knew the particular purpose, '* * * indeed, the only purpose--for which the jack was purchased.' In Ringstad v. I. Magnin & Co., 39 Wash.2d 923, 239 P.2d 848 (1952), the language of the sales act was similar to that of the Illinois act. The court held that wearing apparel is acquired to be worn and that although the plaintiff did not explicitly so state, her purpose must have been known to the seller. In the instant case, the first requisite of plaintiff's case, that the seller knew the purpose for which the article had been sold, is sufficiently established.

The next question is whether there was evidence to show that plaintiff here relied on the seller's skill or judgment. As to this there is no direct evidence. There seldom is when reliance is involved. The issue of reliance involves an inquiry into a state of mind. It cannot be proved by direct evidence, except as a witness might testify that he did so rely, and such testimony has been permitted. In Michaelson v. Hopkins, 38 Wash.2d 256, 228 P.2d 759 (1951), the trier of facts received such testimony but held otherwise, as a jury might do in the instant case. Plaintiff in the case before us did not herself directly testify that she relied upon defendant. We consider better proof to be found by inferences drawn from circumstances surrounding the transaction. Plaintiff testified that in her conversation with defendant's salesclerks she specified no requirements, except that the ladder should be a small one and that she wanted it to be red and white. She asked no questions as to its structure nor did she inspect it. She was 67 years old, as we have said, and used a ladder only in connection with her household requirements. The trial court apparently thought the evidence supported the conclusion that plaintiff relied upon defendant, saying: 'I think under these circumstances where you have a woman of this age that undoubtedly has no training in mechanics she has to rely on the seller.' There was adequate evidence on this point for submission of the issue to the jury.

Defendant contends, however, that where a buyer has an opportunity to inspect, he cannot rely upon the skill or judgment of the seller. The statute (Ill.Rev.Stat. ch. 121 1/2, § 15(3), (1961)), supra, states that if the buyer has examined the goods, there is no implied warranty as regards defects which such an examination ought to have revealed. Defendant would therefore enlarge the language of the act by equating opportunity to examine with examination itself. Defendant cites Mayer v. Bar Steels Company, 340 Ill.App. 414, 91 N.E.2d 455 (Abst.); Bansbach v. Allied Machine & Welding Co., 334 Ill.App. 76, 78 N.E.2d 344 (Abst.); People v. Western Picture Frame Co., 368 Ill. 336, 13 N.E.2d 958; McCormick v. Hoyt, 53 Wash.2d 338, 333 P.2d 639 (1959). In the Mayer case the court found that there had in fact been inspection. In Bansbach v. Allied Machine & Welding Co., and in People v. Western Picture Frame Co., there had been inspection of some of the merchandise. In the McCormick case the court was dealing with a warranty of merchantability. What it said with respect to warranty of fitness for a particular purpose was dicta. There may be circumstances under which opportunity to examine could be equated with examination of the article itself, but that is not a proper condition to be applied in the case before us. It is our conclusion that the trial court erred in directing a verdict in favor of defendant on the issue of warranty of fitness for purpose, and we will proceed to consider whether there was a warranty of merchantability, also alleged in County I.

A warranty of merchantability has been defined as meaning 'that the thing sold is reasonably fit for the general purpose for which it is manufactured and sold.' Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960); Mead v. Coca Cola Bottling Co., 329 Mass. 440, 108 N.E.2d 757 (1952). It is applicable only when goods are bought by description from a seller who deals in such goods. It is not a sale by description when the goods are present and there is an opportunity to inspect. Grass v. Steinberg, 331 Ill.App. 378, 73 N.E.2d 331. In that case the buyer had an opportunity to and did inspect, but it is clear that the court would have found no warranty of merchantability if the buyer had the opportunity, but did not inspect. In Adams v. Peter Tramontin Motor Sales, Inc., 42 N.J.Super 313, 126 A.2d 358, p. 364 (1956), the court said:

'The term sale by description strictly means an executory sale where the article is not present, but the term has been broadened to include all sales, whether or not the goods are present, where there is no adequate opportunity for inspection.'

In the instant case plaintiff had an opportunity to inspect the ladder. It is our conclusion that plaintiff did not make a case for breach of warranty of merchantability.

We have now to consider whether plaintiff has made a case on the common law negligence...