Kobeckis v. Budzko

• Decision Date: 04 January 1967
• Citation: 225 A.2d 418
• Parties: Edward B. KOBECKIS, Plaintiff, v. Richard BUDZKO, d/b/a Dick's Corner Store, Defendant and Third-Party Plaintiff, v. B. D. STEARNS, INC., Third-Party Defendant and Fourth-Party Plaintiff, v. DUBUQUE PACKING COMPANY, Fourth-Party Defendant.
• Court: Maine Supreme Court

Page 418

225 A.2d 418

Edward B. KOBECKIS, Plaintiff, v. Richard BUDZKO, d/b/a Dick's Corner Store, Defendant and Third-Party Plaintiff, v. B. D. STEARNS, INC., Third-Party Defendant and Fourth-Party Plaintiff, v. DUBUQUE PACKING COMPANY, Fourth-Party Defendant.

Supreme Judicial Court of Maine.

Jan. 4, 1967.

Basil A. Latty, Franklin F. Stearns, Jr., Portland, for plaintiff.

William B. Mahoney, and Hollis J. Allen, Portland, for Richard Budzko.

Edward J. Berman, Portland, for B. D. Stearns, Inc.

Herbert H. Sawyer, Portland, for Dubuque Packing Co.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, RUDMAN and DUFRESNE, JJ.

MARDEN, Justice.

On appeal from summary judgment for defendants.

The plaintiff complained breach of implied warranty of merchantable quality and fitness for human consumption of pork purchased from defendant on or about April 15, 1961, and from the consumption of which he alleged resultant trichinosis. ¹ Under third party practice, provided by Rule 14 M.R.C.P., defendant Budzko impleaded defendant B. D. Stearns, Inc., as one responsible to him if liability were imposed upon him and Stearns, in turn, impleaded defendant Dubuque Packing Company, upon the same basis.

From pre-trial, and recorded in the pre-trial order, is a stipulation in which all parties joined:

'That the Plaintiff claims that his evidence will establish that he became infected with trichinosis as a result of tasting pork which is the subject of the present controversy, uncooked and in its raw state. It is the Plaintiff's contention that it is the custom in the making of Polish sausage to taste it for flavoring periodically in its raw state, which custom, plaintiff alleges, was well known to the Defendant.' ^1a

Seasonably thereafter defendant Budzko filed a motion for summary judgment (Rule 56 M.R.C.P.) upon the ground that the pleadings and stipulated facts showed that he was entitled to judgment as a matter of law. Upon the same day third party defendant Stearns and fourth party defendant Dubuque filed a similar motion upon the ground that plaintiff was not entitled to judgment against Budzko as a matter of law, and consequently no judgment could be granted against either of them. Upon these motions, summary judgment for all defendants was granted and appeal followed.

Plaintiff briefs his position as based upon Section 15(1) of the Uniform Sales Act (then Chapter 185 R.S.1954, now included within the Uniform Commercial Code under 11 M.R.S.A. § 2-315).

Section 15, reads as follows:

'Sec. 15. Implied warranties of quality.-Subject to the provisions of this chapter and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:

'I. 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 an implied warranty that the goods shall be reasonably fit for such purpose.'

This section, when applicable, imposes a warranty of 'fitness for the disclosed purpose.' An implied warranty of 'merchantable quality' is imposed under Section 15 (2) where goods are bought by description. Section 15(2) is not in issue.

This statute changed the common law rule of caveat emptor, except as to title, in Maine, to a rule imposing an implied warranty of quality under specified conditions. This statute 'measures the buyer's right of recovery and the seller's liability.' Ross v. Porteous, Mitchell & Braun Co., 136 Me. 118, 122, 3 A.2d 650, 653.

'In order to recover upon an implied warranty (under this statute) * * * the burden is upon the plaintiff to establish (1) that he made known to the seller the particular purpose for which the goods were required, (2) that he relied upon the seller's skill or judgment, (3) that he used the goods purchased for the particular purpose which he made known to the seller, (4) that the goods were not reasonably fit for the purpose disclosed to the seller, and (5) that he suffered damage by breach of the implied warranty.' Ross v. Diamond Match Company, 149 Me. 360, 362, 102 A.2d 858, 859.

Testing, by the statute, plaintiff's position in the light most favorable to him and by combining his complaint with the pre-trial stipulation, it is represented that on the date in question he purchased pork from the defendant Budzko 'informing defendant that such was to be used in making sausage for human consumption' (from complaint) and 'that it is the custom in the making of Polish sausage to taste it (pork) * * * in its raw state, which custom * * * was well known to the defendant (from pre-trial order).' An implication, under the statute, from the fact of purchase, that the pork was intended for human consumption is logically established. Silverman v. Swift & Co. (1954) 141 Conn. 450, 107 A.2d 277, (3, 4), 279; Baum v. Murray (1945), 23 Wash.2d 890, 162 P.2d 801 (4), 804; 'Such a transaction standing by itself permits no contrary inferences' Rinaldi v. Mohican Co. (1918) 225 N.Y. 70, 121 N.E. 471 (5-7), 472. See also Sams v. Ezy-Way Foodliner Co., 157 Me. 10, 21, 170 A.2d 160. Here the buyer expressly made known that the 'goods' were purchased for human consumption.

From the allegation that the plaintiff informed the defendant that he proposed to use the pork for the making of sausage for human consumption he continues by innuendo to charge the defendant with additional knowledge that a) he meant 'Polish' sausage and b) that the making of such sausage customarily involved the ingestion by plaintiff of some of the pork in its raw state and that from such pleading the law implies, and the defendant is bound to infer, the 'particular purpose' for which the pork was required. Plaintiff seeks to charge the defendant with the inference that because he was buying pork for sausage he meant only 'Polish' sausage, with the concomitant custom of tasting it uncooked. The only fact in the record from which the defendant Budzko could infer that the purchaser contemplated making 'Polish' sausage, is plaintiff's name, which, while the name may be Polish, leaves the pleading only as a basis for speculation. The significance of this deficiency goes to the particular purpose which plaintiff made known to Budzko. A statutorily imposed implication that the pork was to be used for human consumption is one thing, but that it was to be used for the making of Polish sausage in the process of which defendant knew that it would be tasted,-and swallowed, uncooked is an entirely different matter.

'When the buyer makes known to the seller the manner in which the goods are to be used for the particular purpose for which they are required, such manner of use forms a part of the disclosed particular purpose for which the goods are required. In such case the implied warranty that the goods shall be reasonably fit for the disclosed purpose is conditioned upon their use in the manner disclosed by the buyer to the seller.' Ross, supra, 149 Me. at 362, 102 A.2d at 859.

As applied to raw pork, see Cheli v. Cudahy Bros. Co. (1934) 267 Mich. 690, 255 N.W. 414 (6-8), 416.

There is nothing in the record to establish by implication that the plaintiff made known to Budzko that he required this pork for human consumption in its raw state. The plaintiff-buyer did not expressly or by implication, make known to the defendant-seller the particular (abnormal) purpose for which he required the pork. This deficiency in the record per se supports the summary judgment.

This is a case of first impression and we prefer to dispose of it on broader grounds. Accepting the inference with which defendant was charged, that the plaintiff made known to the defendant that he required the pork for human consumption, and assuming that the buyer-plaintiff relied on the seller-defendant's skill or judgment on choice of the meat, as to which we will comment later, and that there is an implied warranty that the goods shall be reasonably fit for the purpose, what then is the extent of the warranty implied by the terms of the Uniform Sales Act? The statute imposes a warranty not that the goods shall be fit for the purpose disclosed by implication, but that the goods shall be reasonably fit for such purpose.

Imposing this warranty as applied to pork and pork products sold in an uncooked state, the unique character of raw pork as it pertains to the defect under consideration must be considered.

The footnote, supra, has described the nature of the trichinosis infection in man and one's first reaction is that it should be the responsibility of the retailer-distributor-packer chain in merchandising to see that pork should enter the market free of the trichinae. A great deal has been written in government publications, law reviews, medical journals and in decided cases, of which the footnote is illustrative ² to expose, teach and adjudicate the danger of trichinae in rea pork. It has for a number of years been clear that as a practical matter there is no way to assure the public that raw pork is free of the trichinae. The nematodes are microscopic in size and testing pork for the presence of the infection requires microscopic examination of the meat.

The presence of the trichinae in a particular sample establishes only that the infection is present in that specimen and the infection may or may not exist elsewhere in the body of that particular animal. Conversely the absence of the trichinae in a given specimen does not establish that the infection is not present elsewhere in the body of the animal. To establish that a given pork carcass is free from trichinae would involve examination of the entire subject matter, the result of which would leave no saleable meat.

Because of this fact, the federal government as early as 1906 ceased to...