Salmon v. Libby, McNeill & Libby

• Decision Date: 20 December 1905
• Citation: 76 N.E. 573,219 Ill. 421
• Court: Illinois Supreme Court
• Parties: SALMON v. LIBBY, McNEILL & LIBBY.

219 Ill. 421

76 N.E. 573

SALMON

v.LIBBY, McNEILL & LIBBY.

Supreme Court of Illinois.

Dec. 20, 1905.

Error to Appellate Court, First District.

Action by Mary N. Salmon, executrix, against Libby, McNeill & Libby. Judgment for defendant was affirmed by the Appellate Court (114 Ill. App. 258), and plaintiff brings error. Reversed.

Rehearing denied February 21, 1906.

Merriam & Phelps (J. W. Merriam, of counsel), for plaintiff in error.

Albert H. & Henry Veeder and Louis O. Ehle, for defendant in error.

This was an action on the case to recover damages for the death of the plaintiff's testator, caused, as it was alleged, from eating a piece of mince pie made from mince-meat which was poisonous and destructive to human life, and which mince-meat was prepared, put up in a package, and sold to the trade by the defendant, and which in the due course of business passed through the hands of a wholesale dealer, a retail dealer, and came into the hands of one Sarah E. Hoffman, in the state of Kansas, and was made by her into a pie, of which the plaintiff's testator there are, and in consequence of which he died. The original declaration contained three counts. A demurrer was sustained thereto, whereupon, and more than two years after the cause of action accrued, an amended declaration was filed, to which a demurrer was also sustained. Afterwards a second amended declaration was filed, to which the general issue and two pleas, which averred the cause of action stated in the second amended declaration did not accrue within two years, were filed. Thereupon the general issue was withdrawn, and the court overruled a demurrer to the pleas of the statute of limitations, and plaintiff, having elected to stand by her demurrer, the case was dismissed at plaintiff's costs, which judgment was affirmed by the Appellate Court for the First District, and a writ of error has been sued out from this court to review the judgment of the Appellate Court.

The action was brought under a statute of the state of Kansas, which is set out in each count of the original declaration, and which permits a recovery by the personal representative of the deceased person for the benefit of the widow and children, if any, or next of kin of such person, when his death has been caused by the wrongful act or omission of another. The original declaration counted upon the negligence of the defendant, and it is not alleged in either count of said declaration that the defendant knew the...