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Whitmer v. Schneble, 29 Ill.App.3d 659 (1975) 331 N.E.2d 115, 17 UCC Rep.Serv. 710

KeyCite Yellow Flag - Negative Treatment Disagreed With by Worrell v. Sachs, Conn.Super., February 8, 1989

29 Ill.App.3d 659 Appellate Court of Illinois,

Second District, First Division.

Sherry Lynn WHITMER, a minor, by her father and next friend, Edward Whitmer, Plaintiff,

v. Robert SCHNEBLE and Frances Schneble,

Defendants and Third-Party Plaintiffs-Appellants, v.

The HOUSE OF HOYT, INC., Third-Party Defendant-Appellee.

No. 74—93. |

June 26, 1975.

Synopsis Dog owners who were sued by child who was bitten by the dog filed third-party complaint against the seller of the dog. The Circuit Court, Winnebago County, William R. Nash, J., entered judgment in favor of seller and owners appealed. The Appellate Court, Hallett, J., held that there had been no express warranty that the dog was docile; that even if there had been such a warranty as to a dog's condition at the time of the sale, there was no breach by virtue of fact that dog bit the child some two and one half years later after having given birth to pups; that dog owners were charged with notice when they bought the dog and when they bred her that it might bite; that dog owners could not recover on theory of products liability; and that even if liability had been established, dog owners' actions in taking the neighbor's child to see the Doberman Pinscher with her nine-day-old pups could not be viewed as merely passive negligence so that they could not obtain indemnity or contribution from seller.

Affirmed.

West Headnotes (13)

[1] Sales Matters of opinion or commendation

Statements merely of the seller's opinion or sales talk do not constitute express warranties.

[2] Sales Animals and livestock

Even if there had been an express warranty that Doberman Pinscher being sold was docile, fact that, after having given birth to litter two and one- half years after the sale, dog bit a neighbor's child did not demonstrate a breach of the warranty where there was no allegation that seller had stated that dog would not bite.

1 Cases that cite this headnote

[3] Bailment Nature and elements in general

Bailment Condition of and defects in property, and

negligence of bailor

Sales Warranties Imposed by Law; Implied

Warranties

Law will not lend its help in the creation of an implied warranty which patently runs counter to the experience of mankind or known forces of nature and will not read into any sale or bailment a condition or proviso which is unreasonable, impossible, or absurd.

1 Cases that cite this headnote

[4] Sales Animals and livestock

Even if seller of dog had warranted the personality of the dog at time it was sold, there was no warranty that the personality would not change in the future so that owners could not recover for breach of warranty when the dog, after having whelped two and one half years later, bit a neighbor's child.

1 Cases that cite this headnote

[5] Animals Vicious propensities and knowledge thereof

Whitmer v. Schneble, 29 Ill.App.3d 659 (1975) 331 N.E.2d 115, 17 UCC Rep.Serv. 710

Animals Cats

Keeper of an ordinary gentle bitch or cat is required to know that, while she is caring for her puppies or kittens, she is likely to attack other animals and human beings.

[6] Indemnity Defenses

Purchasers of Doberman Pinscher were charged with notice when they bought the dog that the dog might bite and could not recover from seller of dog amounts which they were required to pay to the child who was bitten on theory that they were not informed and warned by the seller of the possibility of the dog's biting someone.

[7] Products Liability Nature of Product and Existence of Defect

or Danger

Products Liability Lapse of time or change in condition

Although a “product” need not be manufactured and may be a viable thing, before the doctrine of products liability may be applied, the product's nature must be fixed when it leaves the manufacturer's or seller's control and the product must reach the user without substantial change.

4 Cases that cite this headnote

[8] Products Liability Strict liability

Purpose of imposing strict liability is to insure that the cost of injuries resulting from defective products are borne by those who market such products rather than by the injured persons, who are powerless to protect themselves.

5 Cases that cite this headnote

[9] Products Liability Nature of Product and Existence of Defect

or Danger

There is no duty to produce an accident proof product or one that is foolproof and there is no duty to deal in a perfect product or any product in the use of which the occurrence of injury is totally impossible.

[10] Products Liability Nature of Product and Existence of Defect

or Danger

When a product contains dangerous ingredients which are natural or inherent, the product is not defective and it is only when the manufacturer could not reasonably expect the consumer to discover the natural substance in the final product that liability results.

[11] Products Liability Elements and Concepts

Products Liability Miscellaneous products

Owners of dog against whom action was brought by child who had been bitten by the dog when she approached dog's newly born puppies could not recover on third-party complaint against seller of the dog on theory of products liability.

1 Cases that cite this headnote

[12] Contribution Persons not in pari delicto; active and

passive wrongdoers

Indemnity Successive sellers; products liability

Actions of dog owners in taking neighbor's child down to visit the dog with its nine-day-old pups could not be viewed as mere passive negligence; they could not obtain contribution or indemnity, with respect to action brought against them by child after the dog bit the child, from the seller of the dog even if they were to establish dog seller's liability on theory of breach of warranty, failure to warn of dangerous propensities, or products liability.

Whitmer v. Schneble, 29 Ill.App.3d 659 (1975) 331 N.E.2d 115, 17 UCC Rep.Serv. 710

[13] Indemnity Successive sellers; products liability

Where there was no express agreement by dog seller to indemnify buyers for damages resulting from actions of the dog, only theory on which buyers, against whom neighbor child who had been bitten by the dog brought action, could obtain indemnity from the seller was on an “active-passive” theory.

Attorneys and Law Firms

**116 *660 Korf, Pfeil & Graves, Elkhorn, Wis., John P. Graves, Jr., Rockford, for appellant.

**117 Robert K. Clark, Rockford, for appellee.

Opinion

HALLETT, Justice:

Robert and Frances Schneble owned a female Doberman Pinscher which bit a child in their home. When sued under the Illinois dog bite statute, they filed a third-party complaint against the House of Hoyt from whom they had purchased it. The trial court struck their amended third-party complaint, ordered that Hoyt go hence without day and found no just reason to delay enforcement or appeal.

On appeal, the Schnebles' contend, on the basis of the allegations of their amended third-party complaint, (1) that Hoyt is liable to them (a) because of the breach of an express warranty; or (b) because it failed to warn them of the propensities of such a dog; or (c), under strict liability for selling them an ‘inherently dangerous' product; (2) that, liability being thus established, they have a valid third-party complaint against Hoyt in the instant action; and (3) that such is not barred by any Statute of Limitations. We disagree with their first and second contentions and therefore affirm, without reaching their third contention.

From the various pleadings, the following facts appear. On July 26, 1968, Robert and Frances Schneble bought a female Doberman Pinscher *661 from the House of Hoyt. Their unsworn amended third-party complaint alleges that the dog was represented to them as a ‘docile dobe’, appropriate for one ‘who is in need of a dog for companionship and

friendship, but wants very little aggressiveness in him’, etc., but, Hoyt's sworn motion to strike and dismiss attaches the bill of sale for the dog, signed by the Schnebles, which describes the dog as ‘medium aggressive’, which is further described in the literature furnished them as a dobe that ‘can love and fight with equal zeal’ and is suitable ‘for people who want true protection * * *’. The Schnebles' concede this in their reply and we conclude that the latter is the correct version.

Some two and a half years later the dog was bred and on December 31, 1970, puppies were born. On January 9, 1971, Sherry Lynn Whitney, a neighbor's child, was viewing the puppies in the presence of both of the Schnebles, when she was bitten by their mother. On June 25, 1973, the child, by her father, sued the Schnebles under the Illinois ‘dog-bite’ statute (then 1971 Ill.Rev.Stat. ch. 8, section 12d, now ch. 8, section 366), which, in pertinent part, provides that:

‘If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained * * *.’

On June 25, 1973, the Schnebles filed a third-party complaint which they later amended. Count I was on an express warranty; Count II was for failure to warn of the dog's propensities, etc., and Count III was in strict liability on the ground that the dog Hoyt sold them was an ‘unreasonably dangerous' product. It sought indemnity from Hoyt for any judgment against them, plus attorney's fees, etc. The trial court, as we have said, struck the amended third-party complaint, sent Hoyt hence without day and found no just cause to delay enforcement or appeal.

The Schnebles' first contend (a) that Hoyt is liable to them because of the breach of an express warranty that the ‘dobe’ was ‘docile’, etc. [1] It is very doubtful whether any of the language alleged

in Count I amounted to an express warranty. Statements merely of the seller's opinion or sales talk do not constitute express warranties. ( **118 Olin Mathieson Chemical Corp. v. Moushon (1968), 93 Ill.App.2d 280, 235 N.E.2d 263; Weiss

Whitmer v. Schneble, 29 Ill.App.3d 659 (1975) 331 N.E.2d 115, 17 UCC Rep.Serv. 710

v. Rockwell Manufacturing Co. (1973), 9 Ill.App.3d 906, 293 N.E.2d 375.) Furthermore, as we have indicated, the bill of sale and brochure, which the Schnebles concede, destroy their claim.

[2] [3] But even if there were an express warranty, it would not appear *662 that there was a breach. Nowhere do the Schnebles allege that Hoyt stated that the dog would not bite. Even a docile dog is known and expected to bite under certain circumstances. (See Restatement of Torts, s 518, comment g and Restatement of Torts (Second), s 290, comment g.) And this court will not infer a warranty that the dog will never bite from the language which was used. ‘(T)he law will not lend itself to the creation of an implied warranty which patently runs counter to the experience of mankind or known forces of nature. It will not read into any sale or bailment a condition or proviso which is unreasonable, impossible or absurd.’ Meester v. Roose (1966), 259 Iowa 357, 144 N.W.2d 274, 276.

[4] In addition, the statements complained of only describe the personality of the dog at the time it was sold. There is no warranty by the seller that the dog's personality will not change in the future. (See 63 Am.Jur.2d Products Liability, s 95.) Yet the plaintiff did not allege that there had been a breach of the warranty on the date of the sale or that the condition of the dog had remained unchanged during the 2 1/2 years since the sale. Indeed, it would be difficult for the plaintiffs to so allege since the dog had new masters, gotten older and had puppies.

We therefore conclude that there is no merit to this contention.

The Schnebles next contend (b) that Hoyt is liable to them because it failed to warn them of the propensities of such a dog.

It is common knowledge that dogs bite. As Isaac Watts put it in his Divine Songs: ‘Let dogs delight to bark and bite

For God hath made them so;

Let bears and lions growl and fight

For ‘tis their nature too.

Or as remarked by John B. Bogart and quoted by Frank O'Brien in the Story of the Sun:

‘When a dog bites a man, that is not news because it happens so often. But if a man bites a dog, that is news.’

[5] It is a truism that an animal mother will protect her young. And ‘the keeper of an ordinary gentle bitch or cat is required to know that while she is caring for her puppies or kittens, she is likely to attack other animals and human beings.’ (Restatement of Torts, s 518, comment g.) Likewise, as is stated in the Restatement (Second) of Torts, s 290, comment g:

‘Knowledge of habits of animals. A reasonable man is required *663 to have such knowledge of the habits of animals as is customary in his community. Thus, he should know that certain objects are likely to frighten horses and that frightened horses are likely to run away. He should know that cattle, sheep and horses are likely to get into all kinds of danger unless guarded by a human being, that bulls and stallions are prone to attack human beings and that even a gentle bitch, nursing her pups, is likely to bite if disturbed by strangers.’

[6] Thus the Schnebles were charged with notice when they bought the dog and when they bred her that she might bite and cannot now complain that they were not informed and warned by the House of Hoyt of what all men know.

**119 The Schnebles next contend that Hoyt is liable to them, under strict liability, because it sold them an ‘inherently dangerous' product. [7] [8] While a product need not be ‘manufactured’ and

may be a viable thing (Cunningham v. MacNeal Hospital (1970), 47 Ill.2d 443, 266 N.E.2d 897), nevertheless, before the doctrine of Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182, may be applied, its nature must be

Whitmer v. Schneble, 29 Ill.App.3d 659 (1975) 331 N.E.2d 115, 17 UCC Rep.Serv. 710

fixed when it leaves the manufacturer's or seller's control. And the product must reach the user without substantial change. (Restatement (Second) of Torts, s 402A, quoted in Suvada.) The purpose of imposing strict liability is to insure that the costs of injuries resulting from defective products are borne by those who market such products rather than by the injured persons, who are powerless to protect themselves (63 Am.Jur.2d Products Liability, s 123). This purpose would be defeated if Suvada were to be applied to products whose character is shaped by the purchaser rather than the seller. Yet quite obviously, a dog's character is affected by its owner's personality, their treatment of it, the affection, indifference or even brutality shown to it. The dog also changes with maturity, with maternity, and as a result of outside events.

Yet even if the bitch here were a ‘product’ within the doctrine laid down by Suvada, the third party defendant would not be liable. [9] [10] There is no duty to produce an accident proof

product or one that is foolproof. (Fanning v. LeMay (1967), 38 Ill.2d 209, 230 N.E.2d 182; Jonescue v. Jewel Home Shopping Service (1973), 16 Ill.App.3d 339, 306 N.E.2d 312; 63 Am.Jur. Products Liability, s 51.) There is no duty to deal in a perfect product or in a product in the use of which the occurrence of injury is totally impossible. (63 Am.Jur.Products Liability, s 51.) Likewise generally, when a product contains dangerous ingredients which are natural or inherent, the product is not defective *664 and it is only when the manufacturer could not reasonably expect the consumer to discover the natural substance in the final product that liability results. 86 Corpus Juris Secundum, Torts, s 18.2.

In Fanning v. LeMay (1967), 38 Ill.2d 209, at 211 and 212, 230 N.E.2d 182, at 184, our Supreme Court stated: ‘The defendants contend that the complaint is insufficient in law because it fails to allege facts showing any defects in the shoes. We agree. . . . The most that is alleged in the case at bar is that the soles of the shoes became slippery when wet. No facts are alleged setting forth any specific defect in the shoes, nor are there facts to show that in thr respect alleged they were any different from shoes ordinarily worn by millions of other people. It is a matter of common knowledge that shoes are more likely to slip when wet than when dry, but this provides no basis for the conclusion that a particular pair of shoes is dangerous or unsafe.

‘The basis for liability in tort is not the mere fact of injury but injury caused by fault, and a complaint which fails to allege facts, the existence of which is necessary to enable the plaintiff to recover, does not state a cause of action. Such deficiency cannot be remedied by liberal construction or by argument.’

[11] Likewise, in this case there is nothing to suggest in what manner this Doberman was ‘inherrently dangerous' other than the tendency which almost all bitches (which have just whelped) have, to bite someone approaching her pups.

In short, all mankind, and this court as well, is aware that dogs bite and that bitches which have just whelped and are watching **120 their pups will fulfill their natural maternal instinct and bite a stranger who approaches. It is unfortunate of course that in this case the dog's bite was worse than her bark.

We therefore conclude that Hoyt is not liable to the Schnebles.

The Schnebles also contend that, liability being thus established, they have a valid third-party complaint against Hoyt in this action. [12] Even were Hoyt liable to the Schnebles (which, as

we have demonstrated, is not so), they would not have a valid third-party complaint against Hoyt in this action because their own actions, in taking a neighbor's child down to visit their Doberman Pinscher with nine day old pups, could not possibly be viewed as ‘passive’ negligence.

[13] There was here no express agreement by Hoyt to indemnify the Schnebles for damages resulting from actions of the dog it sold them.

*665 Hence the only possible theory would be on an ‘active- passive’ theory.

In Carver v. Grossman (1973), 55 Ill.2d 507, 305 N.E.2d 161, in reversing a judgment against the third-party defendant, our Supreme Court, at pages 510—514, 305 N.E.2d at page 162, said: ‘Illinois has long adhered to the rule that there can be no contribution among joint tortfeasors. (See Nelson v. Cook (1856), 17 Ill. 443; Johnson v. Chicago and Pacific Elevator Co. (1882), 105 Ill. 462; Skala v. Lehon (1931), 343 Ill. 602,

Whitmer v. Schneble, 29 Ill.App.3d 659 (1975) 331 N.E.2d 115, 17 UCC Rep.Serv. 710

175 N.E. 832; Miller v. DeWitt (1967), 37 Ill.2d 273, 226 N.E.2d 630.)

‘The theory of implied indemnity has been applied judicially to mitigate the harsh effect that could result from an inflexible application of the rule which prohibits contributions. (Muhlbauer v. Kruzel, 39 Ill.2d 226, 230, 234 N.E.2d 790; see also Gertz v. Campbell, 55 Ill.2d 84, 302 N.E.2d 40.) We are called upon by the third-party complaint in this case to again apply the theory of implied indemnity.

‘We feel that the evidence in this case fails to establish Grossman's right to indemnity from Bishop, the owner of the service station, because the evidence clearly establishes that his decedent, Putnam, was himself guilty of active negligence. Grossman has oversimplified the facts in asserting that Bishop created the hazardous condition and Putnam merely failed to discover the condition in which Bishop had left the car. He further contends that Putnam performed ‘the usually harmless act of turning an ignition key,’ which under the circumstances of this case proved not to be ‘the usually harmless act.’

‘* * * It was the negligent act of Putnam in starting the engine while the car was in gear without depressing the clutch or applying the brake that caused the car to move forward and strike Carver. We cannot characterize this negligence as passive so as to permit the shifting of the entire responsibility from him to Bishop for injuries to which he very substantially contributed. It cannot be said that the principal or moving cause of the injury was the act of Bishop and that Putnam simply failed to discover or correct the situation which Bishop had created * * *.

‘The contention of Grossman is similar to that of the third- party plaintiff in Gillette v. Todd, 106 Ill.App.2d 287, 245 N.E.2d 923. In that case a school teacher was injured when an employee of the defendant opened the door in the school **121 house causing the door to strike the teacher. The

teacher brought suit against the defendant for her injuries and the defendant filed a third-party complaint against the school district alleging that the injury was due to the active *666 negligence of the school in designing, constructing

and equipping the door which struck the plaintiff. The court observed that it was apparent that the conduct of the defendant, if found to be negligence in the principal action, could only be classified as active negligence and that it was not the condition of the door alone which caused injuries to the plaintiff. It, at the very least, required the active and potentially negligent act by the defendant to cause the injury. The court observed that if the defendant was in fact guilty of active negligence, there could be no indemnity from the school district irrespective of whether the negligence of the school district was classified as active or passive. 106 Ill.App.2d at 293, 245 N.E.2d 923.’

To the same general effect, see Gillette v. Todd (1969), 106 Ill.App.2d 287, 293—294, 245 N.E.2d 923; Moody v. Chicago Transit Authority (1974), 17 Ill.App.3d 113, 116— 117, 307 N.E.2d 789; Burke v. Sky Climber, Inc. (1974), 57 Ill.2d 542, 545—546, 316 N.E.2d 516; Stewart v. Mister Softee of Illinois, Inc. (1966), 75 Ill.App.2d 328, 330—331, 221 N.E.2d 11; St. Joseph Hosp. v. Corbetta Construction (1974), 21 Ill.App.3d 925, 957—961, 316 N.E.2d 51.

We therefore conclude that, even were Hoyt liable to the Schnebles (which is not so), they would not have a valid third- party complaint against it.

As a result, we affirm, without reaching the Statute of Limitations issue.

Affirmed.

SEIDENFELD, P.J., and GUILD, J., concur.

All Citations

29 Ill.App.3d 659, 331 N.E.2d 115, 17 UCC Rep.Serv. 710

Whitmer v. Schneble, 29 Ill.App.3d 659

Negative Treatment

Negative Citing References (1)

The KeyCited document has been negatively referenced by the following events or decisions in other litigation or proceedings:

Treatment Title Date Type Depth Headnote(s)

Disagreed With by 1. Worrell v. Sachs

563 A.2d 1387 , Conn.Super. Buyer of pet animal that was allegedly diseased brought products liability action against seller. Seller brought motion to strike. The Superior Court, Judicial District of New...

Feb. 08, 1989 Case —