Salmon v. Libby, McNeill & Libby

76 N.E. 573, 219 Ill. 421

• Court: Illinois Supreme Court
• Decided: December 20, 1905
• Status: Published

Opinion

Mr. Justice Scott

delivered the opinion of the court:

Each count of the original declaration charged, in substance, that the defendant negligently and improperly prepared and manufactured the mince meat in question; that as a result the same became unfit for food and became poisonous and destructive to human life when used as food, and that plaintiff’s testator, lawfully partaking of the same, was poisoned and lost his life in consequence thereof.

The Kansas statute which is set out in each count permits a recovery where the death of any person has been caused by the wrongful act or omission of another.

We are disposed to think that each of the counts of the original declaration defectively stated a good cause of action. It is true that in neither count is the particular negligence, which it is claimed constituted an actionable wrong, described in apt words, but it is charged in general terms that the meat -was poisonous as a consequence of its negligent and improper preparation by the defendant, and this averment, taken in connection with the Kansas statute set out in connection therewith, shows the existence of an actionable wrong, though when tested by demurrer the lack of particularity in the averments was fatal to each count.

The original declaration did not state a defective cause of action,—it stated defectively the good cause of action which is set out by the second amended narr. Therefore the demurrer to the pleas setting up the Statute of Limitations should have been sustained. Eylenfeldt v. Illinois Steel Co. 165 Ill. 185, and cases there cited.

The judgments of the Appellate Court and superior court will be reversed, and the cause will be remanded to the latter court with directions to sustain the demurrer to the pleas of the Statute of Limitations, and for further proceedings consistent with this opinion.

Reversed and remanded, with directions.