Welter v. Bowman Dairy Co. (318 Ill. App. 305, 1943)

Mr. Presiding Justice Burke

delivered the opinion of the court.

On August 29,1940 Sandra Marie Welter, an infant, by her father and next friend, Fred J. Welter,' and Fred J. Welter filed in the municipal court of Evanston, their praecipe, four count complaint and jury demand against the Bowman Dairy Company, a corporation. On motion of plaintiffs, counts 3 and 4 and certain subparagraphs were stricken. Count 1 alleges that plaintiff Sandra Marie Welter is a child of tender years, the daughter of Fred J. Welter; that on April 18, 1940, Bowman Dairy Company was engaged in the sale of milk in the city of Evanston, such sale being carried on by drivers of its milk wagons; that Bowman Dairy Company bottled its products in glass bottles, used machinery and appliances for cleansing the bottles, other machinery for filling the bottles, and sold and delivered its products to its customers; that on April 18, 1940 defendant sold and delivered to Fred J. Welter for his use and consumption, as well as the use of his family, certain milk in a glass bottle warranting that the milk was good and wholesome and safe to drink; that at such time there was in full force and effect section 15 of the Uniform Sales Act (sec. 15, eh. 12D/2, 111. Eev. Stat. 1941 [Jones 111. Stats. Ann. 121.Í9]) reading:

“Subject to the provisions of this act 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:

“(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 an [an] implied warranty that the goods shall be reasonably fit for such purpose. . . .”

that defendant carelessly and negligently sold and delivered milk which was not good and wholesome, but was unwholesome, adulterated, poisonous, dangerous and unfit to drink; that plaintiff, Fred J. Welter, without notice as to the unfit condition of the milk, permitted the said milk to be fed without fault on his part to the plaintiff, Sandra Marie Welter, who drank the milk without fault on her part; that as a result plaintiff, Sandra Marie Welter, became sick and will remain sick during the remainder of her life; that she has been permanently injured, suffered great pain and agony, loss of health, mental and physical power, to her damage in the sum of $100,000; that the said Fred J. Welter was compelled to expend large sums of money for medical and hospital care for the said Sandra Marie Welter, and will continue to become liable to expend such moneys, to the damage of Fred J. Welter in the sum of $100,000. Count 2 realleged the capacity of plaintiffs and the defendant, and further alleged that on April 18, 1940 Bowman Dairy Company sold and delivered to the home of Sandra Marie Welter, milk in a glass bottle for her use and consumption ; that it was the duty of defendant not to cause or allow paint or other poisonous substances to be placed in such bottle of milk; that at that time there was in full force and effect section 16 of the Pure Food Regulations (sec. 16, ch. 56%, 111. Rev. Stat. 1941 [Jones 111. Stats. Ann. 53.016]) reading:

“No person, firm or corporation shall offer for sale, or sell to any person, firm or corporation, creamery or cheese factory, any unclean, unhealthful, unwholesome, or adulterated milk or cream, or any milk or cream which has not been well cooled or to which any water or any other foreign substance has been added, or milk or cream which has been handled or transported in unclean or unsanitary vessels or containers. . . .”

This count charged that the defendant, well knowing its duty, failed and omitted to do one or more of the following acts, as a result of which Sandra Marie Welter sustained injuries and damages: (a) carelessly and negligently permitted the impure substance to be placed in and remain in the bottle of milk; (b) carelessly and negligently failed to inspect the bottle of milk so as to ascertain the dangers connected with the sale and delivery of the same; (c) carelessly and negligently failed to warn of the danger of using the milk; and (d) carelessly and negligently violated the provisions of section 16, chapter 56% of the Pure Food Regulations. This count further alleged that Mrs. Welter, mother of Sandra Marie Welter, while in the exercise of due care and caution, fed the milk to Sandra Marie, and in consequence Sandra Marie became sick and will remain sick during the remainder of her life; that Sandra Marie, suffered damages in the sum of $100,000; that by reason of the premises, Fred J. Welter became compelled to expend and will hereafter be compelled to expend large sums of money for medical and hospital care for Sandra Marie to his damage in the sum of $100,000. Plaintiffs prayed judgment in the sum of $200,000.

A motion filed by defendant to quash the service of summons was overruled. Defendant then filed a written motion to dismiss the complaint on the ground that the court had no jurisdiction, and to strike count 1 on the ground that the cause of action stated therein is upon an implied contract and that .there was no contractual relation between the defendant and Sandra Marie, and that the count failed to state a cause of action on behalf of Fred J. Welter. The court denied this motion. Answering count 1, the defendant denied any failure to exercise all manner of care and caution in the preparation of the milk; denied that it ever sold any product which was unwholesome, adulterated, dangerous, poisonous and unfit to drink; denied that Fred J. Welter was in the exercise of due care and caution; alleged that he should have discovered any contamination of milk; and denied that Sandra Marie Welter, or Fred J. Welter have been damaged in the sum of $100,000 each, or in any sum whatever. ■ Answering count 2, defendant alleged that it was at all times in the exercise of all due, necessary and proper care to maintain sanitary conditions of its products; denied that defendant ever suffered, permitted or allowed paint or any other substance whatsoever to ° be placed in and remain in any bottle filled by the defendant; and denied specifically each charge of negligence in subparagraphs (a), (b), (c) and (d); de-, nied that Mrs. Fred Welter was in the exercise of due care and caution for the safety of .Sandra Marie; and denied that either of the plaintiffs was damaged as the proximate result of the negligence of the defendant, or that either was damaged in any sum whatever. It will be seen that the action is based upon the delivery to the Welter home of a quart of milk containing a foreign substance. The first count is based on a breach of warranty and the second count upon charges of negligence. A trial before the court and a jury resulted in a verdict finding the defendant guilty on both counts as to Sandra Marie Welter, and assessing her damages at the sum of $30,000, and finding the defendant not guilty on both counts as to Fred J. Welter. Motions by the defendant for a directed verdict, for judgment notwithstanding the verdict and for a new trial were overruled, and judgment was entered on the verdict, to reverse which this appeal is prosecuted.

Plaintiff’s theory is that defendant’s implied warranty that the milk was- fit for human consumption is available to Sandra Marie Welter, a member of the family of the purchaser, Fred J. Welter, who might reasonably be expected to be one of the persons who would consume the milk, and who was in fact the ultimate consumer thereof; that defendant violated the statutes of this State known as the Uniform Sales Act and the Pure Food Act, which gave rise- to an action for damages by any party injured thereby; that defendant was guilty of negligence in permitting such adulterated milk to be sold and delivered for human consumption; and that the sale and delivery by defendant of a bottle of milk containing a quantity of paint in itself constituted negligence, a breach of an implied warranty and a breach of the Pure Food Act. The theory of the defendant is that under the first count the implied warranty of fitness for human consumption extends only to the purchaser and does not run with the goods to the ultimate consumer, Sandra Marie Welter; that under the second count where specific charges of negligence are made, at least one of these charges must be proved by a preponderance or greater weight of the evidence.

We will first consider defendant’s contention that the suit was not properly commenced in the municipal court of Evanston, because the principal office of this corporation, the sole defendant, was not within the territorial limits of that city. It is not disputed that the principal office of the defendant is located in the city of Chicago, nor that the defendant does business in and has a branch office in the city of Evanston. Section 19 of an act in relation to municipal courts in cities and villages (sec. 462, ch. 37, 111. Rev. Stat. 1941 [Jones 111. Stats. Ann. 108.117]) provides that “No suit shall be commenced in any such Municipal Court unless the defendant, if there be but one, resides or is found within the city in which such Municipal Court is established, or if the defendant be a corporation, unless its principal office is within such city, and if the defendant be a corporation not having a principal office in such city, such suit may be brought in such Municipal Court wherever service of process may be had within such city upon any officer, agent or employee of such corporation upon whom service of process might be had if issued in a suit commenced in the Circuit Court . . . .” The return on the summons shows service on the defendant by delivering a copy thereof “with a praecipe and statement of claim and affidavit attached thereto, to Charles C. Heinz, manager of said corporation, and at the same time informing him of the contents thereof in the City of Evanston, this 30th day of August, 1940,” and that the president, clerk, secretary or other agents of the corporation were not found in the city of Evanston. Defendant, pointing out that statutes should be so construed as to give effect to each word, clause and sentence in order that no such word, clause or sentence may be deemed superfluous or void, argues that if the latter part of the quoted section be construed to mean that a nonresident corporation may be sued as sole defendant if the agent of the company is found in the city where the court is established, then the direction that “no suit shall be commenced in any such Municipal Court ... if the defendant be a corporation, unless its principal office is within such city . . .”, would be rendered meaningless. Defendant maintains that it was the intention of the legislature in defining the jurisdiction of municipal courts to prohibit a suit against a corporation in the city of the plaintiff’s residence unless the principal office of the defendant corporation was in the same municipality, with the qualification that such corporation could be joined as codefendant with a defendant whose home was in that city, in order that, all the issues in a case might be determined in one action. It will be noted that the statute provides that the individual must reside in or be found in the city in which the court is established. It is obvious that in defining the jurisdiction of the municipal courts, the legislature could have expressed its thought in clearer language. Nevertheless, we are of the opinion that the section quoted means that a corporation must have its principal office, within the municipality, or service of process must be made within the municipality upon any officer, agent or employee upon whom service of process might be had if issued in a suit commenced in the circuit court. We are satisfied that the language “and if the defendant be a corporation not having a principal office in such city, such suit may be brought in such Municipal Court wherever service of process may be had within such city upon any officer, agent or employee of such corporation upon whom service of process might .be had if issued in a suit commenced in the Circuit Court,” gives the municipal court of Evanston jurisdiction over a sole corporate nonresident defendant when process is served in Evanston. This construction of the statute imposes no hardship on a corporate defendant, particularly as in this case, where the corporation is doing business and has a branch office in the city, and service was had by delivering a copy of the summons to the branch manager of defendant and informing him of the contents. The cause of action alleged, arose within the city. The court ruled correctly in refusing to quash the return on the summons. Plaintiff urges that in any event the defendant waived all objections to- the jurisdiction by invoking such jurisdiction, before it filed its special appearance and motion to quash and before such motion was passed upon. The summons was returnable on September 9, 1940. Ón that date the following order was entered:

“By agreement of the parties hereto it is ordered that leave be granted to defendant herein to file appearance within five days and it is further ordered that the defendant file herein an affidavit of merits within five days from this date and it is further ordered that this cause be and the same is hereby set September 16, 1940 for affidavit of merits.”

On September 14, 1940 the defendant filed its special appearance “for the purpose of filing a motion to quash the service of summons herein upon the ground that this court has no jurisdiction of the subject matter of this suit and no jurisdiction over the person of this defendant by reason of the service of process in this cause.” On the same day defendant filed its written motion to quash the service of the summons. This motion was overruled. It is manifest that on the return day the defendant appeared and submitted itself to the jurisdiction of the court. By agreement the defendant was granted leave to file its appearance within five days, was ordered to file an affidavit of merits within the same time and the. case was set for September 16, 1940 for affidavit of merits. No objection to the jurisdiction of the court was voiced on the return day. The order entered on agreement of the parties granting an extension of time to defendant in which to file an appearance and affidavit of merits recognized the jurisdiction of the court for all purposes. Actually, defendant’s appearance was entered on September 9,1940. An appearance may be entered by making a motion, by filing an answer and in other ways. Here the general appearance was entered by the defendant when it joined in procuring an order allowing an extension of time; The following excerpt from Supreme Hive Ladies of Maccabees v. Harrington, 227 Ill. 511, is applicable (525):

“If the defendant appears and makes a motion or files a plea or takes any other step which the court would have no power to dispose of without jurisdiction of the defendant’s person, such action on the part of the defendant will be a submission of his person to the jurisdiction of the court and will be- a waiver of any objections to the jurisdiction. He cannot, by his voluntary action, invite the court to exercise its jurisdiction and at the same time deny that jurisdiction exists.”

Defendant insists that the principle announced in the Ladies of Maccabees case is no longer applicable, because it is provided in paragraph 3 of section 43 of the Civil Practice Act (par. 3 of sec. 167, ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.043]) that “All defenses, whether to the jurisdiction or in abatement or in bar, may be pleaded together, but the court may order defenses to the jurisdiction or in abatement to be tried first. An answer containing only defenses to the jurisdiction or in abatement shall not constitute an admission of the facts alleged- in the plaintiff’s complaint.” We do not agree with this contention. This provision permits a defendant to plead all of his defenses together, whether to the jurisdiction in abatement or in bar. A defendant is not required to do this. On the return day the defendant could have appeared and filed a special appearance and motion to quash the service of summons, or he could have filed his special appearance, his motion to quash service and his answer in bar. By proceeding in that manner the defendant would not waive the jurisdictional point. He did not proceed in that manner. He appeared generally on September 9, 1940. By doing so he waived all objections to the jurisdiction. For that additional reason, we are of the opinion that the trial judge did not err in overruling defendant’s motion to quash service of the summons.

We now turn to a consideration of defendant’s contention that the implied warranty of fitness of foodstuffs for human consumption is available only to the immediate purchaser and does not run with the goods. Plaintiff insists that the implied warranty of fitness for human consumption extended to her, although she was not the purchaser. The first count is based on a breach of an implied warranty. Apparently, this question has never been presented directly to a court of review in this State. Defendant supports its contention by citing Chysky v. Drake Bros. Co., 235 N. Y. 468, 139 N. E. 576; Colonna v. Rosedale Dairy, Co., 166 Va. 314, 186 S. E. 94; Gearing v. Berkson, 223 Mass. 257, 111. N. E. 785; Bourcheix v. Willow Brook Dairy, 268 N. Y. 1,196 N. E. 617; Schlosser v. Goldberg, 123 N. J. Law 470, 9 A. (2d) 699. Plaintiff in maintaining that the implied warranty of the fitness of milk for human consumption extended to her, although she was not the purchaser, cites Wiedeman v. Keller, 171 Ill. 93; Davis v. Van Camp Packing Co., 189 Iowa 775; Boyd v. Coca Cola Bottling Works, 132 Tenn. 23; Catani v. Swift & Co., 251 Pa. 52; Ward Baking Co. v. Trizzino, 27 Ohio App. 475, 161 N. E. 557, and many other cases. In the recent case of Caudle v. F. M. Bohannon Tobacco Co., 220 N. C. 105, 16 S. E. (2d) 680, the Supreme Court of North Carolina, in sustaining a judgment for $1,200 for injuries suffered to Mrs. Caudle’s mouth caused by a fish hook embedded in a plug of tobacco she was chewing, said (683):

“It is well settled in this jurisdiction that to hold the manufacturer liable, the basis of liability is negligence rather than implied warranty, although in some jurisdictions a recovery may be had under implied warranty. ”

Defendant declares that in the case of foodstuffs, either through a desire to afford to the plaintiff a convenient remedy or through the failure to apply to the facts sound legal reasoning, certain courts have afforded to an individual, not a privy in contract, a right of recovery upon an implied warranty against a manufacturer or dealer in foodstuffs, and asserts that while there may be a justification for a strained construction where an injury has resulted and there is no established remedy, the case of a plaintiff who has incurred injuries through the use of foodstuffs does not fall within that category, as since the early common law, a plaintiff under such circumstances has had a cause of action against the dealer or manufacturer on the basis of negligence. In Wiedeman v. Keller, 171 Ill. 93, our Supreme Court said (99):

“In an ordinary sale of goods the rule of caveat emptor applies, unless the purchaser exacts of the vendor a warranty. Where, however, articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound article may be so serious and may prove so disastrous to the health and life of the consumer that public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound and fit for the use for which it was purchased. It may be said that the rule is a harsh one; but, as a general rule, in the sale of provisions the vendor has so many more facilities for ascertaining the soundness or unsoundness of the article offered for sale than are possessed by the purchaser, that it is much safer to hold the vendor liable than it would be to compel the purchaser to assume the risk.”

Defendant concedes that there was an implied warranty on its part as to the milk sold, but that this warranty extended only to Fred J. Welter. We have read all the cases cited, and are impressed by the reasoning in the case of Davis v. Van Camp Packing Co., 189 Iowa 775. In that case it appears that the defendant was engaged in the manufacture of canned goods, including pork and beans, for human consumption. On July 4, 1916 the can of beans in question was received by a wholesale grocer in Fort Dodge in a consignment from the defendant company. On July 12, 1916 the wholesale grocer sold the can of beans in question, with others, to Munn, a retail grocer at Gypsum, five miles east of Fort Dodge. On July 24, 1916 this can of beans was sold by Munn to the mother of plaintiff. This was Monday. The can" appeared to be all right. The beans were eaten for the evening meal within an hour after they were brought by Mrs. Davis to the home. The family consisted of the father, mother and seven children. Three of the Davis children were at home for the meal at which the beans were eaten, and did not partake of any of the beans, nor did the father and mother. One of the younger children ate nothing but beans for that meal. This child subsequently died from ptomaine poisoning, and the other three children who ate of the beans were taken sick soon after. Some of them were seriously ill for several weeks. At the close of all the evidence there was a directed verdict for the defendant. The Supreme Court of Iowa, in reversing- the judgment and remanding the cause for a new trial, said (785):

“The contention is that because of this and all the circumstances plaintiff made a prima facie case, and that• notwithstanding the defendant’s evidence there was a question for the jury as to whether plaintiff’s prima facie case had been negatived or overcome by defendant’s evidence. They say, too, that if, under the. evidence, defendant’s liability is based upon a breach of warranty, express or implied, plaintiff would not be required to show negligence on the part of defendant in the selection, preparation and marketing of its product. ' Numerous cases are cited holding that in cases similar to this, the case should go to the jury on both questions of implied warranty and negligence.

“It must be admitted that there is much confusion in the authorities as to the theory of the liability of defendant, if any, in this class of cases. Some of the cases hold that the action is bottomed upon negligence alone; others that there is an implied warranty; and still others that there is an implied warranty, and that, if in addition it is found that the seller was negligent in selling food products that were dangerous to those who ate them, he would be liable for the consequénees, if, by proper care, he could have known of the condition. . . .

“From the decisions, and particularly the later decisions, we think there is an implied warranty as contended by plaintiff, and that the question as to privity is not controlling. The case should have gone to the jury on that question. We are of opinion, too, that, on the whole case, there was sufficient evidence to take the case to the jury on the question of negligence, and that it was for the jury to say whether plaintiff’s prima facie case had been negatived or overcome by the testimony introduced on behalf of the defendant.

“We make a distinction between food products which are canned, bottled, or wrapped in such a way that the contents and the condition thereof may not be known to the purchaser until opened for use by the consumer, and products which are not so put up, and the condition of which is observable. ...

“We are of opinion that the duty of a manufacturer to see to it that food products put out by him are wholesome, and the implied warranty that such products are fit for use, run with the sale, and to the public, for the benefit of the consumer, rather than to the wholesaler or retailer, and that the question of privity of contract in sales is not controlling, and does not apply in such a case. ...

“The question of caveat emptor has been referred to in some of the cases heretofore cited. In the earlier cases, followed, perhaps, by some of the later ones, when a person went to market, with a market basket on his arm, and could examine the food, the doctrine was held to apply, in the absence of a warranty. But the business of canning food products of almost every kind has increased enormously in recent years. The purchaser has no opportunity of examination, until the can is opened for use; and, under the circumstances of this case, we think the doctrine does not apply.”

The Iowa court approved the statement of the Supreme Court of Tennessee in Boyd v. Coca Cola Bottling Works, 132 Tenn. 23, that “upon whatever ground the liability of such a manufacturer to the ultimate consumer is placed, the result is eminently satisfactory, conducive to public welfare and one which we approve.” When the defendant sold and delivered milk to the home of Fred J. Welter, it knew that the milk would be consumed by the Welter family. It is interesting to observe that Charles C. Heinz, who managed defendant’s Evanston branch, in answering the question: “Do you know Mrs. Fred J. Welter?”, answered: “I know her as a customer, yes, sir.” We are satisfied that under the facts of this case the implied warranty that the milk was fit for human consumption extended to the plaintiff, although she was not the purchaser.

Defendant maintains that the evidence of plaintiff is insufficient to support the verdict, argues that plaintiff failed to prove the presence of lead in the bottle of milk, and that' the verdict is based on supposition and conjecture. Plaintiff replies that the verdict is amply supported by the evidence; that when delivered to her home the bottle contained white paint; that evidence of lead intoxication found in the bones and body of plaintiff was sufficient to warrant the conclusion of the jury that such condition resulted from the ingestion of the paint; and that the verdict was not based upon supposition and conjecture, but upon competent evidence. In order that these contentions may be understood and resolved, it is necessary to relate the testimony. On Thursday, April 18, 1940, Fred J. Welter was a retail customer of defendant, which had for many years prior to that time supplied him with milk and other dairy products at his home on Wesley avenue in Evanston. Sandra was his youngest child, born January 30, 1940. On Thursday, April 18,1940, between 5:30 and 6 a. m., Norman Peterson, a milk salesman for defendant, delivered to the Welter home a quart bottle of milk, Mrs. Welter was up, saw the man leave the milk, took it into the house at once and prepared the baby’s formula in accordance with the directions of her physician, for the various feedings to be given to the baby during'the subsequent 24 hours. This formula consisted of 18 ounces of milk, 10 ounces of water and 3 spoonfuls of Dextro Maltose, divided into five feedings. Her method of preparation was as follows: the water was boiled in a sterilized white enameled pan, used for no other purpose. The milk from the bottle which had just been delivered, was then added to the mixture and the Dextro Maltose was added and the entire mixture boiled for three minutes. While the mixture was still hot she poured it from the enameled pan into five sterilized glass feeding bottles, corking each with a black rubber cork. These five bottles and the original bottle containing the remainder of the milk were placed in the refrigerator. No one, but Mrs. Welter handled the quart bottle of milk or the feeding bottles. The baby was two and a half months old and in good health. The schedule on which the baby was fed called for a feeding at 6 a. m., 10 a. m., 2 p. m., 6 p. m., and 10 p. m., or five feedings a day. On Thursday, April 18th, the 6 a. m. feeding was given to the child from the quart bottle of milk delivered on Wednesday. Mrs. Welter testified that when she poured the milk into the pan on Thursday she did not notice any odor of paint or turpentine, nor did she notice any such odor at the time of pouring the hot mixture from the pan into the feeding bottles. The first feeding from this mixture was given at 10 a. m., Thursday, April 18th. Mrs. Welter took one of the bottles from the refrigerator, removed the cork, placed a sterilized nipple on it, heated it and fed the contents to the baby. She fed the mixture to the baby in a similar fashion at 2 p. m., 6 p. in. and 10 p. m. on the same day (Thursday). During Thursday the child appeared to be well. About 2 or 3 o’clock Friday morning, April 19th, the baby became fussy, had diarrhea and vomited frequently, had cramps, drew her legs up to her stomach and screamed constantly. Mrs. Welter was up with the baby. She testified that she “went to the ice box about 4 o’clock in the morning. I was up with her. I took some milk in a glass and it tasted real funny; and I examined the bottle and poured the milk out and discovered paint in the bottom.” She then put the milk back into the bottle, decided to get in touch with the milkman,- and left a note on the porch requesting him to come back so she could talk to him. She further testified that the milk “tasted and smelled of turpentine, strong paint.” In addition to the feeding, the mother nursed the baby on Thursday at 6 p. m., which was the only time she nursed her that whole week. She did not nurse her after April 18th. The only testimony as to what was done with the fifth bottle, which would normally have been fed to the baby at 6 a. m., Friday the 19th, was in the cross-examination of Dr. Harold W. Luessman, a witness, who testified for plaintiff. Dr. Luessman examined the child in August, approximately four months after the child became ill. In his cross-examination he testified that it was his impression that the mother told him that she opened the fifth bottle (being the one which the baby was to get at 6 a. m. Friday, April 19th) for the purpose of examining it; that she told him, “it smelled strong.” There was no denial by the mother or anyone as to this testimony of Dr. Luessman. Mrs. Welter testified that when she poured the milk out of the quart bottle there was “over one and a half inches” of white substance in the bottom; that the substance covered the entire surface of the bottom; that it was up on one side a little more than the rest; that it was about one and a half inches all the way around; that the substance was white paint. Asked, “Could you pour that part?”, she answered, “You could pour the milk and it was kind of soft on top.” Asked, “Did you ever pour the milk oif it entirely?”, she answered, “There was a little milk on top.” She testified that she showed the quart milk bottle to her husband about 10 a. m. Friday morning; that he poured out a small portion of the remaining milk and tasted it. He testified that it tasted just like paint, and that there was in the bottle about an inch and a half of the mixture of paint and milk. He also stated that the bottle then- contained an inch and a half of paint and that the substance in the bottle smelled of paint and turpentine ,and he poured the milk back into the bottle; that the paint filled the bottle to a depth of one and one half inches all around the whole inside of the bottle, and was mixed white so he could not tell that part of it was milk and part was paint. The driver testified that on Friday morning between 5 and 5 -.30 a. m. he found the note; that he went back to the Welter home between 10 and 10:30 a. in.; that Mrs. Welter presented him with a bottle with a thick substance in it; that he did not measure it; that the substance covered the bottom of the bottle on the inside. He further testified: “I think I know how much an inch is, it is about this much. I would not and could not say that there was that much in the bottom of the bottle, because I did not measure it. I saw it.” He further stated that he asked Mrs. Welter for the bottle ; that at one time he told counsel for plaintiff that there was a strong turpentine odor from the substance ; and that he brought the bottle to the dairy and presented it to the manager of defendant, Charles C. Heinz. Witness further testified that Mr. Welter was not there at the time he (witness) received the bottle; that the substance in the bottom of the bottle was light gray in color; that he could not pour it; that he did not try to pour it, but tilted the bottle back and forth and the substance did not move. He testified that he told Mrs. Welter he would report the incident to the company, and that from the time Mrs. Welter delivered the bottle to him until he delivered it to Mr. Heinz, he had not tampered with or removed anything from the bottle. During Friday, April 19th, the baby continued fussy and became nauseated and vomited at intervals of about a half hour. The child apparently suffered cramping pains of the intestinal tract, demonstrated by the fact that she would draw up her legs and cry. Dr. Gr. J. Fitzgerald of Evanston, a physician and surgeon, was called as a witness by the court. He was sent to the Welter home by the Bowman Dairy Company, and according to his best recollection arrived there about 11 a. m. Friday, April 19th. He examined the child, prescribed medication and ordered continuation of the formula feeding that had been used prior to that time. The child continued to cry, suffered from cramps, nausea and dysentery during the remainder of Friday and that night. Dr. Fitzgerald did not determine the cause of the child’s illness. He did state that the symptoms could be produced by absorption of lead. In his report to the Bowman Dairy Company, Dr. Fitzgerald stated that it was possible, in the absence of fever, cold or sore throat, that the gastro-intestinal symptoms were produced from lead absorption from the paint found in the bottle. On Saturday, April 20th, in the late afternoon the child having continued in more or less the same condition, "a visit was made to the Welter home by Dr. William R. Whitley, a pediatrician, practicing in Evanston, who had from time to time cared for the other Welter children, this visit being in response to a call- from Mrs. Welter. Dr. Whitley testified that when he examined the child she was apparently in great pain; that he had talked to Dr. Fitzgerald and that Dr. Fitzgerald told him he thought there was paint in the milk. Dr. Whitley prescribed a sedative and directed the mother to start feeding the child barley water rather than the formula. He saw the baby again on Sunday, April 21st, at which time she was still crying and vomiting, and although she had been given phenolbarbital she was still in pain, the stools increased and there was a pronounced rash on the body and face. When he examined the child on Monday, April 22nd, the vomiting had ceased, and although she apparently was still in pain she seemed a lot easier, and the stools less frequent. On Tuesday, April 23rd, the child showed general improvement, the rash remained about the same, and on Wednesday, April 24th, the stools had improved, there was no vomiting, and according to Dr. Whitley’s records there was at that time no sign of recurrence of pain or colic and the child was apparently free from pain. The next time he saw the child was on May 8, 1940. In the interim he had talked to Mrs. Welter on the telephone. On May 8th he examined the child in his office. He testified: “She was still apparently normal except for a little rash on the face. Apparently on May 8th the child had completely recovered. I base my conclusion on the general appearance of the child, not knowing anything about the X-rays. I later saw X-rays. I later saw the blood tests. When I say the child appeared nearly normal on May 8th, that is from my own physical examination. The child was nearly normal as far as the acute symptoms were concerned, the pain, diarrhea, vomiting. The reaction of the infant was nearly normal at that time. The baby was of course not like a perfectly normal baby because it had gone through a severe illness. I mean the pains had stopped. I examined the ears, nose, throat, abdomen, heart and lungs, fontanel, just a general physical examination. I found the baby had some rash; the abdomen had relaxed from being tight. The baby was slightly dehydrated, but showed recovery. I did no clinical tests. I could not say that it would be abnormal. I do not say the baby was absolutely normal, but had made a recovery from the acute illness. That was an objective examination. In order/to say there was anything other than what I could apparently see with the eyes and the examination I gave, I would have to have X-rays of the bones and a blood count. I did not have that done because I was not taking care of the baby. No, I did not have that done.” Dr. Whitley saw the X-rays of the long bones and the report of the blood count. On May 8th he did not make a prognosis. Prognosis means the conclusion or opinion as to the cause and eventual outcome of the case, whether or not there will be any trouble afterwards. On cross-examination, Dr. Whitley testified that the baby’s mother told him that the rash was there before the occurrence complained of, and that the rash was practically over by May 8th. He further testified that he did not think the rash was an abnormal condition, that it was “just a normal rash all children have,” and that the illness was due to some toxic condition. Dr. Whitley diagnosed the case as some sort of poison and treated the child on the basis of Dr. Fitzgerald’s statement to him that the substance in the bottom of the bottle was paint. Testimony on behalf of plaintiffs was to the effect that the feeding mixture contained only milk from the bottle in question, water and Déxtro Maltose; that the water plumbing in the house was in perfect condition at the time of the baby’s illness and was in the same condition at the time of the trial; that after the occurrence in question water from the same system was used in preparing the child’s feedings, without noticeable change in the child; that the Dextro Maltose comes in a regular can and about a half can remained after the occurrence; and that this was subsequently used in the child’s feedings without harmful results.

Mrs. Welter testified that early in- August, because the child was irritable and sluggish, she took her to Dr. Harold Luessman in Evanston, told him of the occurrence in April and requested him to examine her. Dr. Luessman, a physician, testified that he first saw the baby on August 8, 1940, at which time he made an examination. His objective findings were pallor of the skin, .an irritable, slow reacting child, flabby muscles, loss of tone, passive motion of the limbs, listlessness and slowness to react. At that time he performed a urinalysis and haemoglobin blood test. He estimated the haemoglobin differential at 60 per cent"; that normal was 90. He likewise did a red cell count and it revealed three million red blood cells as against a normal of four million five hundred thousand. The urinalysis demonstrated the presence of albumen and an increased number of cellular lines. He advised the mother to take the baby to Dr. Grentz Perry for X-ray examination. He continued to treat the child until the time of the trial. On March 3, 1941 the blood tests showed approximately a normal blood count and the urinalysis showed no pathological findings. His diagnosis was that the child had suffered an acute lead intoxication, and was suffering from the sequela —secondary anemia, poor appetite, irritability and listnessness. He said the mental and physical development of the child had been and will be impaired; that the ill-being'of the child originated from the'contents of the formula fed to the baby in April, and that an acute gastric intestinal upset immediately following the feeding, and finding of characteristic lines of density in the ends of the long bones would be ample on which to make a diagnosis of lead. He stated that his diagnosis was largely based upon the history obtained from the mother and the report of the X-ray films made by Dr. Perry; that the laboratory and physical findings were not in and of themselves diagnostic of lead poisoning* and had other medical explanations. These other findings on physical examination and from the laboratory tests were simply corroborative and prognostic of his diagnosis, being not inconsistent with the history and the X-ray findings. He testified that he had never seen the bottle of milk from which the formula was prepared, and had no idea whether there was any lead in the paint alleged to have been in the bottle; that he prescribed a blood building mixture containing a liver, extract, iron, orange juice, vitamins A, B, D, and also small amounts of sodium phosphate and a cod-liver oil concentrate. Ardel A. Janson, called by plaintiffs, testified that he was a director of the North Shore Clinical Laboratory at Evanston. He testified about making the blood test and urinalysis run on August 3, 1940. The patient was brought to the laboratory. There was a request slip from Dr. Luessman. Records were made of the urinalysis and blood count, which were received in evidence as plaintiffs’ exhibits 7 and 8. These exhibits show that Dr. Luessman was the physician and that the tests were made on August 3, 1940. Dr. Grentz Perry, called by plaintiffs, testified that he is a physician specializing in radiology; that he specialized in this subject for 23 years; that radiology is a branch of medicine dealing with the radiant energy we get from radium, from X-ray machines, and also the radiant energy of other modalities, infra-red, ultra-violet, etc.; that he takes X-ray pictures; that he averages ‘ about 1,200 to 1,500 patients a year; that the average number of films taken of a patient would be six or seven; that the average number of films taken would be between 7,000 and 8,000 a year; that he had a wide experience in reading such films; that he also made a thorough study of the human anatomy; that he attended Sandra Marie Welter as a consulting specialist; that he first saw her on August 8, 1940; that he made X-ray views of most of the long bones, that is, the bones of the arms, forearms, hands, thighs and legs; that these films were made on August 8, August 12 and October 31. There were fourteen views. He said that in all of the films which were diagnostic and in which the child had not moved there was demonstrated at the distal end of the diaphyses of each of the long bones a transverse zone of increased density. In his opinion these transverse zones of increased density were caused by the deposit of lead in the calcium bone formation; that these zones of increased density were demonstrable in the films taken in August and' again in the films taken in October, the zones of increased density being in each instance at the epi- ' physial margin of the diaphyses of the long bones. He testified that there was no evidence of either rickets or scurvy shown by the films. He stated that these bands of density are abnormal and are shown on the ends of the shafts of practically all of the long bones; that when he spoke of density he meant there is some substance there that is more dense to X-ray than normal bone structure; that there is an abnormal condition there that casts a shadow that normal bone structure would not cast. He further testified that in the films made on October 31, the lines of density were more pronounced than in the films made in August. Answering a hypothetical question, he stated that in his opinion there could be a causal connection between the white paint found in the bottle and the child’s condition of ill-being. In response to further questions he stated that in his opinion the child was suffering from lead poisoning; that the transverse lines of density shown in the X-rays could be caused by the deposit of lead in the areas mentioned, associated with irritation, which would also cause an increased deposit of calcium in those areas, and that the lines of density, that is, the abnormal deposits across the ends of the bones, would remain there as bone abnormality during tbe individual’s life. He testified that he did not know the constituents of the paint described to him as having been found in the milk bottle, and that it would make a great deal of difference what the constituents were. If he assumed that there was no lead in the described white paint, it would not change his opinion as to the causal connection. He further stated, however, that if he was positive there was no lead in the paint, it would change his. opinion. Nevertheless, his diagnosis would be that the hypothetical individual suffered from lead intoxication because of the transverse bands of density in the long bones. He further testified that the only adequate explanation for the bands of increased density.was the lead which the hypothetical individual absorbed. . He testified that he knew something about the chemistry of paint ; that he did not know of -any outdoor white paints that do not contain lead in some form; that he did not know of any white paints used in painting buildings in which lead is not one of the principal constituents; that as far as he knew the basic mineral ingredient of white paint is lead oxide; that he did not know how much lead oxide there was in paint, but there must have been “enough to saturate the blood serum to a point of a toxic condition.” Donald Ferguson, called by plaintiff, testified that he was 19 years of age; that he was the owner of the Bust-Oleum Manufacturing Company and had been in business all his life; that they manufactured all types of paint, and that they manufactured white paint and interior and exterior paint; that he was familiar with the types of white paint, both interior and exterior; that not all outside white paints contain lead; that “we manufacture only one that does not contain lead. Most outside paints contain zinc oxide. Fot. all white paints contain zinc sulphite”; that lead is used in outside white paint to give more or less elasticity; that “around 98 per cent of the outside house paints that we have contain white lead. In our -paints they do, but I would not like to answer the question for other companies”; that he had been born right in the business; that he had been working in the plant two years in June 1939; that he went through high school; that he did not go to college; that he never studied chemistry; that “we had a chemist in our plant and I studied with him nights and Sundays. I got all my information through that and through the salesmen of large companies here in Chicago.”

John B. Trunk, called by defendant, testified that he was and had been for ten years a claim adjuster for the Bowman Dairy Company; that on April 22, 1940 he saw Mr. Heinz in the office of the Evanston Division of defendant corporation, who handed him an empty bottle with some white foreign substance on the bottom and an ordinary card tag tied to the neck; that he took the bottle to the main office of the defendant at 140 West Ontario Street, Chicago, and placed it in his locker, which he then locked and kept locked, except for such occasions as it was necessary for him to open it to remove clothing, until May 7, 1940, which was the day after he had a conversation with Mrs. Welter and one of the attorneys for plaintiff. He reported this conversation to the attorney for the defendant, and on May 8, 1940, in accordance with instructions received, took the bottle to the Moore Laboratory, 55 E. Washington street, Chicago, and delivered it to Miss Bandolín, an employee of the laboratory;- that the delivery occurred in the presence of Dr. Moore. Both Heinz and Trunk testified that during the time it was in their possession, they did not in any way tamper with the contents. Heinz further testified that as he recalled it, there was some writing on the tag on the bottle calling it to the attention of “A. E.,” and defendant’s exhibit 13 for identification was the same tag and the same bottle that he had received from Mr. Heinz. He identified the bottle and the tag from the appearance of the bottle. He placed no identifying marks of his own on the bottle. Miss Bandolín testified that on May 8, 1940 she received the milk bottle from Mr. Trunk; that she was ' instructed by Dr. Moore to take it to Dr. George Borrowman and to hand it to him directly; that she did this; that from the time she received it until the time she delivered it to Dr. Borrowman she did not remove anything from the bottle or change it in any way. Dr. George Borrowman, called by defendant, testified that he was a consulting chemist; that he was a graduate of the University of Minnesota and the University of Nebraska; that he majored subsequently in chemistry; that he had a State license and had been in business about 21 years; that during that time he had performed several thousand analyses on a variety of products. He identified the milk bottle delivered to him on May 8, 1940 by Miss Bandolín and said that since that time and the time he produced it in court, it had not been out of his possession. He further testified that when he received it, there was a layer of white substance on the bottom of the bottle, covering about one third of the bottom of the bottle and not exceeding one-sixteenth inch in thickness and white in color; that he got the substance out of the bottle with a long spatula; that it was moist and pasty enough so that it could be scraped out; that the first thing he did was to make a test for lead; that he had oxidized the organic matter, which woidd be linseed oil, by heating the substance with nitric acid and sulphuric acid; that he then took the sulphide residue and treated it with hot ammonium acetate; that if there is any lead the hot ammonium acetate will extract it; that he took the extract of the ammonium acetate and tested it for lead by adding potassium bichromate; that under such a test if there is any lead present the potassium bichromate would precipitate; that when he made that test nothing occurred; that there was no precipitation at all; that based upon his experience and knowledge of chemistry the only conclusion that could be drawn was that there was no lead in the sample; that at a subsequent time he performed a qualitative analysis of the substance; that the substance contained zinc in the form of sulphite and barium in the form of barium sulphate; that the only other things present were very small amounts of impurities; that he found no lead in this analysis and upon the basis of the qualitative analysis, he was able to determine what the substance was that was contained in the bottom of the bottle; that this substance was a type of paint known in commerce as Lithopone. He stated that this paint is one of the most common of white paints; that white paint in commercial use in April 1940, with the exception of paint known as “White Lead,”■ contained no lead; that the constituent of this paint, barium sulphate, was used principally in paints as a coloring matter, but in medicine was used to coat the inside of the stomach for the purpose of making X-ray pictures, and barium sulphate was the substance used for what is known as barium meal to make structures in the tissues stand out and show up in the negative; that it is one of the most soluble substances known to chemistry; that it would not be soluble in water or milk and would not be soluble in weak hydrochloric acid, which is the acid contained in the human stomach; that zinc sulphite, the other constituent of the paint, is not soluble in water or milk but would be quite soluble in weak hydrochloric acid; that it is a metal and, offhand, he-knew of no commercial use other than a pigment for coloring. On cross-examination, he stated that it is not true that all paints contain lead, but that white -lead is simply one of the outdoor paints. He further testified that for his findings it would not have made any difference if there had been a large amount of paint in the bottom of the bottle in his tests, so long as there was enough there to perform, the tests. He stated that zinc sulphite was not at all poisonous. He said he turned over a part of the substance that he had obtained from the bottom of. the bottle to Dr. McNally.

Dr. William D. McNally, called by defendant, testified that he was a graduate of the University of Michigan and Rush Medical College; that he had a license to practice in Illinois since 1920; that he was a toxicologist for the Cook County Coroner frorii 1913 to 1929, also Chief Coroner’s physician for the last five years of that period; that he had specialized during all this period in toxicology; that he had written over 150 articles for various medical journals and two text books; that he was then teaching at Rush Medical College; that on December 31, 1940, he obtained a substance from a bottle which had been produced by Dr. Borrowman. He identified the bottle as defendant’s exhibit 13. He testified that he had gotten this substance out of the bottle with a long spatula; that he put it in an envelope, and the following Tuesday, since the next two days were holidays, took it to the college and examined the residue for the presence of lead, barium and zinc; that he had made no qualitative analysis but had made a quantitative analysis for two substances, barium sulphate and lead; that the zinc sulphite was qualitative; that he had found this substance contained oxidized linseed oil 31 per cent, barium sulphate, and M.oo of a milligram calculated as metallic lead; that the amount of metallic lead when calculated back to the ordinary teaspoon would be about 1/400,000 of a teaspoon; that that was a common amount to find as an impurity in many substances; that nearly everything we eat or drink contains lead; that bread, milk, all butter fats, cereal, sugar, molasses, fruits, alcoholic beverages, especially wines and beer, contain lead; that he had also found barium sulphate and zinc sulphite; that those are common constituents of white paint; that they are most commonly found in what is termed flat white paints; that the form of lead found in white paints was lead carbonate; that the ordinary white lead paint contains about 80 per cent metallic lead; that he had not made any examination for titanium oxide in view of the fact that it had no significance in toxicology; that you could give a rabbit or dog titanium oxide for months and it would not suffer any ill effects; that barium sulphate is insoluble in everything except ammonium acetate; that barium sulphate is fed to a patient for a complete G. I. X-ray picture; that G. I. means the gastric intestinal portion of the stomach and bowels; and that barium is not poisonous. Answering a hypothetical question as to whether or not based upon reasonable medical certainty, there was any causal connection between the facts stated and the apparent ill-being of the child, he stated that in his opinion the symptoms of the child were not due to lead intoxication. He gave as his reasons for this that there was no increased white cell count; that there were no stipple cells found in the red blood count, and that in a lead poisoning one would find-in excess of 300 stippled cells per million red cells; that there was no lead found in the urine and no lead found in the stools; that -lead was a normal constituent of blood to the extent of l/100th of a milligram per 100 cc. and .09 milligrams in the case of urine. He pointed out that there was no lead found in the residue of the milk bottle, and stated that 1/100th of a milligram of lead in milk would have no effect on an individual whatsoever; that he had never encountered a red cell count of less than 3,650,000 in a very bad case of lead intoxication. He further stated that assuming an infant took by mouth enough lead to become acutely ill from lead poisoning, the effects would continue just a few days, because the lead is rapidly eliminated by the gastric intestinal tract when taken by mouth; that in an acute case of poisoning there was either recovery from the poisoning within a few days or the patient would die; that the common antidote for lead poisoning was milk; another was calcium gluconate taken either intravenously or by mouth. On cross-examination, he stated that in a case of lead poisoning, putting a child on barley water was the wrong treatment; that one should continue to give it milk. He further testified that he was well acquainted with paints; that the use of lead in paints was being done away with because it was affected by smoke and the paint would turn in just a few months and take on a brownish tinge, and that lead is being very generally eliminated from use in outdoor paints. He stated, on being questioned about his answer to the hypothetical question, that if he assumed that the substance had contained lead, that how much lead was in the bottle and in what form it was in the bottle would have to be known before hee would change his opinion as to whether or not there' had been any acute lead intoxication; that many of the forms of lead were absolutely insoluble and in consequence would not be absorbed in the blood.

Dr. Maximilian J. Hubeny, called by defendants, testified that he was licensed to practice medicine in Illinois in 1906 and had been specializing in X-ray for almost 30 years; that he was connected with the West Side Hospital, Henrotin Hospital, Grant Hospital, Chicago Municipal Tuberculosis Hospital, the hospital connected with the University of Illinois, and the Cook County Hospital; that at the Cook County Hospital he was Director of the Department of Roentgenology; that he had written about 33 papers on his specialty; that he had collaborated writing books on X-ray and X-ray therapy; that he had examined the 14 exhibits, being pictures of the bones; that in all of these pictures of the long bones he saw increased • bands of density located at the epiphysial line where the bone starts and the cartilage begins; that the increased bands of density at this point were well within the realm of normalcy, or might be suggestive of a very early and healing scurvy; that at these points there is an increased density which might be entirely due to the backing up of bone cells because the length of growth takes place principally in that region; that the bone at that point, because of the flare, was thicker through the shaft than at any other point; that that meant that the X-ray would have to travel through more obstruction and consequently would appear on the film as whiter than a point further up the shaft. He-stated, after an examination of the exhibits, that he did not find any evidence of a lead line and that the only pathology that was suggested in any of the films was the possibility of an early and healing scurvy, but he would not care to diagnose the case as one of early healing scurvy without further corroborative evidence. He stated that he had never seen the child; that he had seen the X-rays of children who had suffered from lead poisoning; that in lead poisoning you get quite a thickness of lines, depending upon the amount of lead deposited; that lead tends to deposit itself, in the long bones where the growth is most rapid and tends to be fixed in the bones in that area; that he could not positively say there was no lead in white paint; that he would prefer no