VALDOSTA MILLING COMPANY v. Garretson

• Citation: 217 F.2d 625
• Decision Date: 28 January 1955
• Docket Number: No. 14997.,14997.
• Parties: VALDOSTA MILLING COMPANY, Appellant & Cross-Appellee, v. George GARRETSON and C. C. Garretson, Appellees & Cross-Appellants. George GARRETSON and C. C. Garretson, Appellees & Cross-Appellants, v. VALDOSTA MILLING COMPANY, Appellant & Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

217 F.2d 625 (1954)

VALDOSTA MILLING COMPANY, Appellant & Cross-Appellee, v. George GARRETSON and C. C. Garretson, Appellees & Cross-Appellants.

George GARRETSON and C. C. Garretson, Appellees & Cross-Appellants, v. VALDOSTA MILLING COMPANY, Appellant & Cross-Appellee.

No. 14997.

United States Court of Appeals Fifth Circuit.

December 15, 1954.

As Modified on Denial of Rehearing January 28, 1955.

Francis P. Conroy, Jacksonville, Fla., Marks, Gray, Yates & Conroy, Jacksonville, Fla., for appellant and cross-appellee.

Willard Ayres, Ocala, Fla., Greene, Ayres & Greene, Ocala, Fla., for cross-appellants and appellees.

Before BORAH, RIVES, and TUTTLE, Circuit Judges.

BORAH, Circuit Judge.

This is an appeal from a judgment of the District Court in favor of plaintiffs, George Garretson and C. C. Garretson, in an action to recover the value of five horses alleged to have died as a result of eating a poisonous substance contained in feed manufactured by defendant, Valdosta Milling Company. The action was commenced in the Circuit Court of Marion County, Florida, and removed on petition of defendant to the Southern District of Florida. Trial was had by jury and a verdict of $11,330.00 returned in favor of plaintiffs. From this judgment the defendant has appealed and the plaintiffs have cross-appealed.

The complaint alleged in substance that the defendant was engaged in the manufacture and distribution of commercial feeds for animals and in particular a brand known as "Arno-Better Horse and Mule Feed" which was registered with the Commissioner of Agriculture of Florida pursuant to F.S.A. § 580.02; that section 580.22 of that statute made it a misdemeanor for any manufacturer to sell any feeds mixed or adulterated with any substance or substances injurious to the health of livestock or poultry; that on December 11, 1948, the plaintiffs purchased a sack of "Arno-Better Horse and Mule Feed" from Roe's Grocery and Feed Store near Fellowship, Florida, and fed the contents of the sack to five Palomino horses owned by them; that this sack of feed contained a poisonous substance, Paris green, which poisoned and killed plaintiffs' five horses, and for which damages are claimed in the sum of $11,330.00 together with interest from the date of their deaths. The basis of the cause of action was the alleged negligence of defendant in allowing the feed to become contaminated with Paris green and the breach of an implied warranty of the fitness of the product for consumption by animals.

The cause came on for trial and at the close of plaintiffs' case in chief defendant moved for a directed verdict on the grounds that the evidence was insufficient to warrant submitting the case to the jury. Following the filing of this motion there was colloquy between the court and counsel outside of the presence of the jury and in the course of this colloquy the court indicated its views but did not affirmatively rule on the motion. At the close of all the testimony defendant renewed its motion and stated as new grounds therefor that there was no showing of any negligence and no competent or sufficient evidence to warrant the jury returning a verdict in favor of plaintiffs on the theory of implied warranty. The court held that there was insufficient proof of negligence to justify submission of this issue to the jury but instructed the jury that it could find for the plaintiffs under the implied warranty theory if it found "in effect that the feed contained poison when the defendant sold it — that is, when it left his plant." The jury so found.

The important questions here are: (1) whether under Florida law the doctrine of implied warranty should be applied in this case; (2) whether there was sufficient evidence to authorize a finding by the jury on the issue of implied warranty; and (3) whether the court erred in refusing to instruct the jury that interest on the value of the horses from the date of the death of the horses was allowable as an item of plaintiffs' damages and in instructing the jury that the form of verdict submitted precluded the recovery of interest.

Defendant is here insisting that the doctrine of implied warranty does not extend to provender sold for consumption by domestic animals and that there was no privity of contract between plaintiffs and defendant.

It is the general rule at common law that the doctrine of caveat emptor applies to all sales unless the seller expressly warrants against defects or a warranty is implied by operation of law. It is generally recognized that there is an implied warranty of fitness where food is sold for human consumption and most courts hold that this is so even in the absence of privity. Some courts extend this doctrine to feed sold for consumption by animals while others refuse to do so for the reason that the principle behind the rule is the protection of human life and therefore does not apply to mere property.

Although there has been no definitive statement by the courts of Florida extending the doctrine of implied warranty to foods for animals, the legislature has, we believe, statutorily so extended it. Section 580.22 of the Florida Statutes Annotated makes it a misdemeanor for any manufacturer to place in commerce any feed containing a substance injurious to the health of livestock or poultry.¹ A similar statute, the Florida Commercial Seed Law,² imposes strict liability upon a manufacturer for damages occasioned by placing seed on the market in violation of the provisions of that Act. Hoskins v. Jackson Grain Co., Fla., 63 So.2d 514, 515. In the Hoskins case the court said: "Where one violates a penal statute imposing upon him a duty designed to protect another he is negligent as a matter of law, therefore responsible for such damage as is proximately caused by his negligence." To like effect is Pine Grove Poultry Farm v. Newtown By-Products Mfg. Co., 248 N.Y. 293, 294, 162 N.E. 84, 85. There the action was for damages resulting from the death of a number of plaintiff's ducks which had eaten poultry feed manufactured by defendant which contained bits of steel wire. In that case the New York Court of Appeal said: "The Farms and Markets Law (Consol. Laws, c. 69) controls this case. Section 130 prohibits the sale of any concentrated commercial feeding stuffs containing any substances injurious to the health of animals * * *. The feed falls within the type of food defined by sections 128 and 130. It was proved to be injurious to the health of animals, and therefore its sale was prohibited. Violation of the duty to refrain from the sale of this feed as imposed by section 130 constitutes negligence as matter of law and anyone having a special interest in the performance of that duty may sue for a breach. * * * No element of ordinary negligence is essential. Violation of the statute becomes actionable default." Thus under the Florida statute as under the New York statute a manufacturer is negligent as a matter of law and liable for damages occasioned by placing feed on the market in violation of the act.

We come now to consider the claimed error on the part of the trial judge in refusing to direct a verdict for defendant. The rule is well settled that on a motion for a directed verdict the court must accept as true all the facts which the evidence tends to prove, and draw against the party making the motion all reasonable inferences most favorable to the party opposing the motion, and if the evidence is of such a character that reasonable men in an impartial exercise of their judgment may reach different conclusions, then the case should be submitted to the jury. Swift & Co. v. Morgan & Sturdivant, 5 Cir., 214 F.2d 115.

The evidence viewed in the light most favorable to the plaintiff tended to show the following: That on the evening of December 11, 1948, one of the plaintiffs, George Garretson, purchased a sack of "Arno-Better Horse and Mule Feed" at Roe's grocery near Fellowship, Florida, placed the sack on his tractor, and took it to his farm. Upon arriving there he emptied the contents of the sack into a metal drum which was used for the storing of feed for his horses. He then took three old army helmets, filled them with feed from the drum and fed approximately five pounds of feed to each of the five horses in the barn. After feeding the horses he filled a helmet about half full of feed and fed it to two colts in the pasture behind the barn.

The following morning, he went into the barn to feed the horses and found one of them dead, three others sick and groaning. The horses appeared to be in great pain, their bowels were running off and plaintiff immediately sent for a veterinarian who came and did what he could for them. All five of the horses...