241 F.2d 164 (4th Cir. 1957), 7289, Ralston Purina Co. v. Edmunds

Docket Nº:7289.
Citation:241 F.2d 164
Party Name:RALSTON PURINA COMPANY, Appellant, v. J. S. EDMUNDS, J. L. Edmunds and J. W. Edmunds, co-partners doing business as J. S. Edmunds and Sons, Appellees.
Case Date:January 25, 1957
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 164

241 F.2d 164 (4th Cir. 1957)

RALSTON PURINA COMPANY, Appellant,

v.

J. S. EDMUNDS, J. L. Edmunds and J. W. Edmunds, co-partners doing business as J. S. Edmunds and Sons, Appellees.

No. 7289.

United States Court of Appeals, Fourth Circuit.

January 25, 1957

         Argued Nov. 21, 1956.

Page 165

         David W. Robinson, Columbia, S.C. (C.W.F. Spencer, Jr., Rock Hill, S.C., and Robinson, McFadden & Dreher, Columbia, S.C., on the brief), for appellant.

         Augustus T. Graydon and C. T. Graydon, Columbia, S.C. (W. Gist Finley, York, S.C., on the brief), for appellees.

         Before SOPER and SOBELOFF, Circuit Judges, and THOMSEN, District judge.

         SOBELOFF, Circuit Judge.

         This is a controversy between turkey breeders and a manufacturer of turkey feed, in which the former claim that a turkey malady which hampered their breeding operations in 1955 was due to a change in the manufacturer's feed of which the plaintiffs were not forewarned. Since the appeal poses the question of sufficiency of the evidence to raise an issue for the jury, a somewhat detailed recital of the facts adduced by the plaintiffs is necessary.

         J. S. Edmunds and Sons, who were the plaintiffs below and are the appellees here, have been engaged in the turkey-raising business at Clover, South Carolina, for twenty-five years. Their method of operation is to purchase turkeys for breeding purposes, usually share cropping them to experienced turkey farmers. They maintain a hatchery for the eggs produced and then either sell the poults to other turkey growers or raise the young turkeys themselves. In addition, plaintiffs maintain a plant in which turkeys are processed for consumption by the public.

         Ralston-Purina Company, defendant-appellant, manufactures and sells feed and supplies for turkeys and other farm animals. Before the present controversy, Edmunds used Purina products exclusively in their own breeding program and sold turkey feed and supplies in the Clover area under a Purina dealership.

         The relevant background facts have their origin in 1954, when, for the first time, Edmunds had a flock of 'Berryman broad-breasted bronze' turkeys, a turkey strain purported to be of high breeding quality. These turkeys had been share cropped with a farmer named Penley, and his flock that year had the best production record ever achieved by any of Edmunds' turkey farmers. Attributing Penley's success to the lineage of the turkeys and hoping that all of the plaintiffs' share croppers might duplicate his performance the following year, plaintiffs, on December 14, 1954, purchased 2500 hens and 250 toms 24 to 26 weeks old, of the same strain, from the Berryman farm in Winchester, Kentucky. The turkeys were brought to Clover the next day and were distributed to Edmunds' three share croppers: Penley, Lawrence, and Hammond.

         Upon arrival the turkeys were vaccinated against fowl pox, and blood samples were taken and sent to the Clemson College Livestock Laboratory. Results of the tests indicated that twenty-three turkeys had either a positive or suspicious reaction to Salmonella Typhimurium, a disease which makes turkeys unsuitable for breeding purposes. Though the twenty-three diseased or suspected turkeys were killed when the laboratory report reached Clover, the condemned turkeys had mingled with the others in the interim. Another 150 blood samples, taken at the same time as the others, were spoiled and could not be analyzed; the samples were never replaced, and there is no certainty as to the actual condition of the fowl from which these samples were taken.

         Another circumstance to be noted is that upon arrival at Clover, South Carolina, the toms were immediately placed under artificial lights during the night time, and the hens were lighted about a week later. Such a procedure is designed to stimulate egg production.

         As plaintiffs were under contract to purchase Purina feed exclusively, the turkeys were immediately taken off their diet at Berryman's (Red Comb feed plus grain) and put on Purina Growing Chow, a complete feed not required to be supplemented by grain. This diet, however, was not long continued, inasmuch

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as mating and production were not far off, and the menu was again changed, on December 22, to Purina Breeding Chow supplemented by oats. This was a feed manufactured in pellet form, each pellet being 3/16-inch in diameter. The pellet, made according to a Purina formula, contained various ingredients and apparently had been an acceptable and successful turkey feed.

         For some time, Purina had planned to reduce the size of this pellet from 3/16-inch to 5/32-inch, the apparent reason for the change being the advantage that would accrue from employing the same size dies for turkey feed pellets and chicken feed pellets. Plaintiffs, however, were never informed of this prospective alteration in size, and after the change Purina continued its usual feed shipments to plaintiffs.

         While the change in size is undisputed, the plaintiffs also claimed (and the defendant denied) that the new pellets were different in color and harder in texture than the 3/16-inch pellets. There is no evidence of change in the formula.

         The exact date on which the new pellets were put in Edmunds' turkey troughs is not certain, but it was testified by Penley that on or about January 4, 1955, his flock was 'hollering' and refusing to eat. It was then, Penley says, that he noticed the smaller pellet in the trough. This according to plaintiffs' evidence, was the first that Edmunds or their share croppers knew of the change. At about this time, Penley testified, he also noticed that the turkeys' droppings were loose and white. Hammond and Lawrence, two of Edmunds' share croppers, testified that they discovered the smaller pellet on January 6 and January 12, respectively, and that their flocks slacked off in feed consumption, hollered, and had white droppings.

         The turkeys went into egg production in the middle of January, but without the success that plaintiffs had hoped for. The plaintiffs introduced...

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