Land O'Lakes Creameries, Inc. v. Hungerholt

Decision Date27 June 1963
Docket NumberNo. 17209.,17209.
PartiesLAND O'LAKES CREAMERIES, INC., a Corporation, Appellant, v. La Vern HUNGERHOLT, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Charles A. Bassford, Minneapolis, Minn., Nathan A. Cobb and Charles A. Bassford, of Richards, Montgomery, Cobb & Bassford, Minneapolis, Minn., on the brief, for appellant.

Walter E. Riordan, Minneapolis, Minn., William E. Kalar and Robert M. Austin, Minneapolis, Minn., on the brief, for appellee.

Before VOGEL, VAN OOSTERHOUT and RIDGE, Circuit Judges.

VOGEL, Circuit Judge.

This action was commenced by La Vern Hungerholt, plaintiff-appellee, against Land O'Lakes Creameries, Inc., defendant-appellant, to recover money damages for injuries allegedly caused by appellant's negligence in manufacturing and bagging commercial fertilizer. The jury returned a verdict in favor of the plaintiff in the sum of $90,400. Land O'Lakes thereafter moved for judgment notwithstanding the verdict or in the alternative for a new trial. From judgment in favor of Hungerholt which followed the denial of both motions, appeal was taken to this court.1 Diversity of citizenship and amount involved satisfy federal jurisdictional requirements.

Appellant is a Minnesota corporation and is engaged in the manufacture, distribution and sale of commercial fertilizer, feeds, dairy products and poultry, together with bags and containers therefor which it places on the market to be purchased and used by the general public. Among other products manufactured, distributed and sold by the appellant is a fertilizer known as 5-20-20, an inorganic chemical compound derived from a manufacturing process described as the TVA ammoniating process which was developed in 1952 or 1953 by the Tennessee Valley Authority. Appellant acquired the right to use the system of manufacture in November or December 1955.

It was and is the appellee's contention that the appellant knew or should have known that its 5-20-20 fertilizer contained a number of ingredients that were caustic and corrosive and extremely harsh to human tissue and that some of the ingredients were primary irritants which would cause dermatitis on a normal skin; that the appellant negligently and carelessly packaged and handled its fertilizer so as to deliver bags thereof to the appellee which were torn and defective and which allowed the contents to spill out on the appellee; that the appellant negligently failed to warn appellee by means of a label on its bag or to warn by other reasonable means of the danger and harm to which the appellee was exposed while lifting, loading and transporting the appellant's fertilizer; and that while handling the fertilizer and without knowledge as to its dangers, he sustained injuries and damages which have totally and permanently incapacitated him and have caused him great pain, suffering and expense.

Land O'Lakes claimed it had no duty to warn and premised its defense on its evidence that its fertilizer product is not dangerous or injurious to human health or life; that it is not a new or experimental product; that the industry has been established for many years; that standard raw materials and processes are used without variation or deviation from those used in the industry and that experience itself has provided more than adequate "testing" or "research". The defense further contended that even if some negligence could be attributed to Land O'Lakes, the appellee should be barred from recovery by reason of his own contributory negligence.

The appeal here from the judgment entered in the District Court is predicated upon alleged error in denying appellant's motion for judgment notwithstanding the verdict and denying appellant's motion for a new trial and, additionally, on alleged misconduct of appellee's counsel.

A fairly comprehensive recitation of the facts as disclosed by the record seems to be required. In considering such facts, we do so in light of the rule expressed in Ford Motor Co. v. Zahn, 8 Cir., 1959, 265 F.2d 729, 730:

"Since defendant\'s contention is that, under all the facts and circumstances of record, no submissible case was made, it is well to bear in mind the general rules governing any plea to displace a jury verdict: (1) All disputed fact questions and permissible inferences must be viewed in the light most favorable to plaintiff; (2) The question of negligence is usually for jury determination and it is only in rare situations, where there is no occasion for reasonable men to differ, that the question becomes one of law for the court; and (3) It is only where all or substantially all of the evidence is on one side, that a directed verdict should be entered. See Coca Cola Bottling Co. of Black Hills v. Hubbard, 8 Cir., 203 F.2d 859, 860, 861, and cases cited."

The record establishes the following: LaVern Hungerholt was employed by his brother in 1958 as a truck driver. He had been so employed for some ten or eleven months prior to the incident which gave rise to this cause of action. Hungerholt's duties included picking up fertilizer at appellant's plant in St. Paul and delivering it to various points in southern Minnesota. Most of the fertilizer carried by Hungerholt was of the type known as 5-20-20. At the Land O'Lakes plant he would load his truck by placing bags of fertilizer upon a conveyor belt running into his vehicle, picking the bags off the conveyor and piling them inside his truck. He had nothing to do with the raw materials that went into the fertilizer but handled only the finished product. During the course of the loading process, Hungerholt found that occasionally he would come upon a bag that had a puncture hole in it or was torn so that the contents of the bag would spill out on him when he handled it. If the tear were apparent, Hungerholt could set the bag aside, but when the defect was on the underside he would not be aware of it until he picked up the bag.

On September 8, 1958, Hungerholt was engaged in loading 5-20-20 fertilizer. One of the bags had been torn open on the underside and as he handled it, it spilled and a considerable amount of the fertilizer poured into one of his boots. On that particularly warm day Hungerholt was wearing a different type of shoe apparel. While in the past he had always worn oxfords, he had this time changed to an engineer's boot which fit more loosely and had an opening at the top. This was also the first time that the entire contents of a bag had spilled on him.

Hungerholt completed his loading duties, which took about an hour and a half. During that time he noticed a "burning" around his right ankle but did not stop loading. When he had completed his work, signed his orders, etc., he then emptied the fertilizer from his boot. Upon arriving at his home that evening, he, on taking a bath, discovered a red spot on his right ankle about the size of a 50-cent piece. The next day the redness started spreading up his leg. Hungerholt kept working for about five weeks, during which time the inflamed area spread over his entire body. After consultation with a clinic at Rochester, Minnesota, on October 11, 1958, Hungerholt was given a prescription and sent home for therapeutic baths. This treatment was continued for about four to five weeks. His condition improved. He then returned to work, again hauling fertilizer as part of his duties. During the period that he resumed his occupation as a truck driver he did not seek any further medical attention. His condition became worse, however, and in March of 1959 he consulted Dr. Sevenants, a specialist in dermatology, at LaCrosse, Wisconsin. At that time he had developed large blisters on his hands and feet. Dr. Sevenants hospitalized Hungerholt and treated him for a period of about three weeks. When he was discharged he was told not to return to work as a truck driver. As a result, he had no further contact with the 5-20-20 fertilizer. The condition subsequently flared up repeatedly and he was re-hospitalized on a number of occasions. In his present condition any pressure, excitement, work or heat will cause him to break out and even the simple effort of picking up one of his children will cause a reflaring of the inflammation. As no challenge is made here with reference to the seriousness of Hungerholt's condition, we omit further details.

Hungerholt testified, and his attending physician's examination and investigation bore him out, that neither he nor members of his family had any history of allergic reactions. Without objection, Hungerholt testified that others who handled the fertilizer had suffered skin irritation and "breaking out".

Philip F. Stocker, who supervised the production of fertilizer at the appellant's plant, was called by the appellee for cross-examination and testified to the process used in the manufacture of 5-20-20 fertilizer. Either anhydrous ammonia or Solution 490 was included in the process. Solution 490 consists of 34% ammonia, 60% ammonium nitrate and 6% water. Sulfuric acid, phosphates and potash were added to one of these materials. The end product, however, did not include any free acid or ammonia.2 According to Stocker, the 5-20-20 fertilizer could be made many different ways but the raw materials and the end product would be basically the same. Stocker testified that none of the materials in the finished product could be considered as primary irritants; that several of them were comparable to ordinary table salt; that he had personally handled them with no adverse effects; and, finally, that there had been no experience in the plant of employees being harmed by the ingredients of the fertilizer. He did admit that new employees got nosebleeds from working with the raw materials but that after a day or two the nosebleeds disappeared. He testified that some employees sustained inflamed areas or areas of irritation around the collar, but attributed this to perspiration. Stocker also testified that up until 1958 the...

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    ...Products, Inc., 244 F.2d 53 (2d Cir.1957); Hungerholt v. Land O'Lakes Creameries, Inc., 209 F.Supp. 177 (D.Minn.1962), aff'd 319 F.2d 352 (8th Cir.1963); Gerkin v. Brown & Sehler Co., 177 Mich. 45, 143 N.W. 48 (1913). But see Winthrop Laboratories Division of Sterling Drug, Inc. v. Crocker,......
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