McMillen Feeds, Inc. of Tex. v. Harlow
| Decision Date | 29 June 1966 |
| Docket Number | No. 11409,11409 |
| Citation | 405 S.W.2d 123 |
| Parties | McMILLEN FEEDS, INC. OF TEXAS et al., Appellants, v. Dale HARLOW, Appellee. . Austin |
| Court | Texas Court of Appeals |
Foreman, Dyess, Prewett, Henderson & Cantey, A. D. Dyess, Jr., Houston, Coleman Gay, Austin, for appellants.
Reuben Senterfitt, San Saba, Lee Curtis, Belton, Abney, Hammett & Lynch, J. V. Hammett, Lampasas, for appellee.
This is a products liability case. The appellee, plaintiff below, brought suit against the appellants feed companies for damages to his turkeys allegedly caused by feed furnished under contract. In response to special issues answered by the jury favorably to appellee, the court entered judgment against the appellants feed companies for $259,646.60.
We affirm.
Appellant McMillen Feeds, Inc. of Texas is engaged in the feed business and is a wholly owned subsidiary of appellant Central Soya. Appellants are in the business of producing and selling various animal feeds, including turkey feeds under the trade name of Master Mix.
Early in 1963 the parties hereto entered into a verbal agreement which included the following provisions:
Appellants sold, and were to deliver to appellee, Master Mix turkey feed from their plant at Lockhart, Texas to be used in feeding all of appellee's turkeys for the year 1963. The parties contemplated about 250,000 turkeys for the season, of which 158,050 were started.
The Master Mix turkey feed was to be fed according to appellants' directions.
The feed for some of the turkeys was to be a complete turkey feed (which was later delivered in appellants' sealed bags) to which the grower added nothing. The feed for the remainder of the turkeys was to be mixed with milo by the grower and fed according to appellants' directions.
Appellants were to deliver the Master Mix feeds partly in sealed bags and the remainder in bulk.
Appellants were to finance all of the turkey feed, including the milo that was to be purchased by appellee, the turkey poults, and such medication as might be necessary. The parties contemplated that it would cost about $3.40 to market each turkey of which 40cents was to cover the labor to be furnished by appellee. Appellants agreed to finance each bird at $3.00. As a part of this financing arrangement, it was further agreed that each flock would constitute a separate transaction, it being understood that as appellee would deliver the 1-day old poults in flocks of several thousand each to the grower's brooder, a set of security instruments (turkey feed agreement, notes, chattel mortgage) prepared and furnished by appellants would be executed by appellee and would apply only to that particular flock to which the instruments referred.
All of appellee's growers, (located at ten different locations scattered over a wide area of central Texas) as well as their respective farms, pens and ranges, brooders, houses and litter, their feeding and watering facilities and equipment for caring for the turkeys were to be inspected and approved by representatives of appellants in advance.
Appellants were to furnish an expert in the care and feeding of turkeys who was to make frequent visits to each flock to work with appellee and his growers, to check regularly on the feed consumption and growth rates of the turkeys. Their growth rates were to be measured by references to Dr. Scott's Turkey World charts. He was also to check feed requirements, health and medication, sanitation and other management practices, and finally, the marketing of the turkeys.
In response to this agreement, appellee placed about 158,050 turkeys with the various growers during the 1963 season. This season began around February 1 with the first flock and ended around January 2 or 3, 196j when the last flock was marketed; the milo used to mix with part of the feed delivered was to be, and according to the record was, U.S. Government number 2 grade, or better.
The feed was delivered as agreed. Some of the Master Mix turkey feeds were delivered by appellants directly into self-feeders and some were delivered into weather-proof storage bins on the grower's farms that had been previously approved by appellants for the purpose. Except to mix milo with the Master Mix feed in those instances calling for it, no changes or adulterations were ever made to any of the Master Mix turkey feeds after delivery thereof to the feeders or to the storage bins. The milo was mixed according to appellants' directions. The feed was fed within the times contemplated and intended by the parties, and at all times under and according to the directions of appellants' representative and any suggestion this representative made in reference thereto was followed by appellee.
At the beginning of the 1963 season, appellants moved one of their employees, a Mr. Don Hurst, from Ohio to Texas to service appellee's operation as agreed.
Prior to the start of the 1963 season several of appellants' representatives visited and approved all of the appellee's growers, their farms and equipment. Each of these growers had grown turkeys in the past.
The turkeys were located with 10 different growers whose farms were spread over an area of central Texas extending some 175 miles north-south and 70 miles eastwest, from Jolleyville near Austin to Desdemona and Rising Star and from San Saba to Eden.
Each flock of turkeys placed with a grower constituted a 'round.' Each grower handled at least two 'rounds' and some of them as many as three during 1963. Each flock or 'round' of 1-day old poults included both sexes. These were later divided into two flocks, one for each sex. The hens and toms were fed differently according to the directions of appellants. The hens were due to be sent to market at 22--24 weeks of age followed by the toms at 24--26 weeks of age.
As the turkeys reached the age of 14--16 weeks (having eaten Master Mix turkey feeds all of their lives) they began to show similar symptoms in all the flocks among all the growers over the wide geographic area involved. The birds lost color, became 'droopy' and unthrifty. Check-weights were significantly low and feed consumption abnormally high. When dressed, a sour, pungent odor pervaded the processing plant. This was an unusual condition not observed in any turkeys other than those fed on Master Mix turkey feeds, but present in all the turkeys that had been fed the Master Mix turkey feed.
Appellee noted the appearance of some of the symptoms in June and was concerned. Appellants' representative Hurst became concerned when the first flock went to market about June 6 and began searching for the cause when the toms from the same flock went to market about July 12.
Consequently, a large number of turkeys were examined at the State diagnostic laboratory in Stephenville, Texas and these reports disclosed that the birds examined had mycosis. These reports make no mention of copper poisoning which appellants contend was one of the causes of the turkeys' condition.
In connection with the mycosis and the copper poisoning, there were many expert witnesses called to testify for both parties to this lawsuit. Appellants contended that the mycosis found was a bacterial disease that damaged the turkeys unrelated to the feed. In addition, appellants claimed that the turkeys were damaged by the use of a product in the turkeys' water by the trade name of Ema-sol containing copper sulphate, that the use of Ema-sol caused copper poisoning.
Expert witnesses called by appellee were of the opinion that the mycosis found in the birds was a fungus condition, not caused by bacteria, and resulted from the feed used. Also, the evidence of copper poisoning was refuted. Several of these experts, as will be shown later in this opinion, were experts in the matter and made detailed examinations of the turkeys for appellee for the purpose of righting the conditions that were manifesting themselves. These experts testified that they did not find disease to be the problem and recommended that the turkeys' feed be changed.
Consequently, appellee divided a flock and fed and flock on feed from a competitive company and left the remainder on the Master Mix turkey feed. Appellants' representatives agreed that the birds on the competitive feed made a rapid and significant improvement over the birds fed Master Mix. A grower at Temple, Texas who had been using Master Mix changed his feed to a chicken feed with similar good results. Then appellants' representatives requested appellee to change the remainder of his turkeys to their chicken feed that contained no cotton seed meal. He did so and the turkeys immediately made significant improvement.
Appellants are before this Court on fifty-one points of error.
Their points of error one and two are those of the court in overruling the two defendant's motions for judgment non obstante veredicto. We overrule these points.
Appellants' points of error three through ten are their 'no evidence' points (no evidence to support the answer of the jury as such finding is contrary to all the evidence in the case) pertinent to the jury's answers to special issues numbers 1 through 8.
Special Issue No. 1 inquired solely as to cottonseed meal in defendants' turkey feed and was as follows:
'Do you find from a preponderance of the evidence that the Defendants sold and delivered to the Plaintiff turkey feed containing cottonseed meal in quantities harmful to Plaintiff's turkeys?'
Tue jury returned an affirmative answer to this issue and likewise to its companion issues numbers 2, 3 and 4 relating to producing cause, negligence and proximate cause, respectively.
Special Issue No. 5 was as follows:
'Do you find from a preponderance of the evidence that the Defendants sold and delivered to the Plaintiff turkey feeds that were unfit for feeding to Plaintiff's turkeys?'
The jury returned an affirmative answer to this issue and likewise to its companion issues...
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