EI Du Pont De Nemours & Co. v. Baridon

• Decision Date: 12 October 1934
• Docket Number: No. 9955.,9955.
• Citation: 73 F.2d 26
• Parties: E. I. DU PONT DE NEMOURS & CO. v. BARIDON.
• Court: U.S. Court of Appeals — Eighth Circuit

73 F.2d 26 (1934)

E. I. DU PONT DE NEMOURS & CO. v. BARIDON.

No. 9955.

Circuit Court of Appeals, Eighth Circuit.

October 12, 1934.

Willis J. O'Brien and John N. Hughes, both of Des Moines, Iowa (Hughes, O'Brien & Faville, of Des Moines, Iowa, and C. M. Spargo, of Wilmington, Del., on the brief), for appellant.

Charles E. Rendlen, of Hannibal, Mo., and Russell E. Ostrus, of Des Moines, Iowa (Rendlen, White & Rendlen, of Hannibal, Mo., on the brief), for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

SANBORN, Circuit Judge.

The Du Pont Company in the year 1928 was manufacturing and marketing a patented product known as "Semesan," a poisonous compound with a mercury base, and so labeled, which it advertised as a seed disinfectant or fungicide. The company recommended its use for the treatment of seeds, roots, and bulbs before planting, and represented it as a safe and beneficial plant disinfectant, and, by labels on the containers and by pamphlets furnished to customers through dealers, directed how it should be used. P. C. Baridon was a grower of, and dealer in, gladiolus bulbs, bulblets, and flowers. The bulbs and bulblets of the gladiolus are usually treated before planting with a fungicide or disinfectant to eradicate certain diseases to which they are subject. Mr. Baridon had heard a Du Pont salesman recommend "Semesan" for the treatment of gladiolus bulbs and bulblets before planting, and he was familiar with the defendant's sales literature advocating such use. He had used Semesan in 1927 in a weaker solution than was recommended by the company, apparently without serious injury to the bulbs and bulblets treated. In 1928 he treated some twelve million of his bulblets and a large number of his bulbs with this product, which he procured from a dealer in Des Moines, who in turn had bought it from the Du Pont Company. He procured from this same dealer pamphlets issued by the company which gave directions as to the strength of the solution to be used and the length of time the bulbs and bulblets should be immersed in order to secure the best results. The evidence shows that, so far as the strength of the solution and the period of immersion were concerned, Baridon in the treatment of his bulbs and bulblets was well within the teachings contained in the directions. He placed the bulbs and bulblets in sacks and dipped them into tanks containing the solution, leaving them there for less than the prescribed time. After removing them from the solution, he dried the bulbs, but did not either dry or immediately plant the bulblets. The sacks were drained, but the bulblets were left in the damp sacks, which were placed in barrels and shipped from Des Moines, Iowa, where they were treated, to Hampton, Iowa, where they were to be planted. They remained in the barrels for at least one week, and possibly two, before being put in the ground. Apparently all of that time they were damp with Semesan solution. Baridon explains this procedure subsequent to treatment by saying that it was customary for growers to keep the bulblets, which have a hard shell, damp for some considerable time before planting them, to soften the shell, and that the directions issued by the Du Pont Company did not prescribe a different treatment. After planting, the bulbs grew, but the bulblets did not. They were virtually destroyed by something, because bulblets from the same bins which were not treated with Semesan grew normally. Baridon attributed the failure of the treated bulblets to grow to the negligence of the Du Pont Company in failing to give proper directions for their treatment. In other words, he says that treating his bulblets with Semesan as directed by the Du Pont Company killed them, and that the Du Pont Company knew or should have known that such treatment would be likely to kill them. The company, on the other hand, attributed the destruction of Baridon's bulblets to his failure to dry them or to plant them immediately after they were treated, and to their being left damp and packed in wet sacks in barrels without necessary ventilation.

Baridon brought suit, alleging the representations made by the Du Pont Company as to the suitability and safety of its product for disinfecting gladiolus bulbs and bulblets, its giving of directions for the use of Semesan, his reliance upon the representations and directions given, the harmful character of the Semesan when used as directed, which the Du Pont Company knew or should have known, and the loss of his bulbs and bulblets and his consequent damage.

The Du Pont Company admitted making the Semesan, but denied that it was harmful when used as recommended; and alleged that there was no privity of contract between plaintiff and defendant; that it had printed upon the labels on the Semesan containers a nonwarranty of results; and that if the plaintiff suffered any loss, it was due to his own neglect and came from causes other than the treatment of the bulbs and bulblets with Semesan according to directions.

In addition to what has already been stated, the plaintiff's evidence tended to show that a Mr. Bailey, a nursery man of Minnesota, had treated his evergreen seedlings with Semesan as directed by the Du Pont Company, and that such seedlings had been damaged and destroyed; that the Du Pont Company had been notified by Mr. Bailey of his difficulties with its product; that several other gladiolus growers had used Semesan as directed, to their injury, although when used in a weaker solution than that prescribed it had proved either harmless or beneficial.

The defendant's evidence tended to show that Semesan, when used as directed, was beneficial; that gladiolus growers and others had used it with satisfactory results; that Mr. Bailey's trouble was in failure to follow directions, and that the plaintiff's trouble was due to his failure properly to care for his bulblets after they were treated.

The court charged the jury, in effect, that if they found from the evidence that the plaintiff had strictly followed the directions of the Du Pont Company in the treatment of his bulblets, and that his bulblets were destroyed solely because Semesan, when used in accordance with the directions of the Du Pont Company, was a harmful and dangerous product, the plaintiff was entitled to recover. The jury returned a verdict for $7,500 in favor of the plaintiff, and the defendant has appealed from the judgment.

The defendant challenges the correctness of the court's charge and the sufficiency of the evidence to support the verdict. It contends:

(1) That the fact that the product was patented and sold as a patented product relieves the defendant from any responsibility for any negligence with respect to the directions for its use.

(2) That the nonwarranty of results clause printed on the label attached to the containers constituted a complete defense.

(3) That the defendant did not owe to the plaintiff any duty, for the reason that he did not purchase the Semesan from it, but purchased it from a dealer, and hence there was no privity of contract between the plaintiff and the defendant.

(4) That there was no substantial evidence of negligence on the part of the defendant.

The first two contentions, we think, merit little discussion. If the defendant owed the plaintiff the duty to use reasonable care with respect to the giving of proper directions for the use of Semesan, and was liable for a breach of that duty, it would seem to be utterly immaterial whether the product was a patented or an unpatented one.

The nonwarranty of results printed on the label reads as follows: "The use of Semesan being beyond the control of the manufacturer, no guarantee, expressed or implied, is made as to the effects of such use, whether or not in accordance with these directions or claimed so to be." Clearly the most that could be claimed is that the clause notified the plaintiff that if his use of Semesan did not produce the effects which the defendant had represented that it would produce, there would be no cause of action for a breach of warranty. There was nothing about the clause to place him on notice that in using Semesan in accordance with directions he was acting at his own peril, and that if it destroyed his crop, no action for negligence would lie.

The defendant seeks to invoke the general rule that a manufacturer or vendor of an article is not liable to third persons, with whom he has no contractual relations, for negligence in the manufacture or sale of such article. The plaintiff, on the other hand, contends that this case falls not within the rule, but within the exceptions to it.

This rule and its exceptions and the reasons for both have been often and elaborately discussed. Perhaps the leading cases are Huset v. J. I. Case Threshing Mach. Co. (C. C. A. 8) 120 F. 865, 61 L. R. A. 303, and MacPherson v. Buick Motor Company, 217 N. Y. 382, 111 N. E. 1050, 1051, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440. The opinion in the former case was written by Judge Walter H. Sanborn, and in the latter by Judge (now Mr. Justice) Cardozo. See, also, Baxter v. Ford Motor Company et al., 168 Wash. 456, 12 P.(2d) 409, 15 P.(2d) 1118, 88 A. L. R. 521, and annotation page 527; Minutilla v. Providence Ice Cream Company, 50 R. I. 43, 144 A. 884, 63 A. L. R. 334, and annotation page 340; Flies v. Fox Brothers Buick Company et al., 196 Wis. 196, 218 N. W. 855, 60 A. L. R. 357; Victory Sparkler & Specialty Company v. Price, 146 Miss. 192, 111 So. 437, 50 A. L. R. 1454, and annotation page 1462; Foster v. Ford Motor Company, 139 Wash. 341, 246 P. 945, 48 A. L. R. 934, and annotation page 939; Heckel v. Ford Motor Company, 101 N. J. Law, 385, 128 A. 242, 39 A. L. R. 989, and annotation page 992; Pelletier v. Dupont, 124 Me. 269, 128 A. 186, 39 A. L. R. 972; Chysky v. Drake Brothers Company, 235 N. Y. 468, 139 N. E. 576, 27 A. L. R. 1533; Davis v. Van Camp Packing Company, 189 Iowa, 775, 176 N. W. 382, 17 A....