E. I. du Pont De Nemours & Co. v. Ladner

• Decision Date: 14 June 1954
• Docket Number: No. 39116,39116
• Citation: 73 So.2d 249,221 Miss. 378
• Parties: E. I. DU PONT DE NEMOURS & CO. v. LADNER.
• Court: Mississippi Supreme Court

Page 249

73 So.2d 249

221 Miss. 378

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

No. 39116.

Supreme Court of Mississippi.

June 14, 1954.

Wells, Thomas & Wells, Jackson, Hall & Callender, Columbia, Carl E. Geuther, Wilmington, Del., and Walter D. Ford, Wilmington, Del., for appellant.

Morse & Morse, Williams & Williams, Poplarville, for appellee.

KYLE, Justice.

Frank Ladner, as plaintiff, recovered a judgment in the Circuit Court of Pearl River County against E. I. Du Pont de Nemours and Company, defendant, for the sum of $1,793; and from that judgment the defendant prosecutes this appeal.

The declaration was filed by the plaintiff on July 25, 1952, against Magnolia Soy Products Company, a corporation domiciled at Greenville, Mississippi, and E. I. Du Pont de Nomours and Company, a Delaware Corporation, as defendants. The plaintiff alleged in his declaration that during the month of December 1951 he purchased from L. J. Thigpen, a retail merchant, engaged in the business of selling cattle feed in the Town of Poplarville, several sacks of soybean meal to be used in feeding the plaintiff's dairy cattle; that he fed the meal to his dairy cattle, and that five of his cows sickened and died as a result of eating the meal. One other cow became sick, and her value as a milch cow was destroyed. The plaintiff alleged that the meal had been processed by the Magnolia Company, which owned and operated a plant at Greenville, and that Magnolia had used in the processing of the meal a chemical compound known as trichloroethylene, a compound manufactured and sold by the defendant Du Pont for use by manufacturers of soybean meal as a solvent in extracting oil from the soybeans. The plaintiff alleged that the processing of soybean meal by the use of trichloroethylene rendered the meal poisonous and unfit for cattle feed; that both Magnolia and Du Pont knew, or by the exercise of reasonable care should have known, that the processing of soybean meal by the use of tricholoroethylene as a solvent would make the meal unfit for use as cattle feed; that Du Pont had recommended and sold the chemical to Magnolia as a solvent to be used in the manufacture of soybean meal, knowing that the meal was to be used as food for cattle; that both defendants had breached their duties to the plaintiff and were guilty of negligence which proximately caused the death of the plaintiff's cattle.

Before the case was tried Magnolia effected a settlement of its liability for the sum of $675, and the plaintiff dismissed his suit against Magnolia.

In his declaration the plaintiff alleged that the defendant Du Pont owed to the plaintiff as a purchaser of soybean meal manufactured by Magnolia by the use of trichloroethylene the duty to inform the plaintiff, Magnolia, or the general public of the fact that tricholoroethylene, when used as a processing agent for the manufacture of soybean meal, rendered the meal poisonous and unfit for use as food for cattle, and the duty not to introduce said chemical compound and offer the same for sale in interstate commerce for use as a solvent in the manufacture of soybean meal to be fed to cattle.

The defendant Du Pont in its answer admitted that it was engaged in the business of manufacturing and selling trichloroethylene, and that it had sold said product in interstate commerce to Magnolia to be used in extracting soybean oil from soybeans; but the defendant denied the other allegations of the plaintiff's declaration, and averred that the declaration failed to state a claim against the defendant upon which relief could be granted.

Ladner testified that he owned about 40 head of cattle and that he was milking 20 cows at the time that he purchased the soybean meal. After purchasing the soybean meal he fed the cows daily a mixture of soybean meal and crushed corn, wheat shorts and beet pulp. About four weeks after he began feeding the soybean meal to the cattle, the cattle quit eating; their eyes became bloodshot; there was bleeding from the nostrils, some of them passed blood from their udders. Five of the cows died and one other cow was ruined for a dairy cow. Several other witnesses who had purchased soybean meal from L. J. Thigpen about the same time testified that their cattle had been affected in a similar manner. Dr. Vernon D. Chadwick, Executive Officer of the Livestock Sanitary Board, testified that he was notified of the diseases among the cattle in Pearl River County about December 21st. He made an immediate visit to the county and examined the diseased cattle on several farms. The animals appeared to be affected alike. The symptoms common to all seemed to be a weak and wobbly gait, hemorrhaging of the mucous membrane around the eyes and in the tail region. Some of the animals showed signs of diarrhea with a bloody tinge to the feces. Some of the animals showed two or three degrees of temperature. Dr. Chadwick testified that in his opinion soybean meal which had been processed by the use of trichloroethylene as a solvent, if fed to cattle over a considerable period of time, would eventually cause death; and that in his opinion the feeding of the tri-extracted soybean meal to the cattle which he had examined in Pearl River County caused the death of the cattle.

Dr. Raymond T. Vaughn of the Barrow-Agee Laboratories of Memphis, Tennessee, testified that he had analyzed a sample of the soybean meal which had been sent to him by the law firm of Williams and Williams, of Poplarville, Mississippi, in September 1952, and that he had found that the meal contained a trace of trichloroethylene in a quantity of three parts per million. He stated that he did not know whether that amount of trichloroethylene was poisonous to cattle or not. He had no experience in solvent extractions and he knew nothing about the manufacture of soybean meal. Dr. G. Worthen Agee, a qualified chemist of the Barrow-Agee Laboratories, testified that he was not familiar with the technical phases of extracting soybean meal by the trichloroethylene process; but he knew that trichloroethylene had been used by the soybean industry as a solvent in extracting oil. He had read a good deal of literature on the poisonous effects on cattle of soybean meal extracted by the use of trichloreoethylene. He stated that the first reference to the subject in point of time was contained in an article by Sir Stewart Stockman, of the Board of Agriculture and Fisheries, published in 1916. Stockman reported in that article that widespread deaths among cattle had occurred in southern Scotland, and that the deaths were caused by feeding soybean meal produced by trichloroethylene extraction. Agee also stated that there were outbreaks of diseases among cattle in Germany, France and Holland during the early twenties, all of which were traced to the feeding of soybean meal produced by trichloroethylene extraction method. From his study of the subject the witness could say that 'soybean meal produced by the process of extracting the beans with trichloroethylene has killed cattle in numerous instances and the meal can be regarded as extremely poisonous.' He stated that in his opinion the amount of the residual trichloroethylene in the meal was not important. The important factor is that the meal has been produced by that process. He stated that the tri-processed soybean meal seemed to be poisonous only to ruminants or cud-chewing animals. Swine seemed to thrive on it.

L. L. Ford, who supervised the construction of the Magnolia plant during the fall and winter of 1950-1951, testified that he visited other plants using trichloroethylene as a solvent prior to the construction of the Magnolia plant and made contacts with Du Pont as the producer of the trichloroethylene solvent. He stated that Du Pont's representatives furnished information concerning the use of the solvent in the processing of soybean meal, and advice concerning the erection and equipment of the plant. R. Stewart Armstrong, a solvents technician of Du Pont, visited the plant at frequent intervals as the work was nearing completion. Ford stated that he followed the directions given to him by Du Pont's representative in all matters relating to the erection of the plant and the installation of proper machinery, and that he read all of the literature sent to him by Du Pont on the subject of manufacturing soybean meal by the use of trichloroethylene as an oil extraction solvent. The plant was completed and manufacturing operations were commenced about March 15, 1951. Operations were discontinued sometime during the month of May and were not resumed until October.

The carload of meal which Thigpen purchased from Magnolia was purchased during the fall of 1951 and was received by Thigpen about November 11. Ford stated that the meal was processed from the 1951 soybean crop; and it appears from the record that the trichloroethylene used in processing the meal was a part of a shipment of trichloroethylene received from Du Pont during the month of May. No other shipment of trichloroethylene was made by Du Pont to Magnolia until sometime during the month of November.

In the meantime, Du Pont had become alarmed during the early summer because of the outbreak of a hemorrhagic disease among cattle in Minnesota on farms using only tri-extracted soybean meal; and on July 31, 1951, Du Pont wrote a letter to Magnolia strongly recommending that sales of tri-extracted meal be confined to outlets other than cattle feed until more definite information was available from investigations then under way. The investigations referred to were investigations undertaken by Du Pont and the University of Minnesota. Due Pont contributed several thousand dollars to help finance the study. On July 31, 1951, Du Pont issued its letter of warning to all manufacturers of soybean meal who were using trichloroethylene as a solvent recommending that the sales of tri-extracted meal be confined to outlets other than cattle feed, until...