Swift & Co. v. Morgan & Sturdivant

• Decision Date: 28 June 1954
• Docket Number: No. 14629.,14629.
• Citation: 214 F.2d 115,49 ALR 2d 924
• Parties: SWIFT & CO. v. MORGAN & STURDIVANT.
• Court: U.S. Court of Appeals — Fifth Circuit

49 ALR 2d 924, 214 F.2d 115 (1954)

SWIFT & CO. v. MORGAN & STURDIVANT.

No. 14629.

United States Court of Appeals, Fifth Circuit.

June 28, 1954.

Welborn B. Cody, Atlanta, Ga., B. J. Mayer, LaGrange, Ga., Smith, Kilpatrick, Cody, Rogers & McClatchey, Atlanta, Ga., Lovejoy & Mayer, LaGrange, Ga., of counsel, for appellant.

L. M. Wyatt, LaGrange, Ga., Wyatt, Morgan & Sumner, LaGrange, Ga., of counsel, for appellees.

Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges.

BORAH, Circuit Judge.

Morgan and Sturdivant brought this action against Swift & Company for damages to a herd of dairy cows alleged to have been caused from eating cotton seed meal which defendant had manufactured and sold to plaintiffs as feed for animals but which was not suitable for that purpose in that it had been allowed to become putrid and unwholesome and contained poison and did poison plaintiffs' cows. There was a trial before a jury and a verdict for the plaintiffs. From judgment thereon defendant appeals.

On this appeal defendant contends chiefly that the trial court erred in failing to direct a verdict in its favor. It insists that the court should have excluded certain opinion evidence of expert and lay witnesses and that if such evidence had been excluded there was no evidence to support the verdict. In further support of this particular ground of appeal defendant urges upon us the contention that even if the opinion evidence was admissible, its weight was not sufficient to offset positive and undisputed facts that the cotton seed meal did not contain any poison or any substance harmful to livestock and its weight was not sufficient to overcome the effect of Section 42-212, Ga.Code Ann. This section provides that in any controversy arising under the provisions of the so-called Food and Drug Act the certificate of the State Chemist or other State officer making the analysis or inspection, when duly sworn to by such officer, shall be prima facie evidence of the facts therein certified.

There are several considerations which must be kept in mind on review of a case such as this: It is well settled law that cases are not to be lightly taken from the jury; that jurors are the recognized triers of questions of fact; and that negligence and what is the proximate cause of damages are questions of fact to be properly submitted to and determined by jurors from a consideration of all the attending facts and circumstances. On a motion for a directed verdict, it is the duty of the court to accept as true all the facts which the evidence tends to prove, and draw against the party making the motion all reasonable inferences most favorable to the party opposing the motion, and if the evidence is of such a character that reasonable men in an impartial exercise of their judgment may reach different conclusions, then the case should be submitted to the jury.

The evidence viewed in the light most favorable to appellee tended to show the following: At some undisclosed date appellant had a fire at its Albany, Georgia, plant where a large amount of cotton seed was stored. As a result some of the seed became wet. Following the fire, the seed were immediately shipped to appellant's plant at East Point, Georgia, for processing into cotton seed meal. Fifty sacks of the meal so processed were delivered by appellant in one hundred pound sealed bags at its plant to one McCall its dealer, who in turn, and in the same condition as received, delivered directly to appellees and to two other dairymen named Morgan and Johnson thirty, ten and eight bags respectively. This lot of fifty sacks was not processed by appellant in the usual manner and the seed were cooked longer than usual in order to remove any excess moisture. Appellant labelled this cotton seed meal "Prime Cotton seed meal", although the meal was not prime quality. It was off color and had a bad, sour, burned odor. Its fiber content was higher than guaranteed, contained more than the usual amount of linters and contained 620,000 spore and gas forming and heat resisting bacteria per gram as compared to 80,000 per gram for cotton seed meal purchased on the local market, despite the fact that it had been heated longer than usual in the manufacturing process. On the day following the day of the delivery of the cotton seed meal to appellees one of the appellees, Morgan, detected that the meal was off color from prime cotton seed meal and he communicated this fact to the dealer McCall from whom he had purchased the meal. McCall in turn telephoned appellant's manager reporting these facts and the latter, acting for the appellant, represented to McCall that the cotton seed meal was entirely proper for feeding livestock, and that Swift and Company guaranteed its meal to be wholesome and proper as feed for livestock. Upon receipt of this information appellees mixed this cotton seed meal in the usual feed formula they had been using, substituting only this particular cotton seed meal for other cotton seed meal they had previously been using. Appellees began feeding this off color meal to their healthy herd of cattle on the afternoon following the day of delivery which was a Friday. They fed it on Saturday morning and again that afternoon, and on the morning of the following day all of the cattle which had eaten the meal were ill and two of the bulls in the herd died. All of the sick cattle had scours and a loss of appetite but after appellees stopped feeding this newly acquired meal none of their cattle suffered a similar sickness although there was no change in conditions and appellees continued feeding the usual feed formula which consisted of cotton seed meal, wheat bran, snapped corn and minerals, except that other meal was substituted for the meal which they had purchased from appellant. The other two dairymen who had purchased a part of the lot of fifty sacks of cotton seed meal had the same experience with their cattle and when they fed this meal by mixing it in the feed formula they had been using, the cattle, theretofore healthy, became ill in about the same period of time and manifested the same general symptoms. When they stopped feeding this dark meal and substituted other meal therefor and continued feeding the same ingredients as before, there was no further illness in their herd of a similar nature.

The appellant contends that the court erred in failing to exclude certain opinion evidence of expert and lay witnesses who in substance were permitted to testify that in their opinion the cotton seed meal processed by appellant and used by the appellees in their feed mixture was the cause of such cows becoming sick. In support of this contention it is argued that in admitting this opinion evidence the trial court allowed the various witnesses to invade the province of the jury by expressing an opinion upon the ultimate fact which was to be passed upon by the jury. We do not at all agree.

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