B & D Corp. v. Anderson, Clayton & Co.
| Decision Date | 02 April 1979 |
| Docket Number | No. 1-177A1,1-177A1 |
| Citation | 180 Ind.App. 115,387 N.E.2d 476 |
| Parties | B & D CORPORATION, Downen Enterprises, Inc., John Ellerman, Foster Farms, Hartman Farms, Inc., John Kolhouse, Lannan Farms, Inc., Heath Marchino and Brent Marchino d/b/a Marchino Bros. Farms, Don Nowaskie, Thompson Farms, Inc., and George Wilson, Appellants (Plaintiffs Below), v. ANDERSON, CLAYTON & COMPANY, Asgrow Seed Company, Cargill Incorporated, Dekalb Agresearch, Inc., Edward J. Funk & Sons, Inc., Funk Bros. Seed Company, Lowe Seed Company, Midwest Seed Growers Association, Inc., Pioneer Corn Company, Inc., Princeton Mining Company, Inc., d/b/a Princeton Farms, Stull Brothers, Inc., Todd Hybrid Corn Company, Inc., Trojan Seed Company, Northrup, King & Company, W. R. Crace Co. (Pag. Div.), Defendants-Appellees. |
| Court | Indiana Appellate Court |
Baker & Daniels, Indianapolis, Bamberger, Foreman, Oswald & Hahn, Evansville, Barnes, Hickam, Pantzer & Boyd, Indianapolis, Cox, Zwerner, Gambill & Sullivan, Terre Haute, Dorsey, Windhorst, Hannaford, Whitney & Halladay, Minneapolis, Minn., Dunn, Brady, Goebel, Ulbrich, Morel & Jacob, Bloomington, Ill., Fulmer, Byrum & Gagnon, Indianapolis, Granger, Butz, Blanke, Mortell & Jaffe, Kankakee, Ill., Ice, Miller, Donadio & Ryan, Indianapolis, King, Deep & Branaman, Henderson, Ky., Krieg, DeVault, Alexander & Capehart, Indianapolis, Barce, Barce & Vann, Kentland, Locke, Reynolds, Boyd & Weisell, Indianapolis, Lord, Bissell & Brook, Chicago, Ill., McDonald, McDonald & Nixon, Princeton, Obear, Overholser & Smith, Delphi, Rocap, Rocap, Reese & Young, Indianapolis, Sidley & Austin, Chicago, Ill., Stuart, Branigin, Ricks & Schilling, Lafayette, Michael K. Phillips, Boonville, for defendants-appellees.
Plaintiffs-appellants B & D Corporation, et al. (Corn Farmers) appeal a final judgment of Warrick Circuit Court against Corn Farmers and in favor of Anderson, Clayton & Company, et al. (Seed Companies) with respect to all claims based upon alleged joint action by Seed Companies, the denial of Corn Farmers' motion for leave to file a second amended complaint, and the severance of remaining claims against Seed Companies into separate actions.
In this purported class action suit filed in 1972 on behalf of themselves and other similarly situated U.S. corn farmers, Corn Farmers seek damages for crop losses occasioned by the 1970 corn blight because of, they allege, defective seed corn unusually susceptible to the blight distributed by the Seed Companies.
This procedurally convoluted and protracted litigation was initiated by Corn Farmers' January 1972 complaint which alleged, Inter alia, negligence and breach of warranty. This initial pleading spurred a
storm of papers filed by separate Seed Companies; included in those filings were alternative motions to dismiss or to sever and proceed separately, and motions to sever claims or be dropped as a party. In June 1972, Corn Farmers amended their complaint to add still more defendants, assert the joint and several liability of defendants, and allege a count sounding in strict liability. Corn Farmers later moved for leave of court in October 1974 to amend the complaint for a second time, in part, to include certain allegations of fact concerning "joint and concurrent action" by Seed Companies. The trial court's April 9, 1976, judgment refusing this further amendment lead to this appeal which requires our resolution of two dispositive and interrelated issues:
I. Whether the Seed Companies were presented sufficient notice of a claim based on joint action in Corn Farmers' amended complaint.
II. Whether the trial court abused its discretion in denying Corn Farmers' motion for leave to file a second amended complaint.
We affirm.
Corn Farmers' June 1972 amended complaint (omitting caption), in pertinent part, took the following form:
Part I. Description of Defendants
Plaintiffs, and each of them, for First Claim against defendants, and each of them, allege and say that:
(1) The defendants are those companies and corporations who are named in the caption of this amended complaint, and all persons, firms and organizations whose names are presently unknown to plaintiffs who had sales in excess of $500,000 of Texas male sterile hybrid seed corn in the United States for the 1970 crop season. Each defendant is engaged in the hybrid seed corn business, including research, growing, and selling hybrid seed corn throughout the United States. Each defendant transported or delivered for transportation in interstate shipment so-called Texas Male Sterile hybrid seed corn (hereafter called "T hybrid seed corn") for the 1970 crop season.
(2) Defendants are jointly and severally liable to plaintiffs arising out of the same occurrence and series of occurrences and common questions of law or fact arise in this action.
Part II. Description of Plaintiffs
Part III. Negligence on the Part of Each Defendant
(7) Each defendant knew or should have known at the time T hybrid seed corn was sold to plaintiffs for the crop year 1970 that T hybrid seed corn was unusually susceptible to the blight and was also susceptible to another similar corn disease commonly called yellow leaf blight caused by the fungus phyllosticta zeae (hereafter called "yellow blight").
(8) Each defendant carelessly or negligently
(a) relied almost exclusively on T hybrid seed corn thereby making said corn crop more susceptible to the hazard and danger of an epidemic;
(b) relief almost exclusively on continuous inbreeding of a single cytoplasm, namely, the Texas Male Sterile cytoplasm, thereby making said corn crop more susceptible to the hazard and danger of an epidemic;
(c) failed to warn plaintiffs that the blight or yellow blight had been found in T hybrid seed corn at different times and places commencing as early as 1961;
(d) failed to warn plaintiffs that T hybrid seed corn was highly susceptible to the blight and to yellow blight;
(e) violated the law of the land, namely * * * (the "Federal Seed Act") in that each misleadingly advertised or labeled T hybrid seed corn so as to fail to advise plaintiffs that
(1) each defendant was relying almost exclusively on T hybrid seed corn thereby making said corn crop more susceptible to the hazard and danger of an epidemic (2) each defendant was relying almost exclusively on continuous inbreeding of a single cytoplasm, namely, the Texas Male Sterile cytoplasm, thereby making said corn crop more susceptible to the hazard and danger of an epidemic;
(3) the blight and yellow blight had been found in T hybrid seed corn at different times and places commencing as early as 1961; and
(4) T hybrid seed corn was highly susceptible to the blight and to yellow blight;
(f) failed to adequately test T hybrid seed corn;
(g) failed to adequately research susceptibility of T hybrid seed corn to blight;
(h) failed to adequately research the effects of relying almost exclusively on continuous inbreeding of a single cytoplasm, namely, the Texas Male Sterile cytoplasm;
(i) committed other acts or omissions well known to each defendant but not known to plaintiffs at this time.
(9) As a result of such carelessness or negligence on the part of defendants, and each of them, a blight epidemic infested the 1970 crop yielded from T hybrid seed corn.
(10) The blight epidemic reduced the 1970 crop yield from T hybrid seed corn by no less than 500 million bushels in the United States.
(11) As a further result of the facts hereinabove set out, plaintiffs and all members of the class they represent herein, lost part of their 1970 crop and were damaged thereby.
Part IV. Breach of Warranty by Each Defendant
Plaintiffs, and each of them, for Second Claim against defendants, and each of them, allege and say that:
(13) At the time T hybrid seed corn was sold to plaintiffs and all members of the class they represent herein for the crop season 1970, each defendant was a merchant with respect to T hybrid seed corn.
(14) Each defendant impliedly warranted by operation of law that all T hybrid seed corn sold to plaintiffs and all members of the class they represent herein for the crop season 1970 was merchantable.
(15) Such T hybrid seed corn was not merchantable in that it was highly susceptible to the blight.
(16) As a result of such breach of warranty on the part of defendants, and each of them, a blight epidemic infested the 1970 crop yielded from T hybrid seed corn.
(18) As a further result of the facts hereinabove set out, plaintiffs and all members of the class they represent herein, lost part of their 1970 crop and were damaged thereby.
Part V. Strict Liability in Tort of Each Defendant
Plaintiffs, and each of them, for Third Claim against defendants, and each of them, allege and say that:
(20) Said T hybrid seed corn was expected to and did reach each of the plaintiffs and all members of the class represented by the plaintiffs herein without substantial change in the condition in which said seed was sold, by defendants.
(21) Said seed was sold by said defendants in a defective condition unreasonably dangerous to the property of the users thereof, namely each of the plaintiffs and all members of the class represented by the plaintiffs, in that said seed was highly susceptible to the blight.
(22) As a result of the facts hereinabove set out, plaintiffs and all members of the class they represent herein, lost Corn Farmers' sought-for second amended complaint was substantially the same as the amended complaint, Supra ; however, the Corn Farmers sought to add to the first count, a which reads:
part of their 1970 crop and were damaged thereby.
8. Defendants, and each of them, at all times material herein, acted...
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