Boehm v. Fox

• Decision Date: 07 February 1973
• Docket Number: No. 72-1417.,72-1417.
• Citation: 473 F.2d 445
• Parties: Robert BOEHM and Catherine Boehm, Plaintiffs-Appellees, v. Wayne F. FOX et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

473 F.2d 445 (1973)

Robert BOEHM and Catherine Boehm, Plaintiffs-Appellees, v. Wayne F. FOX et al., Defendants-Appellants.

No. 72-1417.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted January 9, 1973.

Decided February 7, 1973.

Robert W. Green, Ottawa, Kan., for plaintiffs-appellees.

William Koehn, Des Moines, Iowa (Felix G. Kancel, Jr., Kansas City, Kan., on the brief), for defendants-appellants.

Before BREITENSTEIN, McWILLIAMS and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

The Boehms filed a complaint for damages against Triple "F" Feeds resulting from the use of a feed additive known as Proto-Tone fed to the Boehms' dairy herd. The complaint was based on alternative theories, one of negligence, the other on breach of express and implied warranties. Triple "F" Feeds appeals from the jury award and subsequent judgment allowing the Boehms $9,000.00 in compensatory damages and $7,500.00 in punitive damages.

The Boehms operate a dairy farm in Franklin County, Kansas. On September 30, 1968, Eldon Fuller, a part-time salesman for Triple "F" sold Mr. Boehm 50 pounds of a feed additive called "Proto-Tone 336, Medicated". Fuller told Boehm that his herd would realize 25% more milk production and that the additive would not hurt the dairy cattle. Fuller instructed Boehm to feed four pounds more feed per day to each cow, together with two ounces of Proto-Tone, per head per day.

About October 1, 1968 Boehm began feeding his dairy herd Proto-Tone. Total milk production increased but at the end of October the cattle began looking skinny. During November the cows quit eating. They became thinner and milk production dropped. On November 8, 1968 Boehm called a veterinarian, W. H. Hay, D.V.M. The herd was sick, nervous, had mastitis, and ketosis. Hay recommended that the herd be removed from Proto-Tone. This sudden withdrawal decreased the milk production, so Mr. Boehm and the veterinarian consulted the Triple "F" manager who told them to return Proto-Tone to their diets at one-half of the prior dosage. He stated that the product should never be withdrawn suddenly from a herd. The cattle remained sick and their milk production stayed down.

Mr. Boehm testified that he increased the cattle's feed from 24 pounds per day to 34 pounds per day. Another witness stated that Boehm did not increase their feed. Boehm sold 4 cows in March and 5 cows in May of 1969 because they were not producing. He testified that he sold the cows for less than their value because of their sickness; that the value of his herd decreased after using Proto-Tone; that he had to pay for veterinary services; and that he had to spend extra time in caring for the herd.

Triple "F" contends that the trial court erred: (1) in submitting the issue of punitive damages to the jury; (2) by admitting Mr. Boehm's testimony based on summaries not in evidence; (3) in submitting the issues of breach of express or implied warranty to the jury; and (4) in allowing Mr. Vaupel to testify on rebuttal.

I.

Triple "F" alleges that the trial court erred in submitting the issue of punitive damages to the jury because there was no evidence of gross negligence or wanton or willful conduct. It contends that its motion for a directed verdict should have been granted.

Under Kansas law punitive damages are allowed in cases where there is malice, fraud or a willful and wanton disregard of the rights of others. Worden v. Tri-State Insurance Company, 347 F.2d 336 (10th Cir. 1965). Wantonness is characterized by a realization of the imminence of damage to others and a restraint from doing what is necessary to prevent the damage because of indifference as to whether it occurs.

Although the Boehms alleged certain facts which, if proved, might justify punitive damages, the Court held that the only evidence which would justify a jury instruction on punitive damages was Mr. Fuller's failure to instruct the Boehms that the product had to be withdrawn gradually. The record discloses that Fuller was a part-time salesman who had no training other than information he received from his area supervisor when he sold Boehm the Proto-Tone. A month later Fuller went to a school to learn about the products he had been selling. Although Fuller testified that he told Boehm to withdraw Proto-Tone gradually, this was disputed by Boehm who stated that he was not told anything about withdrawal. On cross-examination Fuller admitted that he was not sure whether he had told Boehm how to withdraw the product. However, Fuller said that he gave Boehm some pamphlets about Proto-Tone, including Bulletin 871 (Exhibit A), which explained how to withdraw it. Mr. Boehm, on the other hand, said that he did not receive Bulletin 871. On June 2, 1969, in a statement to a Mr. Winter, Fuller expressed some doubt about whether he had given Mr. Boehm Bulletin 871. These conflicts in the testimony were issues of fact to be resolved exclusively by the jury. Jaeco Pump Company v. Inject-O-Meter Manufacturing Company, 467 F.2d 317 (10th Cir. 1972). Jurors are the exclusive judges of the credibility and weight to be given to the testimony of any witness. United States v. Plemons, 455 F.2d 243 (10th Cir. 1972); United States v. Frazier, 434 F.2d 238 (10th Cir. 1970). Jury determinations and awards are presumed correct and will not be preempted unless they are clearly against the weight of the evidence. Champion Home Builders v. Shumate, 388 F.2d 806 (10th Cir. 1967). There was substantial evidence on which the jury could rely in allowing punitive damages in that the Boehms were not told how to withdraw the product.

II.

Triple "F" contends that the trial court erred in admitting Boehm's testimony relating to loss of milk production from summaries he had taken from records not in evidence because the testimony was hearsay, speculative and improper opinion, lacking proper foundation to prove damages. Triple "F" argues that since neither the summary nor the records upon which it was based were introduced into evidence, it was error to permit Boehm to refer to the summary in violation of the best evidence rule.

Mr. Boehm testified from a summary prepared in his own handwriting taken from voluminous records made by his milk hauler relating to his milk production losses after using Proto-Tone. He testified that his milk production in November, 1968, was down 5,000 pounds from November, 1967; that it was down 9,984 pounds in December, 1968, as compared to December, 1967; that it was down 6,430 pounds in January, 1969, as compared to January, 1968; that it was down 12,237 pounds in March, 1969, from March, 1968; and that it was down 13,000 pounds in May, 1969, from May, 1968. Boehm testified that his...