Brown v. Globe Laboratories, Inc., 34148

CourtSupreme Court of Nebraska
Citation84 N.W.2d 151,165 Neb. 138
Docket NumberNo. 34148,34148
PartiesJean R. BROWN, Appellee, v. GLOBE LABORATORIES, Inc., a corporation, Appellant, Impleaded with: Frank A. Jelen and Dr. Jelen's Veterinary Supply Corporation, a Corporation, Appellees.
Decision Date12 July 1957

Page 151

84 N.W.2d 151
165 Neb. 138
Jean R. BROWN, Appellee,
GLOBE LABORATORIES, Inc., a corporation, Appellant,
Impleaded with: Frank A. Jelen and Dr. Jelen's Veterinary Supply Corporation, a Corporation, Appellees.
No. 34148.
Supreme Court of Nebraska.
July 12, 1957.

Page 153

Syllabus by the Court.

1. It is not necessary that a dormant partner or a nominal partner be joined as a plaintiff if his nonjoinder does not in any way injure the defendant.

2. Where a contract is entered into and the subject matter thereof executed by a person in his own name, the fact that he is a member of a partnership, even if the other partners share in the profits, does not make it necessary to join them as parties.

3. Before any state can subject a foreign corporation to the jurisdiction of that state such corporation must have either expressly consented to such jurisdiction or must have done sufficient business therein to constitute a submission to such jurisdiction.

4. No all-embracing rule can be laid down as to just what constitutes the doing of sufficient business in a state by foreign corporation in order to subject it to process of that jurisdiction. Each case must necessarily be determined by its own facts.

5. A sales manager of a foreign corporation who exercises judgment and discretion in the conduct of the corporation's affairs within this state is, within the meaning of the statute relating to service of process on such corporations, a managing agent thereof notwithstanding his acts and doings [165 Neb. 139] as such agent may refer only to a part of the business transacted by the corporation.

6. In order for an express warranty to exist there must be something positive and unequivocal concerning the thing sold which the vendee relies upon and which is understood by the parties as an absolute assertion concerning the thing sold, and not the mere expression of an opinion.

7. Representations which merely express the vendor's opinion, belief, judgment, or estimate do not constitute a warranty. Dealer's talk is permissible; and puffing, or praise of the goods by the seller is no warranty, such representations falling within the maxim simplex commendatio non obligat.

8. The Uniform Sales Act adopted by Nebraska provides in effect that where the buyer makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill and judgment, there is an implied warranty that the goods shall be reasonably fit for such purposes.

9. The fact that the article had a trade name does not necessarily negative the existence of an implied warranty for fitness for a particular purpose when it is purchased not by name but for a particular purpose.

10. Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony but are generally regarded as purely advisory in character; a jury may place whatever weight it may choose upon such testimony and may reject it, if it finds that it is inconsistent with the facts in the case or otherwise unreasonable.

11. The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary cause of events, from the breach of warranty.

Kennedy, Holland, DeLacy & Svoboda, William Mueller, George W. Becker, G. L. DeLacy, Omaha, for appellant.

Harold A. Prince, Grand Island, Gross, Welch, Vinardi & Kauffman, Omaha, for appellee.


Page 154

[165 Neb. 140] WENKE, Justice.

This is an appeal from the district court for Douglas County. It involves an action brought by Jean R. Brown against Globe Laboratories, Inc., a corporation; Frank A. Jelen; and Dr. Jelen's Veterinary Supply Corporation, a corporation. The action is based on alleged breaches of express and implied warranties of a product, Clostridium Perfringens Type D Bacterin, produced and put on the market by defendant Globe Laboratories, Inc., to be used for the prevention of Enterotoxemia in sheep. Plaintiff alleges he used it for that purpose on a large number of lambs and claims its use resulted in the death of 2,138 of the lambs he caused to be vaccinated therewith and in serious injury to a large number of the balance all because, as he claims, the bacterin used was not fit to immunize the lambs from Enterotoxemia and also because it was contaminated with some foreign substance which was injurious and poisonous to his lambs. He claims damages because of the death and injuries to his lambs which he alleges resulted from the use of this bacterin to vaccinate his lambs. Trial was had. A jury returned its verdict for the plaintiff and against Globe Laboratories, Inc., for the sum of $35,609.50 on which judgment was entered. Globe Laboratories, Inc., filed an alternative motion for either a judgment notwithstanding the verdict or for a new trial. The trial court overruled this motion and Globe Laboratories, Inc., has taken this appeal therefrom.

This being a law action we shall consider the evidence adduced according to the principle applicable in such cases and not reverse the verdict of the jury unless it is clearly wrong. The principle applicable is stated in Welstead v. Ryan Construction Co., 160 Neb. 87, 69 N.W.2d 308, 309, as follows: 'In determining the sufficiency of evidence to sustain a verdict it must be considered most favorably to the successful party, any controverted fact resolved in his favor, and he must have the benefit of inferences reasonably deducible from it.'

[165 Neb. 141] Appellee, Jean R. Brown, who was 46 years of age at the time of trial, is a native of Clarks, Nebraska, and lives in that town. By vocation he is a farmer and feeder with over 20 years of successful experience in buying, feeding, and marketing lambs, having fed between 400,000 and 500,000 lambs in his lifetime and as high as 40,000 in a single year. At all times herein material he had two feed lots near Clarks, with sheep pens, which he used in connection with his lamb feeding operation, one is referred to as the north place and the other as the home place. These two feed lots are about 3 1/2 miles apart, the closest one to Clarks being some 2 1/2 miles distance therefrom. The pens at these two feed lots were so constructed that the lambs in the different pens used the same tanks for watering and the partition fences were so constructed that although the sheep in the different pens could not intermingle they could touch each other, especially with their heads. A common supply of feed was used in feeding the lambs in the various pens.

Appellee always purchased high quality or reputation lambs for feeding, such lambs usually averaging between 70 and 75 pounds and were in full wool. The lambs are then fed from 75 to 90 days when they ordinarily reach top quality and are in 'Full Bloom' as a well-fed and finished lamb is referred to in the trade. When finished a lamb should weight about 100 pounds. Appellee had become entirely familiar with the eating habits of lambs. The usual procedure in feeding lambs, at the time herein material, was to give them ground hay and a little oats for 2 or 3 weeks after they were shipped in in order to get them over the effects of shipping; then to vaccinate them for the purpose of immunizing them against Enterotoxemia, which disease will be hereinafter more fully described; then to wait another 10 or 12 days before putting them on full feed in order to give the bacterin used the necessary time to have its effect; and thereafter to gradually work the lamb onto a heavier diet for the purpose of fattening and [165 Neb. 142] finishing. The usual heavier

Page 155

feeding consists of a daily ration of 2 1/2 to 3 pounds of corn, 1/4 pound of protein, and 1 pound of ground hay, which ordinarily produces an average daily gain of 1/3 pound. The purpose thereof is to get the lamb to 'Full Bloom' as quickly as possible.

There are present in the soil bacteria or germs of a spore type called Clostridium Perfringens Type D and they are also usually present in the intestinal tract of sheep and lambs. Under ordinary conditions these bacteria or germs are not harmful. However, when lambs are put on a heavy diet of rich feeds, such as is done in commercial feeding and finishing, these bacteria or germs multiply very repidly and produce a toxin which is poisonous and when sufficient thereof is absorbed into the bloodstream of the lamb from its digestive tract the result is fatal. This condition is brought about because the rich feeds neutralize the acidity of the intestines and allow them to absorb the toxin. It is called Enterotoxemia and is also referred to as pulpy kidney disease, overeating disease, and feed lot disease. To prevent this condition from developing in lambs when in a feed lot being fattened for market it was formerly necessary to give them more rough feed, thus extending the time necessary to bring them to a finished condition. In order to enable the feeder of lambs to cut down this time and not lose more than the normal amount, which is ordinarily not over 2 percent, there was developed a vaccine for the purpose of preventing this disease or immunizing lambs therefrom called Clostridium Perfringens Type D Bacterin, which we shall hereinafter refer to as bacterin. If first came on the American market in 1948, being produced and marketed by the Corn States Serum Company of Omaha, Nebraska, which company we shall hereinafter refer to as Corn States, although it apparently had been in use in Australia, New Zealand, and England prior thereto. Appellee began using this bacterin as soon as it came on the market.

In the years 1949, 1950, and 1951 appellee had successfully[165 Neb. 143] vaccinated his lambs with bacterin produced by Corn States, having purchased it from Dr. Frank A. Jelen, a veterinarian from Omaha, Nebraska. He apparently purchased...

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