Crouch v. Nat'l Live Stock Remedy Co.

• Citation: 205 Iowa 51,217 N.W. 557
• Decision Date: 17 January 1928
• Docket Number: No. 38253.,38253.
• Parties: CROUCH v. NATIONAL LIVE STOCK REMEDY CO. ET AL.
• Court: United States State Supreme Court of Iowa

205 Iowa 51

217 N.W. 557

CROUCH

v.NATIONAL LIVE STOCK REMEDY CO. ET AL.

No. 38253.

Supreme Court of Iowa.

Jan. 17, 1928.

Appeal from District Court, Hamilton County; Sherwood A. Clock, Judge.

Action for damages for injury claimed to be caused to hogs by feeding a produce purchased from defendants. Trial to a jury. Verdict and judgment for plaintiff. The defendants appeal. Reversed.Martin & Alexander, of Webster City, for appellants.

F. J. Lund and Geo. D. Thompson, Jr., both of Webster City, for appellee.

FAVILLE, J.

[1] The appellant H. C. Moorman is engaged in the business of manufacturing live stock remedies, under the name and style of “National Live Stock Remedy Company (not Inc.).” The principal place of business is in Chicago. Said company sold its products directly to the consumer, through agents, and one L. A. (Lute) Meyers, of Webster City, Iowa, was such a salesman.

Service of the original notice in this cause was had upon Meyers, he being described in the return of service as “agent of said corporation.” The appellants entered a special appearance and by motion attacked the jurisdiction of the court, contending that the person upon whom the service of original notice was had was not such an agent as may be served with an original notice in order to bring the alleged principal into court. It was further alleged that the appellants never had an office or agency at Webster City, and that Meyers had no office at said place; and appellants asked that the service be quashed. The court overruled the motion. Thereafter the appellants filed answer and trial was had. It is contended that there was error as to this matter. The case is ruled at this point by Scott v. Price Bros. Co. et al., 217 N. W. 75, in which opinion was filed December 17, 1927. The error, if any, was waived.

II. On February 3, 1922, appellee purchased 1,000 pounds of “National Hog Powder.” The purchase was made through Meyers. Before the purchase of the powder, representations as to the same and how to use it were made orally and also by literature. Some literature and directions appeared in each sack containing the powder, upon its delivery. The powder was represented to prevent worms, to keep the blood in good condition, to aid in digestion, and to keep the liver and bowels in a healthy condition. Special instructions for feeding “National Hog Remedy” were furnished in a printed pamphlet.

The appellee claims that he used the remedy according to directions, and that thereafter quite a number of his hogs died, as he claims, as a result of the feeding of the powder.

It is shown by the record that this powder has been manufactured by appellants since 1914, from the same formula, and the ingredients of the powder, according to formula, are:

“Wormseed, 1%; May apple root, 1%; poke root, 1%; charcoal, 8%; sulphate of iron, 2%; sulphur, 3%; bone phosphate, 12%; sulphate of soda, 72%.”

The appellee testified that he took samples from each of two sacks of powder which he had purchased, to a chemist in Des Moines for analysis, and the chemist testified that the analysis of one of said samples showed:

“Sodium sulphate or glauber salts, 52.68%; magnesium sulphate or epsom salts, 16.3%; sulphur, 3%; bone phosphate, 12%; sulphate 4.4%. The balance consisted of charcoal, wormseed, tobacco, etc.”

He further testified that the other sample contained:

“Magnesium sulphate or epsom salts, 14.3%; sodium sulphate or glauber salts, 49.08%; sulphate of iron, 16.7%; sulphur, 5%. The balance is just charcoal, wormseed, tobacco, etc.”

The testimony tends to show that the appellee had one bunch of hogs which he kept in a separate pen in close proximity to the others, and to which lot of hogs none of the remedy was fed by force feeding, and he claims that none of said hogs became sick.

A veterinarian was called by the appellee in January, when the hogs were sick, and he testified that he found the sick hogs suffering from profuse diarrhea and some of them vomiting, and two of them dead; that he made a post mortem examination of the two dead hogs, and found a dropsical condition in the lining of the stomach, a severe inflammation through the bowels, and congested liver and kidneys; that this condition is called salt poisoning; that he made an investigation of the herd as to other ailments and there was none that he could discover. He, and three other veterinarians, gave testimony to the effect that the use of the powder by the force feeding, as directed, would be harmful, and that the powder contained too much salts to be administered in the manner recommended and directed, and that salt poisoning of an animal is a result of an overdose, or doses, of a compound containing the ingredients according to the formula, or according to the analysis made by the chemist.

Appellee testified that there was no epidemic among hogs in that vicinity at the time in question. Appellee introduced testimony of other farmers who had purchased some of the same remedy, for the purpose of showing the effect upon their hogs. Appellants introduced testimony of farmers who had purchased the same remedy, showing no evil effects upon their hogs. The testimony of appellee and some of his witnesses is to the effect that the compound was not similar in color in different sacks.

A veterinarian, on a hypothetical question asking, “What would you say was the cause of the death and general condition of these hogs?” answered: “I think that condition would be termed as salt poisoning.”

Another veterinarian was asked, “Would you be able to give a reasonably accurate opinion as to what caused the death and the injury to the hogs that I have described?” and he answered: “Yes, sir.” He was also asked, “What, in your judgment, would you say caused the death and the injury to the animals I have described?” and he answered: “Well, the first one is due to the acute action--that is, the initial action--and then because they probably lived from three to six months probably succumbed to hardening of the liver, which is a direct result of feeding, or overfeeding of salts.” He also testified that he made a post mortem examination of some of the hogs of the witnesses Larson and Lee, and found practically the same conditions that he found in the hogs of the appellee.

A veterinarian testified as an expert in behalf of the appellants. His evidence is in direct conflict with that of appellee's experts.

The stock food was purchased by means of a written order. Concurrently with the signing of said order the appellee executed his promissory note for the purchase price. The appellee's petition consists of two counts, the first being based upon false representations or implied warranty, and the second one incorporates the first count as a part of it, and in addition thereto alleges negligence on the part of the appellant company. The appellants answered by general denial and filed a counterclaim for the amount due on the note.

[2] At the close of appellee's evidence the appellants moved for a directed verdict, and renewed the same at the close of all the evidence. Appellants predicate error in overruling said motion. They argue that there is no causal connection shown between the giving of the remedy and the injury and death of the hogs. They rely upon Hollingsworth v. Midwest Serum Co., 183 Iowa, 280, 311, 162 N. W. 620, 629. In that case the reversal of the lower court was based upon the conclusion that there was no sufficient showing of negligence on the part of the defendant. We said:

“Briefly stated, the finding of negligence is not sustained by the evidence. We have no occasion, therefore, to consider the question of proximate cause.”

In the instant case we are disposed to hold that the evidence was sufficient to carry the case to the jury on the question of proximate cause. See Kennedy v. Plank, 120 Wis. 197, 97 N. W. 895;Hertzler v. Manshum, 228 Mich. 416, 200 N. W. 155;Hendershot v. Western Union Tel. Co., 106 Iowa, 529, 76 N. W. 828, 68 Am. St. Rep. 313;Davis v. Van Camp Packing Co., 189 Iowa, 775, 176 N. W. 382, 17 A. L. R. 649;Swift & Co. v. Redhead, 147 Iowa, 94, 122 N. W. 140.

III.

[3] The appellants contend that the plaintiff is estopped from recovering by reason of his having given his promissory note for the purchase price of the powder and because of his subsequent conduct with reference thereto. The giving of the note at the time of the purchase of the remedy would not constitute an estoppel to recovery for loss occasioned by its subsequent use. This is obvious. Moreover, no estoppel is pleaded.

IV.

[4][5] After verdict the appellants filed motion in arrest of judgment and for judgment notwithstanding the verdict, based upon the grounds that there is no allegation in the petition that the damages suffered were unpaid and that there is no allegation of freedom from contributory negligence on the part of appellee. The petition does allege freedom from contributory negligence, and payment is an affirmative defense to be raised by the defendant. Howerton v. Augustine, 130 Iowa, 389, 106 N. W. 941. The motion was properly overruled as to these grounds.

V.

[6] The court in one of its instructions told the jury that, if it had been proven by a preponderance of the evidence that the “National Hog Powder” for which the note was given was without value and was worthless for the purpose sold, then and in that case the appellants could not recover upon their counterclaim. Manifestly this is correct. See Swift & Co. v. Redhead, supra.

VI. The appellants make general complaint as to the instructions. The appellee, in the second count of his petition based on negligence, incorporated therein the first count of his petition based upon fraudulent representations or implied warranty; and the court in the instructions told the jury, in substance, that before the appellee could recover it must be established by a preponderance of the evidence: (1) That the appellant company, through its agent Meyers...