Doane v. Farmers Co-op. Co.

• Decision Date: 13 January 1959
• Docket Number: No. 49619,49619
• Citation: 81 A.L.R.2d 128,94 N.W.2d 115,250 Iowa 390
• Parties: , 81 A.L.R.2d 128 E. R. DOANE, Appellee, v. FARMERS COOPERATIVE COMPANY, a corporation, Appellant.
• Court: Iowa Supreme Court

Page 115

94 N.W.2d 115

250 Iowa 390, 81 A.L.R.2d 128

E. R. DOANE, Appellee, v. FARMERS COOPERATIVE COMPANY, a corporation, Appellant.

No. 49619.

Supreme Court of Iowa.

Jan. 13, 1959.

Finley & Teas, and Breese & Cornwell, Mason City, for appellant.

Mason & Stone, Mason City, for appellee.

PETERSON, Justice.

Plaintiff is a farmer and cattle feeder living near Thornton, Cerro Gordo County. In the fall of 1955 he was feeding 177 head of cattle. He had 137 head in one feed lot and 40 head in another. The average weight of the cattle was about 400 pounds. He had purchased the 137 head in October and after running them through his stock fields had placed them in the feed lot on November 15th. His normal feeding program was six pounds of shelled corn and two pounds of protein supplement per day, together with corn silage for roughage. He fed them morning and evening.

On December 5th plaintiff received a telephone call from defendant elevator advising him they had some damaged corn for cattle feed if he was interested. He went to the elevator and found they had some corn which had been removed from the corn bins by reason of excess moisture. He bought 139 bushels. On December 6th defendant delivered the corn to plaintiff's farm. They placed 122 bushels in one wagon and 17 bushels in another wagon. He fed the cattle in the feed lot, where the 137 head were located, twice on December 6th from the corn, in the smaller wagon. He again fed them from the same corn on the morning of December 7th. This exhausted all the corn in the smaller wagon.

Later in the day of December 7th he discovered that one of his cattle was dead and the rest of them were off feed. When he discovered this he quit feeding the corn. In the next two or three days 21 head of cattle died and all of the rest of the herd became sick. He did not feed any of the corn to the 40 cattle in the other feed lot and none of those cattle became sick.

On December 8th he went to defendant elevator and reported the loss of the cattle. The manager told him not to get excited; that the Board would no doubt treat him right. On the same day he called his veterinary, Dr. Janson, from Thornton. He examined the cattle and his diagnosis was that they were dying from poisoning. He suggested he take one or two of the cattle to Iowa State College at Ames, together with a quart jar of the corn, for examination. He had fed all the corn in the small wagon so he took the jar of corn from the larger load. This becomes significant in later consideration of the case. The report from Ames was not too conclusive, but with the testimony of another veterinary called by plaintiff, it did sustain Dr. Janson's diagnosis of poisoning.

Defendant's manager testified that in September when the elevator bins were being filled an insect poison known as '914 Weevil Killer' had been applied to the corn. Whenever the employees detected the presence of weevils or bran bugs as the corn was being delivered they applied the weevil killer. It was applied on the basis of approximately two and one-half gallons per thousand bushels.

Plaintiff sued defendant for $3,780 on the basis of the value of the 21 head of cattle that died, and the damage sustained by reason of sickness of the remainder of the herd.

The jury returned a verdict of $1,365 in favor of plaintiff. Defendant has appealed.

Appellant assigns three alleged errors: First. Defendant's motion to direct a verdict should have been sustained, alleging there was too much speculation as to reason for the damage. Second. In refusing to give defendant's requested instruction No. III. It requested withdrawal from the jury of all reference to '914 Weevil Killer.' Third. In refusing to give defendant's requested instruction No. IV. This pertained to plaintiff's damage on account of sick cattle.

I. The first and principal contention of appellant is that the trial court should have directed a verdict in favor of defendant. The theory of appellant is that there was no definite testimony showing that the death and sickness of the cattle were caused by the corn purchased from defendant, and the jury could only base its verdict on speculation and conjecture.

Plaintiff testified the schedule of watering and feeding the 137 head had not been changed on December 6th and 7th except as to feeding the corn from the elevator instead of corn which he himself had raised.

The weevil killer is a gaseous volatile substance which is presumed to evaporate within seventy-two hours. This was the only element entering into the circumstances of the case which was contrary to normal feeding routine.

Dr. Janson, the veterinarian, testified: 'Q. Doctor, from your examination then of the cattle, do you have an opinion as to what was the nature of the illness based both upon your examination and your observation of the cattle? A. Well as I recall the case I merely stated after getting the history of the feeding the corn I merely stated that the animal showed symptoms of poisoning and I suggested that they take one to Ames. Q. Is that your opinion from your observation that they did show symptoms of poisoning? A. They had symptoms of poisoning, yes.'

Dr. Groth, veterinary at the diagnostic laboratory at Iowa State College at Ames reported to Dr. Janson using the following language: 'The two calves owned by E. R. Doane, submitted on December 9th, showed petechial ecchynotic hemorrhages on the heart, erosions in the abomasum, hemorrhagic enteritis and passive congestion of the liver. * * * Feeding experiments conducted on a sample of the corn being fed the calves showed it to be nontoxic for laboratory animals. The lesions, history, and bacteriological findings are suggestive of a toxemia, the cause of which could not be determined.' These terms would not be understood by the jury, trial court nor this court, except for the fact that Dr. Sterling Barber, a veterinarian from Mason City was called by plaintiff in rebuttal and analyzed the statement as follows: 'I have read Exhibit 1 (the report from Ames) * * * the condition or conditions detailed in the paragraph are symptoms of poisoning. * * * If I received such a letter as Exhibit 1 in my practice of veterinary medicine I would treat the individuals for toxemia or poisoning.'

Pertaining to the circumstantial evidence as to the feeding of the corn, appellant offered some contradictory testimony. The other wagon load of corn containing 122 bushels was returned to the elevator. The elevator re-paid plaintiff the purchase price of all the corn. Thereafter, the elevator fed two steers from the returned corn without any damage to the steers. Appellant offered the testimony of four farmers who had purchased various quantities of the corn from the load returned, and who fed the corn to steers or hogs without any damage to them. In fact, they made normal gains upon the corn.

From all the circumstances involved in the case the jury could find that either prior to the delivery of the larger load of corn to plaintiff or between the time it was returned to defendant and fed by other farmers, the volatile gaseous substance which had been placed in the corn to kill weevils and other insects had evaporated and the poisoning effect had been eliminated. The jury could also find from the circumstances that a pocket of this weevil killer had become immeshed in the seventeen bushels which were fed by plaintiff, and had not had time, as yet, to evaporate and become nonpoisonous. The jury could find that since the quart bottle of corn taken to Iowa State College was taken from the larger load the bottle did not contain any of the corn which had become contaminated.

The able trial court instructed carefully as to the nature and weight of circumstantial evidence. Evidence based on circumstances must be such that the result alleged is a probability rather than a possibility. Davis v. Van Camp Packing Co., 189 Iowa 775, 176 N.W. 382, 17 A.L.R. 649; 20 Am.Jur., Evidence, § 270; 31 C.J.S. Evidence § 161.

31 C.J.S., supra, states: '* * * In some cases it has been held or stated that the facts introduced as circumstantial evidence must make highly probable, or point strongly in the direction of, the existence or nonexistence of the fact in issue. * * * If the inference sought to be drawn is more, or at least not less, probable than any other inference which might be drawn, although it has been held that facts are admissible only where they are consistent with the theory sought to be established and inconsistent with any other.'

20 Am.Jur., supra, states: '* * * a fact (circumstantial) is admissible as a basis of an inference only where the desired inference is a probable or natural explanation of the fact and a more probable and natural one than other explanations, if any.'

In Davis v. Van Camp Packing Company, supra, this court stated [189 Iowa 775, 176 N.W. 391]: 'In other words, the circumstances were such that it would be for the jury to determine which was the more reasonable probability.'

In the same case, quoting from Dail v. Taylor, 151 N.C. 284, 66 S.E. 135, 28 L.R.A.,N.S., 949, this court said: 'The court held that negligence could be proved circumstantially, and that, if the facts proved established the more reasonable probability of defendant's negligence, the case could not be withdrawn from the jury, though there might be a possibility of accident arising under the evidence.'

We hold there were sufficient circumstances shown by plaintiff that the jury was entitled to pass on the evidence of the two parties, pro and con, and decide the question of fact involved as to the cause of sickness and death of plaintiff's cattle. Davis v. Van Camp Packing Co., supra; Johnson v. Kanavos, 296 Mass. 373, 6 N.E.2d 434; Peckham v. Eastern States Farmers' Exchange, D.C., 134 F.Supp. 950; Brown v. Globe Laboratories, Inc., 165 Neb. 138, 84 N.W.2d 151; Haberer v. Moorman Mfg. Co., 341 Ill.App. 521, 94 N.E.2d 611; Klassen v. Central...