Dunn v. Ralston Purina Co.

• Citation: 38 Tenn.App. 229,272 S.W.2d 479
• Parties: Leonard DUNN v. RALSTON PURINA COMPANY et al.
• Decision Date: 30 July 1954
• Court: Court of Appeals of Tennessee

Page 479

272 S.W.2d 479

38 Tenn.App. 229

Leonard DUNN v. RALSTON PURINA COMPANY et al.

Court of Appeals of Tennessee, Middle Section.

July 30, 1954 Certiorari Denied by Supreme Court Nov. 16, 1954.

E. C. Templeton and R. W. Stevens, Fayetteville, for plaintiff in error.

Holman, Holman & Matthews and Simms & Simms, Fayetteville, for defendant in error.

FELTS, Judge.

Plaintiff sued Ralston Purina Company and its local dealer, Walter J. Tanner, for $3,000 damages for the loss of his horse which he charged was caused by their negligence in that they manufactured a livestock feed called Omolene, represented it to be fit and good for the horse, induced him to buy and feed it to the horse, when in fact it was unfit, spoiled, and so injurious that when fed to the horse it killed him.

There was a verdict and judgment for plaintiff against the Company for $1,500, and a verdict and judgment in favor of Tanner. Upon the Company's motion for a new trial the Trial Judge, concluding he had erred in not granting the Company's motion for a directed verdict, entered a judgment for it as on a directed verdict.

Plaintiff moved for a new trial and to reinstate the verdict and judgment for him. His motion was overruled, he appealed in error, and insists that the evidence was adequate to make a case for the jury and to support the verdict for him, and that the Trial Judge erred in directing a verdict for the Company.

It appears the Trial Judge directed a verdict for defendant Company upon these grounds: (1) that there was no evidence of any negligence on its part; (2) that there was no evidence of any causal connection between any act of the Company and the death of the horse; and (3) plaintiff was guilty of contributory negligence as a matter of law. And learned counsel have debated these questions here.

In considering these issues, and in testing whether a verdict should have been directed for defendant, we must construe the evidence most favorably to plaintiff, take as true that which supports his rights, discard all countervailing evidence, and indulge all reasonable inferences in his favor. Smith v. Sloan, 189 Tenn. 368, 376-377, 225 S.W.2d 539, 227 S.W.2d 2.

Evidence for plaintiff was that he was a farmer raising Tennessee Walking Horses, and had a highbred young horse, Little Go Boy, which he was preparing for the coming National Walking Horse Celebration. The Company sent its field man and its salesman to plaintiff's farm and they represented to him that Omolene was the best possible feed for this horse. Relying on their representations, he bought from its local dealer, Tanner, a 100 lb. bag of Omolene which the Company had manufactured and shipped to Tanner.

He bought this bag August 6, 1951, and on the next day began to feed the Omolene to his horse. He fed the horse at about 5:00 p. m., August 8, and about two hours later he found the horse was violently ill, down, rolling in the stable. He called Dr. Bullington, a veterinarian, who treated the horse for three or four hours, but to no avail. The horse died about midnight. Dr. Bullington and another veterinarian called as witnesses for plaintiff testified that in their opinion the horse died of acute indigestion or colic caused by the bad condition of the Omolene.

Plaintiff reported the matter and Tanner and a salesman of the Company took samples of this bag of Omolene and of another bag of the same lot in Tanner's store. Both samples were found bad. The Omolene had gone through a heat and had spoiled. While the formula was not disclosed, it was shown that the Omolene contained No. 2 yellow corn, oats, blackstrap molasses, and other protein materials. The word 'heat', as here used, is defined as 'high temperature produced by fermentation or putrefaction'--Oxford Dictionary.

While there was sharp dispute in the evidence as to whether this Omolene was toxic or could kill a horse, it was undisputed that the Omolene had gone through a heat, spoiled, and was unfit for horses; and evidence for plaintiff was that it was not only unwholesome but was 'apt to give a horse colic' and likely did cause the death of this horse.

Evidence for defendants was that this bag of Omolene was part of a batch of Omolene manufactured by the Company at its Nashville Plant on August 1, and there put into bags which were closed and securely sewn, and a number of them were shipped to the local dealer Tanner on August 2. They were not opened or altered by anyone from the time they left the Company until this bag reached plaintiff.

These facts, we think, were sufficient to put a duty of care upon the Company toward plaintiff. It is true there was no such duty on a manufacturer, in the absence of privity, under the so-called general rule of non-liability which was applied in Burkett v. Studebaker Bros. Mfg. Co., 126 Tenn. 467, 150 S.W. 421, and like cases.

But it can hardly be said that such a general rule any longer exists. It has been discarded in England (Grant v. Australian Knitting Mills, [1936] A.C. 85, 105 A.L.R. 1483), and in the United States the exceptions have swallowed up the rule. Carter v. Yardley Co., 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559, 568; Wagoner v. Ford Motor Co., Tenn.Ct. of App., July 28, 1945, unreported, noted in 19 Tenn.L.Rev. 800, reversed on another ground 183 Tenn. 392, 192 S.W.2d 840, 164 A.L.R. 364; Aurex Corp. v. Blair, Tenn.Ct. of App., Jan. 7, 1947, unreported, noted in 20 Tenn.L.Rev. 193; Wade, Book Review, 22 Tenn.L.Rev. 444, 447.

The rule now, in our opinion, is that where a product is such that, if negligently made, it may reasonably be expected to injure the person or property of an ultimate user of it, then, irrespective of contract, the manufacturer is under a duty to such user to make it carefully. Grant v. Australian Knitting Mills, supra, 105 A.L.R. 1494; Carter v. Yardley Co., supra, 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 563; Prosser on Torts, 673-678; Noel, Products Liability of a Manufacturer in Tennessee, 22 Tenn.L.Rev. 985, 988-89.

This rule extends to a manufacturer of animal feeds, and such a manufacturer owes a duty to an ultimate user to use due care in making or supplying such feeds. Quaker Oats Co. v. Davis, 33 Tenn.App. 373, 232 S.W.2d 282; Prosser on Torts, 680; Ellis v. Lindmark, 177 Minn. 390, 225 N.W. 395; Seaton Ranch Co. v. Montana Vegetable Oil & Feed Co., 1953, 126 Mont. 415, 252 P.2d 1040; Burns v. Ralston Purina Co., 210 Ga. 82, 77 S.E.2d 739.

We think on the evidence the jury could find the Company breached its duty and was negligent. It made and packed the Omolene in closed bags, and shipped some of them to its dealer Tanner, who kept them unopened and unaltered, and sold one to plaintiff. This lot of Omolene was spoiled and dangerous to horses. These facts made a prima facie case of negligence against the Company. Quaker Oats Co. v. Davis, supra; Grant v. Australian Knitting Mills, supra; cf. Coca-Cola Bottling Works v. Sullivan, 178 Tenn. 405, 158 S.W.2d 721, 171 A.L.R. 1200.

It is urged for the Company, however, that it made this batch of Omolene one afternoon and shipped part of it to Tanner next morning; that by its tests this Omolene was in good condition...