Elanco Products Co. v. Akin-Tunnell, AKIN-TUNNELL

• Decision Date: 13 December 1971
• Docket Number: AKIN-TUNNELL,No. 8185,8185
• Citation: 10 UCCRep.Serv. 30,474 S.W.2d 789
• Parties: 10 UCC Rep.Serv. 30 ELANCO PRODUCTS COMPANY, a Division of Eli Lilly & Co., Appellant, v., a Partnership, Appellee.
• Court: Texas Court of Appeals

Page 789

474 S.W.2d 789

10 UCC Rep.Serv. 30

ELANCO PRODUCTS COMPANY, a Division of Eli Lilly & Co. Appellant, v. AKIN-TUNNELL, a Partnership, Appellee.

No. 8185.

Court of Civil Appeals of Texas Amarillo.

Dec. 13, 1971.

Rehearing Denied Jan. 10, 1972.

Evans, Pharr, Trout & Jones, John A. Flygare, Lubbock, for appellant.

Day, Owen & Lyle, Gene V. Owen, LaFont, Tudor, Tunnell, Formby & LaFont, Bill LaFont, Plainview, for appellees.

ELLIS, Chief Justice.

This is an appeal from a trial court judgment entered on a jury verdict awarding plaintiff-appellee breach of warranty damages against defendant-appellant Elanco Products Company, a Division of Eli Lilly & Company.

Reversed and remanded.

Appellee, Akin-Tunnell, a partnership, brought this action based on the alleged failure of the product Treflan, a herbicide, to control weeds in appellee's cotton fields in Hale County after its aerial application in the early part of 1969. Joined as defendants were Elanco Products Company, the manufacturer of Treflan; Joe Ramsey, the aerial spray applicator who applied the Treflan to appellee's crop; and Farmers Gin of Edmonson, Inc., the retail seller of Treflan. Appellee sued Elanco and Farmers Gin for breach of implied warranty based on strict liability in tort and express warranties. The action against Ramsey was in tort based on negligent application of the product.

Insofar as they are pertinent to the points of error raised by appellant in this court, the undisputed facts may be summarized as follows:

Elanco had caused certain billboard, television and magazine advertising to be done relative to the effectiveness of Treflan, and the advertising did not detail the methods of application of the product. In January, 1969, Elanco delivered a quantity of Treflan to Farmers Gin in Edmonson, Texas, which in turn sold fifteen 5-gallon cans and four quarts of the Treflan to Akin, a partner in the plaintiff partnership, at a cost of $1,902.20. The label on the containers provided certain instructions for the application of the product to be used in a mixture with 10--40 gallons of water per acre, but did not refer to aerial application. Likewise, among the exhibits in evidence, introduced as Ramsey #6, was a leaflet, purportedly intended for attachment to Treflan containers, entitled 'Directions for use of Treflan,' which specified only the amount of Treflan to be used per acre, not mentioning any water amounts, nor referring to aerial application. Also, a green colored card containing a statement to the effect that Elanco guarantees that Treflan will control weeds and grasses when used according to label instructions was provided the retailer for delivery to the purchaser . Ramsey, the aerial applicator, had read and understood Elanco's brochure on aerial application of Treflan which stated that for best results the product should be mixed with water so that the mixture would be applied at a minimum rate of five gallons of total liquid per acre and when the wind velocity did not exceed 5 miles per hour. Also, Ramsey gave testimony to the effect that the only thing that the Elanco representatives or dealers had specified to him regarding application was 'be sure to put a pint and a half of Treflan per acre.' Ramsey picked up the Treflan at Farmers Gin on instructions from Akin, but the green card was not delivered to him. ¹ The Treflan was applied by airplane to approximately four hundred acres of appellee's land in late January or early February. (Ramsey hired another man to pilot the aircraft while Ramsey supervised and regulated the herbicide application. The expenses of the aerial application were paid by plaintiff- appellee). Ramsey sprayed 1 1/2 pints of Treflan and 14 1/2 pints of water per acre, for a total volume of two gallons of liquid per acre on appellee's land in winds conceded to be in excess of 5 miles per hour. After application, the Treflan was incorporated into the soil by laborers hired by Akin . Then in late March or early April, Akin watered the land and planted cotton on or about the first days of May. He used a rod weeder ahead of his planter to rid the fields of what few weeds had already grown during the months between incorporation and planting time. Soon after the planting and when the cotton was in its early stages of growth, Akin noticed weeds in the cotton, and went to see Hodges, the retailer at Farmers Gin, who in turn notified Elanco representatives of the trouble. Hodges inspected the fields with Akin, and a week or so later, Akin, Hodges, and Elanco representative Larry Schoenrock met at Farmers Gin and then inspected the fields. Meanwhile, Akin had purchased a rolling cultivator to try to control the weeds, and had put laborers to work chopping the weeds in the cotton. Three weeks after Elanco representative Schoenrock visited the plaintiff-appellee's land, Elanco representative Mac Pritchett visited the cotton fields and spoke to Akin about the problem, suggesting that the Treflan had been applied improperly. Akin continued to have the fields chopped and hoed and before the cotton was harvested, every acre had been hoed three times.

The court granted an instructed verdict for defendant Farmers Gin, but denied similar motions by defendants Elanco and Ramsey. The trial was to a jury, who, after the presentation of evidence, answered the special issues submitted and made the following findings:

(1A) Defendant Ramsey did not apply the Treflan to the plaintiff's field at times so windy as to cause an improper application; (2A) Ramsey did not fail to use a sufficient volume of water to properly apply the Treflan; (3A) Ramsey caused to be dispensed from an aircraft an economic poison contrary to the directions on the label, but (3B) such dispensation by Ramsey was not negligence; (4A) the Treflan sold to appellee on the occasion in question was reasonably fit for the purposes for which it was intended to be used if used in accordance with the manufacturer's instructions; (5A) defendant Elanco represented that Treflan would control weeds in cotton; (5B) appellee relied on such representations; (5C) the Treflan failed to control the weeds in appellee's cotton; (5D) the failure to so control the weeds was not caused by failure to apply the Treflan in accordance with the manufacturer's instructions; (6) the reasonable cash market value of the Treflan in question and around Hale County when sold to the appellee was $1,902.20; and (7) $4,915.00 would fairly and reaonable compensate the plaintiff for its increased cost of farming the cotton due to the failure of the Treflan to control the weeds.

On the basis of these findings, the trial court rendered judgment in favor of plaintiff-appellee against defendant-appellant Elanco for damages in the sum of $6,817.20 plus interest. The court further rendered judgment that plaintiff take nothing as to defendant Ramsey, and that Elanco take nothing by virtue of its cross action against Ramsey.

Appellant Elanco has perfected appeal to this court.

In its first of thirteen points of error, appellant assigns as error the trial court's refusal to grant judgment for appellant on the jury finding that Treflan was fit for its intended use when used in accordance with the manufacturer's instructions. Appellee concedes that this finding is fatal to any recovery under the theory of breach of implied warranty based on strict liability in tort. Appellee asserts that nonetheless this finding does not necessarily defeat its claim for recovery based on breach of 'express' warranties, under § 2.313 of the Texas Uniform Commercial Code, ² alleged to have been made by appellant Elanco with regard to its product, Treflan. In support of its contention, appellant cites the case of Ralston Purina Company v. Wiseman, 467 S.W.2d 669 (Tex.Civ.App.--El Paso 1971, no writ). A close examination of the basis for the decision in that opinion discloses, however, the product there involved was never owned or sold by the defendant Ralston Purina Company, and that the plaintiff was relegated to an action for strict liability in tort. This is further indicated by the fact that all of the cases cited and authorities quoted therein dealt with strict liability in tort.

Representations in regard to goods that do not relate to their quality may come within the definition of express warranty under the Uniform Commercial Code, 8 Williston on Contracts, § 970 at 489 (3d ed. 1964). If in this case appellant Elanco could be shown to have warranted that Treflan would control weeds so long as it was applied in accordance with very broad and general instructions, as alleged by appellee, then its failure to do so would constitute a breach of the express warranty notwithstanding the fitness of the product for its intended use when used in accordance with some other instructions distributed by the manufacturer, which instructions were not sufficiently shown to have become a 'basis of the bargain,' as referred to in § 2.313 of the Code. Instructions which are not made a 'basis of the bargain' are not relevant in determining a breach of the express warranty under § 2.313. For the above reasons, appellant's first point of error is overruled.

In appellant's second and sixth points, it is contended that the trial court erred in refusing to render judgment for appellant because appellee failed to secure a finding that the Treflan was defective or that a defect in the product caused the damage to the appellee. For the reasons assigned in overruling the first point, we overrule these points. A cause of action grounded on breach of an express warranty under § 2.313 of the Code does not fail because the plaintiff fails to prove a 'defect' in the product--a breach of an Express warranty is the failure of a product to comply with a definite warranty established by competent evidence.

In its third, fourth and fifth points of error, appellant complains of the trial court's failure to render judgment for a...