Graham v. John R. Watts & Son
| Decision Date | 20 March 1931 |
| Parties | Graham v. John R. Watts & Son. |
| Court | United States State Supreme Court — District of Kentucky |
5. Common Law. — Court must apply old legal principles to new facts or employ new remedy to fit altered conditions when necessary to administer justice.
6. Agriculture. — Statute requiring statements of names of seeds on market held directed at misbranding, though not specifically prohibited. (Ky. Stats., sec. 1376b-2).
7. Action. — Purchaser of incorrectly labeled seed may sue wholesaler for damages, though no samples were tested as required before prosecution for violating statute (Ky. Stats., secs. 466, 1376b-2, 1376b-10).
Ky. Stats., sec. 466, authorizes recovery of damages sustained because of violations of statute, though it imposes penalty or forfeiture therefor, and section 1376b-10 prohibits recovery of penalties and prosecutions for violations of act until samples of seed have been tested.
Appeal from Mercer Circuit Court.
C.E. RANKIN for appellant.
EWING, ROPKE & BALLANTINE, HENRY JACKSON and M.C. MINOR for appellee.
Reversing.
The appellant and plaintiff below, W.E. Graham, is a farmer residing in Mercer county, Ky., and the appellee and defendant below, John R. Watts & Son, is a corporation engaged in the business of cleaning, packing, and selling by wholesale farm seeds to be used by farmers in the growing of their crops, and its business is located in Louisville, Ky. Brown, Phillips & Noel is a partnership operating a retail merchandise business at Mayo, in Mercer county. On or about February 1, 1929, defendant sold to the merchants ten bags of seed in original packages, each of which contained one bushel of what was labeled on each sack as pure alfalfa seed and shortly thereafter they were shipped by defendant to the local merchants. Plaintiff bought one sack that was so labeled for the purpose of seeding a part of his farm in alfalfa. He prepared his ground and sowed the seed, but when they came up it was discovered that, instead of the sack he purchased containing alfalfa, it contained sweet clover seed, and he was confronted (in so far as he intended) with a contradiction of the Biblical saying that "Whatsoever a man soweth, that shall he also reap."
He then filed this action in the Mercer circuit court against defendant, and in his petition as amended he alleged the above facts, and in addition thereto he averred that the label on the sack of seed he purchased included, among other things, the name of the seed contained in the sack and which was put on the package by defendant pursuant to the requirements of sections 1376b-1 to and including section 1376b-13 of Carroll's Kentucky Statutes, 1930 Edition, which was an act of our General Assembly of March 13, 1916; that the similarity in resemblance between alfalfa and sweet clover seed was such as to require an expert to detect the difference, and that he was not a sufficient expert to do so; that he relied on the representation so made by defendant, and that he would not have purchased the sack of seed had it not been for the representation contained on the label, and that defendant knew at the time it labeled and sold the seed to the retail merchants that the final consumer was to be the farmer who purchased them, and to which class plaintiff belonged, which was but saying, in substance, that the representation was addressed to the particular farmer who might buy the seed from a retail merchant.
The petition then alleged facts showing damage to plaintiff, which he fixed in his petition at $575, and for which amount he prayed judgment. Defendant first filed a special demurrer to the petition upon the ground that, inasmuch as the summons was served on it in Jefferson county, the Mercer circuit court had no jurisdiction of its person. Or, in other words, that plaintiff had selected the wrong venue for the action, there being no joined local defendant and against whom a joint cause of action was stated. The court overruled the special demurrer to which defendant excepted, and it then filed a general demurrer to the petition which the court sustained, followed by the filing of an amended petition, and the general demurrer was interposed to it and to the petition as amended, which the court again sustained, and upon plaintiff declining to plead further his petition was dismissed, and he has prosecuted this appeal.
Defendant has not prayed or obtained a cross-appeal from the ruling of the court on its special demurrer, and it might be doubted if that question is now before us, but we have concluded to put aside such doubt and to dispose of the question on its merits. Section 72 of the Civil Code of Practice, with the exception of actions described in certain sections of the same Code, which are not pertinent to the facts of this case, prescribes that:
"An action against a corporation which has an office or place of business in this state, or a chief officer or agent residing in this state, must be brought in the county in which such office or place of business is situated or in which such officer or agent resides: or, if it be upon a contract, in the above named county, or in the county in which the contract is made or to be performed; or, if it be for a tort, in the first-named county, or the county in which the tort is committed.
In the case of Peaslee-Gaulbert Co. v. McMath's Adm'r, 148 Ky. 265, 146 S.W. 770, 771, 39 L.R.A. (N. S.) 465, Ann. Cas. 1913E, 392, the exact question growing out of parallel facts was before this court, and we held that, inasmuch as the Code provision authorized a tort action against a corporation to be brought in the county "in which the tort is committed," Christian county, which was the place of the forum in that case, had jurisdiction of the defendant therein, who was a wholesale dealer in Louisville, Ky., and who sold to the retail merchant the goods that produced the injury for which compensation was sought therein, and the objection by the defendant in that case to the jurisdiction of the Christian circuit court, based upon the same grounds as herein urged, was denied by this court in a lengthy discussion, and the conclusion was reached that the tort, if one, was committed at the place where the plaintiff's injury was inflicted, and his damage, if any, was sustained. We will not repeat our argument made in that case, but refer the reader to that opinion for that information. The court in this case, therefore, did not err in overruling the special demurrer filed by defendant, and which brings us to a consideration of the court's ruling in sustaining the general demurrer filed to the petition.
It is a fundamental principle of correct reasoning that in the solution of a problem or decision of a question it is absolutely essential that the first thing to do is to ascertain what is the proposition or question to be solved or decided. Following that rule, it should be remembered that the precise legal proposition before us in passing upon the court's ruling on the general demurrer is, that defendant is sought to be made liable in this case in tort for a false representation. Differently stated, it is sought to be made liable for an express misrepresentation which plaintiff, having the right to do so, and knowing nothing to the contrary, acted upon to his hurt and detriment. It is not a case bottomed upon fraud by concealment of facts; nor is it one bottomed upon either an express or implied warranty, nor one necessarily growing out of negligence (except in so far as a misrepresentation involves elements of negligence). Therefore, many of the numerous cases cited by counsel representing both sides that deal with situations and facts bringing those particular cases within some of the above excluded classes referred to, and to which this one does not belong, are of but litle, if any, enlightening benefit as an aid in determining the precise question before us.
Involved in the solution of this case are two questions: (1) Whether under the general law defendant under the facts of this case, as above outlined, can be made liable to plaintiff for the damages sustained because of the former's express misrepresentation of the character of article that the latter purchased under circumstances authorizing him to believe and to rely upon the truth of the representation and which was, that the involved seed was that of a certain plant that plaintiff wanted to grow on his farm, when in fact it was the seed of an entirely different plant and which he did not wish sown on his farm, and (2) whether defendant is liable to plaintiff for the damage he sustained under the provisions of section 1376b-1 to and including section 1376b-13, supra, as aided by section 466 as contained in our present statutes, the latter of which says:
"A person injured by the violation of any statute may recover from the offender such damage as he may sustain by reason of...
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...the conclusion we have reached here is not contrary to public policy. We may well repeat our expression in Graham v. John R. Watts & Son, 238 Ky. 96, 36 S.W. 2d 859, 863, "when it is necessary to apply old principles to new facts or to employ a remedy to fit altered situations and condition......
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