Green v. Ralston Purina Co.

• Decision Date: 09 March 1964
• Docket Number: No. 1,No. 49693,49693,1
• Citation: Green v. Ralston Purina Co., 376 S.W.2d 119 (Mo. 1964)
• Parties: Edgar W. GREEN, Respondent, v. RALSTON PURINA COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 119

376 S.W.2d 119

Edgar W. GREEN, Respondent, v. RALSTON PURINA COMPANY, a Corporation, Appellant.

No. 49693.

Supreme Court of Missouri, Division No. 1.

March 9, 1964.

Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, Dorman L. Steelman, Salem, J. A. Fraser, St. Louis, for defendant-appellant.

Geo. F. Addison, L. Clark McNeill, Salem, sor respondent.

HOUSER, Commissioner.

Edgar W. Green, a dealer in feeds and raiser of broilers on a commercial scale, sued Ralston Purina Company for $22,239.88 loss of broilers and $100,000 loss of future earnings, investment and good will, a total of $122,239.88, based upon breach of warranty that chicken feed defendant sold plaintiff was a wholesome and fit 'complete' broiler food. Ralston Purina filed a general denial; an affirmative plea that any loss or damage suffered by plaintiff was the direct result of his own conduct, and a counterclaim for $22,767.59 plus interest, claimed due Ralston Purina on several negotiable instruments in the form of 75-day trade acceptances, executed by plaintiff (Count I); $3,680.85, plus interest, on certain 120-day trade acceptances (Count II); and $3,475.42, plus interest, on an itemized account for goods sold by defendant to plaintiff (Count III). Count III was dismissed by defendant during the trial. A trial jury returned a verdict finding the issues for plaintiff and against defendant 'on the plaintiff's petition and on defendant's counterclaim,' and assessing plaintiff's damages at $57,166.66.

The petition alleged that defendant manufactured and sold its prepared broiler raiser feed as a 'complete' broiler food, in accordance with an established trade custom and under a warranty that it was a complete and whole feed for this purpose, and that plaintiff bought and fed this feed to his broilers, and sold it to his customers, relying upon the warranty; that in violation of the custom and in breach of an express and an implied warranty the feed was not wholesome and fit for the purposes warranted, and was not a complete broiler feed, adequate without supplementation, to sustain and promote normal health and growth of broilers. Plaintiff also charged defendant with negligence in failing to mark on the label that the feed was not a complete food but was merely a supplement and that other supplemental food was required; failing to warn that it was merely an experimental formula and that no adequate research had been conducted to determine the safety, efficacy, efficiency or completeness of the feed, and in failing to include and provide sufficient nutriment for the healthy growth and development of broilers. Plaintiff alleged that beginning in October, 1957 and continuing for a period of approximately two years plaintiff fed this feed to his broilers and sold it to his customers, as a result of which his broilers became sickly, afflicted and died and others failed to develop and become marketable; and that he lost customers.

Abandoning the charges of negligence plaintiff went to the jury on breach of implied warranty.

Defendant's points IV and IX raise the question whether plaintiff introduced sufficient evidence either to make a submissible case or to support the giving of main verdict-directing Instruction No. 1. Defendant claims there was no evidence to warrant the submission that the food was not a complete food, or a wholesome food, or that it caused the broilers to sicken and die and others to stunt and fail to develop.

Plaintiff's evidence showed that in the fall of 1957 defendant came out with a new high fat broiler feed called 'Top Banana,' from which defendant's representatives said the growers could expect to produce a pound of broiler on two pounds or less of feed; that they had finally 'broken the 2-pound barrier'; that it would be 'better than anything [the growers] had ever had'; that they had overcome the problem of putting animal fat in greater amounts in feed and had developed pellets firm enough to stand up and not crumble. About October 1, 1957 plaintiff began feeding Top Banana to his various flocks in his own houses and in the houses of several contract growers. Before that date on the feed previously used he had experienced a normal 5% mortality rate and a normal feed conversion in the production of broilers. After that date, with no change in his methods of operation or management except a change to Top Banana feed, he testified that he suffered an average mortality rate of 29% and feed conversion rates varying in different flocks from 2.19 to 3.73, whereas a mortality rate of 5% and a feed conversion rate of 2.30 was to be expected. His evidence indicated that as these flocks reached the age of from three to seven weeks the chickens would develop an uneven, 'staggery,' wobbly gait and wobbly legs; get down on their legs, squat and be unable to walk, 'holler' and make peculiar noises. 'You could tell it hurt them to move.' They were restless, wilder than normal and would shake, tremble and quiver. They developed into irregular sizes, showed a lack of uniformity, and had to be culled at marketing time. The mortality rate would increase rapidly and they would die in large numbers. Post-mortem examinations disclosed red splotches on the birds; a hemorrhagic condition of the skin; a strawberry-colored, bloodshot condition of the intestines and body cavity; thin and watery blood; yellow or straw-colored liquid in the heart sac, and the heart would seem to be excessively fat. Some of the conditions were commonly known and some had never been encountered prior to the use of Top Banana.

Plaintiff's evidence showed that Top Banana was much darker than other feed, looked like bran or chops mixed together, was greasy and looked like it had cylinder oil poured over it; it had a strong rancid odor. Plaintiff did not feed Top Banana exclusively. Twelve or fifteen of the 28 flocks grown by plaintiff during the period involved were fed a mixture compounded by plaintiff's employees in plaintiff's mixer, consisting of defendant's Chowder Mix, a broiler concentrate feed, to which plaintiff added his own ground corn which plaintiff purchased from various truckers. Plaintiff's employees found and sifted from the Chowder Mix 'fat balls,' dark, black, greasy balls ranging in size from that of a match head to a half inch in diameter. Plaintiff sent some of these to defendant's laboratory for analysis, but received no report on their contents. Defendant's witnesses testified they were formed by fish solubles and that their ingredients were corn, milo, oats, dehydrated alfalfa, corn gluten feed, cottonseed meal, soybean meal, fish meal, fish solubles and meat scraps.

Plaintiff's manager testified that Dr. McCune of Missouri University made an investigation and reported that he did not know and could not tell whether it was a feed problem or a chicken problem. He said it could be a combination of both; that it might be that the chickens were not strong enough to stand the feed or that the feed was not strong enough for the chickens; that it might have too much fat. In many tests made nothing was found wrong. Orville Black, contract grower, testified he did not know whether the feed 'killed the chickens or not, but they died.'

Statistics compiled by plaintiff from original records of all flocks and all feeds used after October 1, 1957 showed the number of deaths above normal mortality, but these statistics did not differentiate between deaths caused by feed problems and deaths caused by the ordinary diseases which plaintiff admitted all flocks have from time to time, such as chronic respiratory disease, salmonella, synovitis, etc., and did not take into account deaths from crippling, injuries in moving, bad weather, and other accidental mortality. Plaintiff admitted 1232 deaths in one brood on the first four days resulting from a severe cold wave, and that deaths in the first week are not usually caused by any feed difficulty, but nevertheless in making his claim for excess mortality over normal mortality 'caused by bad feed' plaintiff sought compensation for all chickens that died over normal mortality, regardless of cause of death.

The defense was that the trouble was due to disease, poor management practices, such as failing to change the litter between flocks, and not to be feed. A veterinarian, manager of defendant's animal pathology division, found numerous diseases in chickens of plaintiff on which he conducted post-mortems: infections synovitis, chronic respiratory disease, salmonella, naval infection, epidemic tremor and hemorrhagic syndrome, none of which is caused by feed. Three out of 21 chickens examined had hydropericardium. There are five or six causes of this disease, one of which is the toxic fat factor. Toxic fat is an animal feeding grade fat which when fed to chickens may be toxic to them. Introduced into feed it has a very high potency. One of defendant's other dealers had a problem which was identified in December, 1957 as due to toxic fat. Some toxic fat did go into defendant's feed, some of which was called Top Banana. Every effort was made to identify the source of the toxic fat. Defendant worked with Merck Company on the problem. Kentucky Chemical Company was found to be the source of the fat. The most common denominator found which would 'tie down to the involved flocks' was this one source of fat. That source was discontinued; the fat impounded; not further used, destroyed and removed from the premises as soon as possible. After December, 1957 but at a time not specified, two other sources of toxic fat developed. There was no proof, however, that there was toxic fat in any of the feed shipped to plaintiff, or that any of the feed sold to plaintiff by defendant and fed to his flocks contained toxic fat.

To recover for breach of implied warranty of wholesomeness plaintiff not only had the burden of proving facts from which such a warranty would arise, but also that defendant's product was...