Grismore v. Consolidated Products Co.

Decision Date29 September 1942
Docket Number45940.
Citation5 N.W.2d 646,232 Iowa 328
CourtIowa Supreme Court

[Copyrighted Material Omitted]

H. F. Garrett, of Corydon, Lindley, Jones, Grant & Sebat, of Danville, Ill., and Brammer, Brody, Charlton & Parker, of Des Moines, for appellant.

Albert V. Hass, of Chariton, for appellee.

BLISS Justice.

The plaintiff, for twelve years or more, had been engaged in the business of hatching, raising, and marketing turkeys, with his place of business, at the time the matters complained of occurred, near Corydon, Iowa. The defendant, a corporation with its place of business at Danville, Illinois, prepares and sells a turkey food, known as Semi-Solid Buttermilk which is ordinary buttermilk with the water content reduced [5 N.W.2d 649] to 73 per cent of the product, as sold. It also sold a product, known as "E" Emulsion, used for feeding turkeys, very similar in composition to the first-mentioned product. M. F. Stewart, of Corydon, a man experienced in the raising and feeding of turkeys, was a regular salesman of the defendant, who sold to plaintiff 19 barrels of the buttermilk and one barrel of the emulsion.

Plaintiff alleged in his petition that: in the latter part of July, 1939, the said Stewart, as the duly authorized agent of the defendant, solicited the plaintiff to purchase these products, and said the defendant had had a long and varied experience in the manufacture of its buttermilk products and knew the best methods of feeding them to turkeys to obtain the most beneficial results; Stewart stated to plaintiff the proper method of feeding it, which was not the method as then believed by the plaintiff; Stewart then stated to plaintiff that if he would permit him to remain with him for a day and show him the proper method of feeding the buttermilk, the turkeys would be greatly benefited and in no way harmed; plaintiff relied upon these statements and representations of defendant's agent, and the claimed knowledge of the defendant as to the qualities of its product and permitted Stewart to stay with him a day or so and feed the turkeys the buttermilk as recommended by Stewart and as directed by the defendant; as a result thereof, plaintiff lost many turkeys and those that did not die were thrown off feed, lost weight, and were retarded in their growth, all to plaintiff's loss in the approximate sum of $2,900; and "the negligent and wrongful statements and misrepresentations on the part of the defendant, through its agent, M. F. Stewart, upon which the plaintiff relied, and the resultant feeding of the Semi-solid Buttermilk to plaintiff's turkeys by reason of the plaintiff relying upon the said negligent and wrongful statements and misrepresentations, were the proximate cause of the plaintiff's injury and damages."

Defendant filed an answer, in count one of which it admitted the respective businesses of the parties, and its manufacture and sale to plaintiff of the Semi-Solid Buttermilk, as alleged, and denied all other allegations. Count two of defendant's pleading was a counterclaim based upon the sale of the product to plaintiff and the nonpayment of the purchase price. Defendant prayed for judgment on its counterclaim, and the dismissal of plaintiff's petition. No other pleadings were filed. The court instructed the jury that the basis of the claim of plaintiff was not because of any thing, in itself, impure or injurious, in the product, but was the negligence of the defendant, through its agent, in directing the feeding of the turkeys the buttermilk in the amount and at the time and in the manner stated, and in so feeding them, and that if the doing of these things was within the scope of the agent's authority, and was the proximate cause of the injury and damages, and the jury should so find, it should return a verdict for plaintiff in the amount of the damages suffered. The jury returned a verdict for the plaintiff of $2,000, after crediting upon plaintiff's damages the amount owing on defendant's counterclaim. The defendant took no exceptions to any of the instructions. Its motions to direct a verdict at the close of plaintiff's evidence and at the close of all the evidence, and its motions for new trial, and for judgment notwithstanding the verdict, were all overruled.

Appellant assigns as error that the record fails to establish that plaintiff's loss was due to the feeding of the buttermilk; that the record failed to establish that anything Stewart said or did with reference to feeding the turkeys was within the scope of his authority; and, that the court erred in the admission of certain expert opinions, and so-called expert opinion testimony.

I. With respect to the first assignment, it is our conclusion that there was substantial evidence to sustain the jury's verdict that plaintiff's loss was proximately caused by the directing and the feeding of the buttermilk by Stewart. In July, 1939, the plaintiff had approximately 14,000 young turkeys, hatched in March and in the months following. Their appearance and the manner in which they ate gave indication of good health and freedom from disease. Stewart saw the flock the day before he gave them their first feeding of defendant's buttermilk, and he testified he saw nothing in their appearance indicating disease. The death loss in the flock had been very low. When the shipment of buttermilk arrived, the plaintiff waited two days until Stewart returned to superintend its mixing and feeding. Plaintiff had fed buttermilk some years before but used ten parts of water to one part of buttermilk. Stewart told him this was entirely too thin, and that the Minnesota turkey raisers fed it differently with good results, and he would show him how they fed it. He said that they poured it over the grain mash, and his company recommended that method of feeding. Plaintiff had fed his turkeys no buttermilk, and was giving them a dry mash consisting of bran, shorts, ground oats, ground corn, meat scraps, soy bean meal, alfalfa meal, bone meal, calcium carbonate and salt. Stewart came out Wednesday morning, August 2nd, but he thought the feed troughs were too full of mash and postponed using the buttermilk. He came the next day and put on some old clothes and prepared the buttermilk feed--three parts of buttermilk to one part of water. He had the plaintiff's men pour this quite thick mixture over the mash in the feed boxes. He used three quarts of the mixture to 150 pounds of mash. Friday morning, August 4th, Stewart again came to plaintiff's and went with the men to again mix and spread the buttermilk. The turkeys had not eaten all of the mash put in the day before, but more mash was put in and the buttermilk was spread as before. Stewart came out again Saturday to say goodby to plaintiff, but didn't see him and had nothing to do with the feeding that day. The plaintiff saw some of the turkeys late Friday evening and thought they looked droopy. The next day they appeared very definitely sick. They were very weak. Their wings drooped. They did not eat. The droppings under the roosts looked as though whitewash had been splashed all over. Plaintiff telephoned for Stewart, and Mrs. Stewart got in touch with her husband at Mt. Pleasant on Sunday. Plaintiff had six pens of turkeys. In two pens he had 3,000 turkeys in each. In one pen he had 5,500, in another 900, and in two other pens he had 700 and 600 turkeys. No buttermilk had been fed to the 1,300 turkeys in the two last-mentioned pens. The mortality in these two pens was just the normal death loss in a flock of turkeys. The pen of 5,500 turkeys had received the largest percentage of buttermilk, and their death loss was the greatest. The two pens of 3,000 each had been fed somewhat less than the pen of 5,500 and their death loss was less than the latter pen. The pen of 900 had received but one feeding of buttermilk and the rate of mortality was the least of any of the pens which had been fed buttermilk. Prior to the feeding of the buttermilk, the death loss of the approximately 14,000 turkeys had been from three to eight turkeys a day--a normal loss. The death loss of the entire flock was as follows: July 31st, three, August 1st, five, August 2d, none, August 3d, four, August 4th, seven, August 5th, none, August 6th, twenty, August 7th, twenty-four, August 8th, eighty-seven, and on August 9th, one hundred. From then on the death loss mounted. The total deaths in three or four weeks were 1,200 turkeys. The entire flock which had been fed the buttermilk was afflicted with this white diarrhea. Numerically they were 100 per cent sick. The 1,300 turkeys that had received no buttermilk had but a normal mortality. They had no diarrhea. They continued as normal, healthy turkeys, and, with the exception of the buttermilk, they were fed the same mash as the remainder of the turkeys. They experienced the same weather conditions as the other turkeys. One night there was a heavy rain, and the sick turkeys were so weak they could not get into the shelters or on the roosts. Because of their condition about 2,000 of them were hauled into the brooders to dry them out.

No buttermilk was fed after Saturday, August 5th. In about two weeks, the turkeys that survived began to eat better and slowly improved, but many of them were stunted, all of them required a month or more of additional feeding, and averaged about a pound and a half less in weight when marketed, than they would have normally. Some of the turkeys, both live and dead were sent to Iowa State College for examination and posting. All of them had catarrhal enteritis, which is a severe inflammatory condition of the entire alimentary tract. Some had other poultry diseases. Later others were posted with like results. But the undisputed record is that...

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