Intermountain Farmers Ass'n v. Fitzgerald

• Decision Date: 24 January 1978
• Docket Number: No. 14723,14723
• Parties: INTERMOUNTAIN FARMERS ASSOCIATION, a Utah Corporation, Plaintiff and Appellant, v. Jim FITZGERALD, Defendant and Respondent.
• Court: Utah Supreme Court

Page 1162

574 P.2d 1162

INTERMOUNTAIN FARMERS ASSOCIATION, a Utah Corporation, Plaintiff and Appellant, v. Jim FITZGERALD, Defendant and Respondent.

No. 14723.

Supreme Court of Utah.

Jan. 24, 1978.

J. Thomas Greene, DeLyle H. Condie, Dorothy C. Pleshe, of Callister, Greene & Nebeker, Salt Lake City, for plaintiff and appellant.

Tom R. Blonquist, Salt Lake City, for defendant and respondent.

PALMER, District Judge:

This case was brought by the plaintiff to recover the amount due on open account for the sale of feed to the defendant in the sum of $41,625.00 with interest and reasonable attorney's fees. This is an appeal from a money judgment in favor of the defendant and respondent, (defendant herein) on his counterclaim.

The defendant originally answered the plaintiff's complaint with a general denial. Some months later the defendant was permitted by the trial court to file an amended answer and counterclaim for alleged injuries and death to defendant's dairy herd allegedly caused by toxic levels of urea, and alleged inconsistencies and deficiencies of protein in the feed sold by the plaintiff to the defendant.

There are five allegations made on the appeal as follows:

One, the plaintiff alleges that the court did not grant attorney's fees as provided in the contractual arrangement between the plaintiff and the defendant. The defendant has agreed that attorney's fees should have been allowed, thus there is no dispute on appeal on this item.

Two, the plaintiff alleges the instructions to the jury relating solely to the issue of punitive damages was prejudicial error.

Three, the instruction to the jury to the effect of a violation of a statute as it affects negligence was prejudicial error.

Four, plaintiff's Motion for a Directed Verdict should be granted and was error on the part of the court not to have granted as requested by the plaintiff.

Five, prejudicial error was committed in the admission of evidence.

It is not necessary for this Court to treat the first point of appeal by the plaintiff since the defendant has agreed that an award of a reasonable attorney's fee should have been made.

The next point of contention is that evidence received was on its face objectionable, but was allowed by the trial court for the purposes of relating, "solely to the issue of alleged punitive damage." It is the opinion of the Court that by allowing such evidence in without clarification was prejudicial error and the case should be reversed on this matter alone.

The Court's instruction number twenty (20) gave the following instruction:

You are instructed that certain exhibits hereinafter enumerated have been offered and admitted into evidence by the court as bearing upon the question of notice to the plaintiff of a deficiency in its feed. You are instructed that said exhibits should not be considered for any other purpose or as bearing upon any other issue and do not constitute proof of any other claim made by the counterclaimant in this case. (Emphasis added.)

However, after giving the instruction, the trial court failed to advise the jury as to the numbers of the exhibits that were so restricted. Thus, the jury reviewed all the exhibits without restriction, when in fact some of the exhibits should have been restricted to the issue of punitive damages. The admonition of the court as provided in instruction number twenty was not sufficient to overcome the prejudicial error created by allowing such evidence in.

The transcript and the abstract were filled with objections of the plaintiff in an attempt to keep such exhibits out because they were so remote in time and place as not to be pertinent to this plaintiff. In reading the abstract and the transcript, this Court can find no direct evidence of the plaintiff's feed being harmful; no tests by state chemists of any toxicity or existence of urea in the feed bought by the defendant from the plaintiff's Spanish Fork Branch. The only contaminated food came from different branches and this feed was not sold to the defendant. As a matter of fact, during the time plaintiff's feed was fed to the defendant's cattle, the defendant's cattle's milk production increased from 372 pounds less than the Salt Lake County yearly average production per cow to 1,657 over the yearly average of the Salt Lake County production per cow.

The next matter appealed from was the instruction to the jury on the issue of negligence constituting prejudicial error. The court instructed that " the feed in question was manufactured in violation of the statute, there was negligence per se as a matter of law."

This Court has long held that the violation of a statute does not necessarily constitute negligence per se and may be considered only as evidence of negligence, and thus the instruction of the court is prejudicial error and should be reversed on that ground. See Thompson v. Ford Motor Co., 16 Utah 2d 30, 395 P.2d 62 (1964). Justice Crockett, in the Thompson case, noted that violation of a safety standard set by statute or ordinance may be regarded as "prima facie evidence of negligence, but is subject to...