Kunzman v. Cherokee Silo Co.

• Decision Date: 03 April 1962
• Docket Number: No. 50418,50418
• Citation: 253 Iowa 885,95 A.L.R.2d 673,114 N.W.2d 534
• Parties: , 95 A.L.R.2d 673 Cory KUNZMAN, Appellee, v. CHEROKEE SILO COMPANY, Inc., Appellant.
• Court: Iowa Supreme Court

Page 534

114 N.W.2d 534

253 Iowa 885, 95 A.L.R.2d 673

Cory KUNZMAN, Appellee, v. CHEROKEE SILO COMPANY, Inc., Appellant.

No. 50418.

Supreme Court of Iowa.

April 3, 1962.

McDonald, Sayre & McDonald, Cherokee, for appellant.

James & Greer, Spencer, and Miller, Miller & Miller, Cherokee, for appellee.

THOMPSON, Justice.

Plaintiff Cory Kunzman is a farmer and stock feeder in O'Brien County. Defendant Cherokee Silo Company, Inc., builds silos. August 7, 1959, by a signed agreement on defendant's printed form, it agreed to build, on plaintiff's farm, a cylindrical, concrete stave silo, 40 feet high and 14 feet in diameter, for which plaintiff agreed to pay $1977.21. Printed on the back of the form was:

'Guarantee

'You can depend upon your silo to be the best and upon us to stand back of any defective material or workmanship for a period of ten (10) years. No special precautions are needed for grass, silage, or shelled, ground or ground ear corn containing not less than 20% moisture.'

Plaintiff was then feeding 110 head of cattle. He testified he told defendant's representative he would use the silo for corn silage or shelled corn and asked him if it was strong enough and was told it was.

Plaintiff filled the silo with shelled corn with a moisture content of 31%. Instead of curing, the corn shortly spoiled, except about four feet at the bottom of the silo. This action is for damages, based upon the pleaded negligence of defendant, in constructing a silo that was defective and, in constructing it improperly and in such manner that cracks in the silo appeared, permitting the outside air and moisture to enter the silo. Damages claimed were $300.00 for replastering the silo and tightening its hoops, $200.00 for removing spoiled corn and $4400.00 for loss of the corn which spoiled. Trial to a jury resulted in verdict and judgment for plaintiff for $3800.00. Defendant appeals.

The errors assigned are to orders overruling defendant's motions for directed verdict, judgment notwithstanding verdict and new trial, and defendant's objections to questions put to witnesses for plaintiff and to Exhibit 19, placed in evidence by plaintiff. In considering the assigned errors involving its sufficiency to support the verdict, the evidence will be viewed in the light most favorable to plaintiff.

I. Defendant vigorously contends the court should have directed a jury verdict in its favor. We do not agree. There was substantial evidence for the plaintiff that within approximately one month after the silo was built by the defendant and filled with shelled corn by the plaintiff, much of the corn was found to be spoiled. The plaintiff attempted to feed some of it to his cattle, but they did not eat it well; and there is further evidence that it had little if any nutritional value. After talking with John Longstreet, county extension director for 25 years past and a graduate of the animal husbandry division of Iowa State University, and others, the attempt to feed the corn was abandoned and it was spread on the fields for fertilizer. This did not apply to about 600 bushels in the bottom four feet of the silo, which was not spoiled. Plaintiff filled the silo with about 5,000 bushels of shelled corn. The silo was completed by the defendant's employes about October 5, 1959, and about four days later plaintiff commenced filling it with the shelled corn.

When plaintiff commenced to feed the corn, about November 9 following, it was discovered to be spoiled. Not long thereafter, the plaintiff discovered a number of cracks in the cement lining of the silo, about 11 in number; and further observed that some of the hoops on the outside of the silo were loose. The cracks were not large, but there is evidence they were sufficient to permit air to get into the stored corn. They started about four feet from the bottom and ran upwards; and it is significant that the corn on the bottom four feet, below the cracks, was not spoiled.

The defendant contends that plaintiff's evidence was insufficient to generate a jury question, for several reasons. It is said that hairline cracks and loose hoops in themselves do not show negligent construction. But if these matters permitted air to circulate into the corn stored in the silo, we think there was a jury question on the failure of the defendant to use ordinary care in its construction. In Ryder v. Schlichter, C.C.A., Third Cir., 126 F. 487, 488, the court quoted with approval this: '* * * the essentials of a practicable silo are: '(1) It must be, for the proper preservation of the silage, airtight at all times when filled * * *''. This is the tenor of the plaintiff's evidence in the instant case.

The defendant further contends that the standard of care required of it in the construction of the silo is that it be done in the customary and usual manner used generally in the business of erecting concrete silos; that the evidence shows the silo in question was so constructed; and the plaintiff's evidence failed to show to the contrary. Authorities are cited. This rule is analogous to that prevailing in malpractice suits against physicians, who are held to the same degree of skill and standards of practice of other physicians under similar circumstances. Wheatley v. Heideman, 251 Iowa 695, 706, 102 N.W.2d 343, 350. But it is often a jury question whether such a standard of care has been exercised. Accepting plaintiff's evidence in the light most favorable to him, as we must, it appears the metal hoops were not sufficiently tightened; as a result of this cracks sufficient to admit air into the silo after it was filled developed; and the corn spoiled because of the air. It can hardly be contended that this was a construction in accordance with accepted and customary practice; at least the jury might well find it was not. In fact, to those who believed plaintiff's evidence, as the jury apparently did, if the method adopted by the defendant was the customary and usual one in such construction the market and use for that type of silo would rapidly deteriorate.

Again, the defendant urges that the loose hoops and the cracks were not discovered for some time after the silo was built, and so the theory they were caused by weather conditions is as reasonable as that they were due to faulty construction. It is necessary only to point out that the plaintiff was not an expert in silo construction; that the silo was finished in October; that the corn was put into the silo in November and was found spoiled and the defects were discovered in December. In view of the short time between these incidents, a jury question arose as to whether the original construction was defective.

Again, the defendant says that the question of the reason for the spoilage of corn is a subject of expert testimony by biochemists; plaintiff produced no testimony by such experts, and so there is no real evidence that the corn spoiled because of the air admitted through the cracks. Here defendant seems to be saying that the only expert who can be admitted to have any real knowledge must be one who has made a study of biochemistry and holds a college degree in the subject. It is not easy to define what is meant by an expert in these situations; but generally it refers to one who has gained some special knowledge or skill, through study, or experience in like situations. Plaintiff's witnesses who testified that as to the condition of the silo and that admission of air into high moisture corn in a silo will cause spoilage included these, in addition to John Longstreet, referred to above; V. C. Pierce, manager of a grain and feed company in Cherokee for the past 12 years--the company handles and stores grain, including shelled corn, as a part of its business; also testifying for plai...