Meadolake Foods v. Estes

• Decision Date: 10 November 1948
• Docket Number: No. 4585.,4585.
• Citation: 218 S.W.2d 862
• Parties: MEADOLAKE FOODS, Inc. v. ESTES.
• Court: Texas Court of Appeals

218 S.W.2d 862

MEADOLAKE FOODS, Inc. v. ESTES.

No. 4585.

Court of Civil Appeals of Texas. El Paso.

November 10, 1948.

Rehearing Denied December 15, 1948.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Grayson County; W. C. Dowdy, Judge.

Action by William Glen Estes against Meadolake Foods, Inc., for fraudulent misrepresentations, negligence, and breach of warranty in defendant's sale of cows to plaintiff. Judgment for plaintiff, and defendant appeals.

Reformed, and affirmed as reformed.

Writ of error refused, 319 S.W.2d 441.

Freeman, Wolfe, Keith & Milam, David H. Brown and J. F. Holt, all of Sherman, for appellant.

Webb & Rogers, of Sherman, for appellee.

McGILL, Justice.

This is an appeal from a judgment of the 59th District Court of Grayson County. The suit was brought by appellee, as plaintiff, against appellant as defendant, to recover damages resulting from fraudulent representations alleged to have been made by defendant to plaintiff prior to the sale by defendant and purchase by plaintiff of 35 milch cows on May 15, 1945. Negligence and breach of warranty on the part of defendant, in connection with such sale was also alleged.

Plaintiff alleged that the cows were sold as milk producers for the purpose of producing milk and defendant knew they were sold for such purpose; that at the time of the sale defendant represented to plaintiff that the cows were good sound cattle, free of disease; that plaintiff relied on such representations and but for them would not have bought the cows; that the cows at the time of the sale were infected with Bang's disease and mastitis, and defendant knew they were so infected with Bang's disease; that the disease was spread among other cows which plaintiff owned and the entire herd became infected. Defendant answered by numerous special exceptions, by a general denial and specially denied that the alleged representations were made and that any of the cows sold to plaintiff were infected with Bang's disease or mastitis; affirmatively alleged that if plaintiff sustained any loss same resulted from the fact that the cows which he had at the time of the sale were infected and imparted the infection to the cows he bought from defendant; and because plaintiff's premises and barns used in the operation of his dairy were kept so as to promote the spread of infections, and plaintiff did not follow accepted practices in the management of his dairy to prevent the spread of disease among his cows, and failed to use ordinary care in the operation of his dairy to detect, minimize or halt the spread of disease throughout his herd. Upon answers to special issues submitted to a jury judgment was rendered against defendant for $6,180, $2,015 thereof being for the difference in the cash market value of the cows sold at the time of the sale had they been free of Bang's disease and their value by reason of their being infected with Bang's disease; $2,015 thereof for the difference in the cash market value of the cows owned by plaintiff immediately before and after they became infected with Bang's disease; and $2,150 thereof being for the reasonable cash market value of the loss of milch production proximately caused by Bang's disease in plaintiff's herd.

In its amended motion for a new trial defendant urged 263 assignments of error. It has presented 43 points in its brief and asks us to consider specifications of error not presented in its brief if those presented are not convincing. Of course we can not do this.

By appropriate points appellant contends that the evidence was insufficient to show that the cows purchased from it had Bang's disease when sold and delivered; that plaintiff's other cows were free from Bang's disease at that time; that plaintiff's herd became infected with Bang's disease at any time or within any reasonable time following the purchase; or that any supposed infection of plaintiff's herd with Bang's disease was caused by the cows which plaintiff bought from defendant. The findings germane to these points in substance are: (1) some cows delivered by defendant to plaintiff on May 16, 1945 were at that time infected with Bang's disease; (14) at such time none of the cows which plaintiff already owned were infected with Bang's disease; (15) the milch cows purchased by plaintiff from defendant transmitted and communicated Bang's disease to the milch cows already owned by plaintiff.

The rule of law applicable to these findings is, that if disregarding all adverse evidence and giving credit to all favorable evidence and indulging every legitimate favorable conclusion which may be drawn from the facts proved, the findings are supported, they must be sustained. Henwood v. Neal, Tex.Civ.App., 198 S.W.2d 125.

The evidence relied on by appellee is referred to in his brief and is not challenged by appellant. We summarize the portions thereof deemed material, supplemented by our own inspection of the statement of facts: The plaintiff William Glen Estes was 42 years of age at the date of the trial; he had been reared on a dairy farm in Grayson County; during his lifetime he had assisted in operating and had operated dairy farms in Grayson County, in Waco, and a 3,000 acre ranch in Llano County. In the middle of March, 1945, he bought a 527 acre dairy farm in Grayson County. He also bought from the owner thereof 30 head of milch cows. The dairy farm he bought had been selling milk to defendant as a Grade A dairy. The defendant bought milk from local dairies, including plaintiff's, and also maintained its own dairy farm and herd which it ran through its farm manager, and which it held out to plaintiff as a top milk producing herd. At the time plaintiff entered into the contract in question and bought cows from defendant he was operating a dairy with a herd of 35 cows on his farm. Plaintiff bought 35 head from defendant, which when added to his present herd gave him a herd of 70 milch cows. He testified that a dead calf with very little hair on it was born from a certain cow which he had bought from defendant, on June 9, 1945; that this cow would not breed again until October 10, when she again lost her calf; that certain other cows which he had bought from defendant aborted on June 22, 1945, July 12, 1945, July 16, 1945, July 29, 1945, July 31, 1945, and on August 3, 1945; that this epidemic ran through plaintiff's entire herd and by February 28, 1946, 27 cows in plaintiff's herd of 70 had aborted, the first 7 of which had been bought from defendant and 15 of which came from defendant's herd, the other 12 of which were originally owned by plaintiff; that 7 other cows bought from defendant would not breed; that Bang's disease causes cows to abort and slough their calves which is usually followed by retention of the afterbirth and prevents some of the cows from thereafter calving. The disease is highly contagious and will contaminate other cows over night; that the 27 cows that lost their calves between June 9, 1945 and Feb. 28, 1946 and the calves followed the symptoms of Bang's disease; that these symptoms are that 75% or 80% of the cows that lose their calves from Bang's disease retain the afterbirth, the calves come without hair and are poor and thin, whether they live or die, sometimes so poor and thin that when born alive they die in a few days; sometimes they are deformed — one or two legs shorter than the others — no sign of one eye — both eyes grown over, ulcerated places on them, completely without hair and have a palish flesh color; that from his experience with his herd and the diseases of cattle, in his opinion the cows that he bought from the defendant were infected with Bang's disease; that some of the cattle so bought were so infected when they were sold; that from the time he bought the cows from the defendant up until the time he disposed of the last of his herd, which was on June 27, 1946, Bang's disease had swept through his entire herd; that prior to the time he bought the Meadolake herd his herd was free of Bang's disease.

Clifford Blythe, defendant's farm manager between Jan. 1, 1938 and September 21, 1943, testified that Bang's disease was present in defendant's herd during the entire time that he was there; that defendant had sent him to school in Fort Worth to study Bang's disease; that he started treating the defendant's herd in 1942 for Bang's disease; that in 1942 approximately 80 cows in defendant's herd tested positive for Bang's disease; that when he left defendant's employment in 1943 there were approximately 18 cows in defendant's herd that tested positive for Bang's disease.

Eugene Bentley, who worked on defendant's farm for 7½ years during the period from 1935 to 1942, and three or four months in the winter of 1943 and spring of 1944, testified that one of defendant's cows which was sold to plaintiff had been tested, had Bang's disease and had lost a calf while he was working for defendant; that four other cows which were sold to plaintiff by defendant had Bang's disease during the time he worked for defendant. Dr. W. N. Porter, a licensed veterinarian, testified that on December 19, 1943, he delivered 600 doses of Bang's vaccine to defendant's dairy farm, together with other medicines to help remove retained afterbirths that he never tested or treated defendant's cows; that said disease is highly contagious and infectious and it is possible for one infected cow to cause the disease to spread throughout an entire herd in a very short time. He testified from a hypothetical question that the cause of the 27 abortions in plaintiff's herd above referred to was in all probability Bang's disease; that from the nature of the disease it was reasonably probable that some of the 15 cows that aborted after they were delivered to plaintiff had theretofore lost their calves.

Knox Sprowl, who had worked for approximately ten years on the Head farm where a dairy was operated, and which was purchased by plaintiff and on which plaintiff...