Midwest Game Co. v. M. F. A. Mill. Co., s. 46614

Decision Date12 January 1959
Docket Number46615,No. 1,Nos. 46614,s. 46614,1
Citation320 S.W.2d 547
PartiesMIDWEST GAME COMPANY, Inc., a Corporation, Appellant, v. M. F. A. MILLING COMPANY, Respondent. OZARK TROUT FARM, a Corporation, Appellant, v. M. F. A. MILLING COMPANY, Respondent
CourtMissouri Supreme Court

Albert Thomson, Robert Coatsworth, Davis, Thomson, VanDyke & Fairchild, Kansas City, of counsel, for appellants, Midwest Game Co., Inc., and Ozark Trout Farm.

Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Donald J. Hoy, Springfield, for respondent.

HOLMAN, Commissioner.

Midwest Game Company, Inc., owner of the Troutdale Ranch at Gravois Mills, Missouri, and Ozark Trout Farm, a corporation, of Fayetteville, Arkansas, each filed a suit in the Circuit Court of Greene County, Missouri, seeking damages in the sum of $10,000 from M. F. A. Milling Company, defendant-respondent. The petitions were identical. Defendant filed a motion to dismiss the Second Amended Petition in each case upon the ground that said petitions failed to state a claim upon which relief could be granted. The trial court sustained said motions and each plaintiff has appealed. In this court the cases have been treated by the parties as consolidated and hence will be disposed of in one opinion. We will hereinafter refer to the petitions as though there were one.

The petition is in two counts. In the first count it is alleged:

'2. That plaintiff is, and at all times hereinafter mentioned was, the owner of the Ozark Trout Farm at Fayetteville, Arkansas, for the purpose of raising trout for commercial purposes.

'3. That by established and prevailing trade custom, manufacturers of prepared or formulated 'dry' fish foods were, and for some time prior to plaintiff's use of defendant's product, marketing only 'complet' fish foods. Said custom was known by defendant or in the exercise of ordinary prudence should have been known by it.

'4. Defendant manufactured and sold its prepared 'dry' fish food in competition with 'complete' fish foods then available.

'5. Defendant's fish food was similar in appearance, texture, contents, packaging and price to the available 'complete' fish foods.

'6. In violation of said trade custom, the defendant's fish food was and is not a 'complete' fish food, adequate without supplementation to sustain and promote the normal health and growth of fish, and that defendant knew or in the exercise of ordinary care should have known said fact.

'7. Defendant negligently labeled and sold its fish food in a manner calculated to induce prospective purchasers and plaintiff to conclude that its fish food was 'complete' fish food, proven by laboratory research and testing by:

'(a) failing to state and warn on the labels thereto that a supplemental food was required.

'(b) failing to state and warn on the labels thereto that the defendant's fish food was merely a supplement.

'(c) failing to state and warn that the defendant's fish food was not a 'complete' fish food.

'(d) failing to state and warn that the defendant's fish food was merely an experimental formulation or product.

'(e) failing to warn that the defendant had conducted no active research or testing to determine the safety, efficacy and completeness of its fish food.

'(f) failing to include and provide sufficient fish nutriment for the healthy growth and development for fish.

'8. The defendant by negligently failing to state and warn prospective purchasers and plaintiff as aforesaid, impliedly warranted that its product was a 'complete' fish food, adequate without supplementation to promote the healthy growth and development of fish; and has estopped itself to deny its product is a 'complete' fish food.

'9. As a direct and proximate result of the defendant's negligence and breach of trade custom and usage, and in reliance on said trade custom and the defendant's superior knowledge as to its product, plaintiff purchased and fed the defendant's fish food during February, March, April, May and June, 1955, as a 'complete' fish food; and as a direct and proximate result of the use thereof, the plaintiff's fish became sickly, afflicted and died. Plaintiff expended large sums of money endeavoring to cure and save its sick and afflicted fish, and sustained further losses in expected profits and goodwill.'

We have concluded that the first count of the petition states a claim upon which relief could be granted. In considering the issues presented we have borne in mind that 'It is well settled that a motion to dismiss a petition admits, for the purpose of the motion, the truth of all facts well pleaded therein and any inferences fairly deducible from the facts stated, and we construe the petition favorably to the plaintiff giving him the benefit of every reasonable and fair intendment in view of the facts alleged. * * * The question presented is whether the facts stated invoke the application of principles of substantive law which would entitle plaintiff to the relief he seeks.' Jacobs v. Jacobs, Mo.Sup., 272 S.W.2d 185, 188.

No case has been cited which involves a factual situation similar to the one here presented. It would therefore seem that the case must be decided upon such general principles of law as may appear applicable. Plaintiffs contend that there are two theories under which a claim for relief is stated in the first count, i. e., (a) upon defendant's breach of an implied warranty of fitness for the purpose for which the food was sold and (b) negligence of defendant in failing to warn plaintiffs that the food was not fit for the purposes for which it was sold in that it was not a complete food. We agree that recovery could be predicated upon either of those theories.

Viewed most favorably to plaintiffs it will be noted that the petition alleges the existence of an established trade custom whereby manufacturers of prepared fish foods marketed only 'complete' fish foods and that defendant knew of that custom. It is further alleged that in violation of that custom defendant manufactured and sold a fish food similar in appearance, packaging and price to the 'complete' foods which was not, in fact, a complete food, adequate without supplementation to sustain the normal health and growth of fish, which fact was known to defendant; that plaintiffs purchased and fed defendant's fish food as a 'complete' food, in reliance upon said trade custom and defendant's superior knowledge as to its product. We think it may be fairly inferred from the allegations of the petition that there are certain essential food elements that must be supplied to fish that are being grown commercially under domestic surroundings (all of which are contained in the 'complete' food customarily sold) and that the omission of any such essential element from the ration will, after a period of time, cause the fish to become sick and die.

Inasmuch as a petition which alleges an express warranty by a defendant that its food was a complete food would have stated a claim for relief, Ralston Purina Co. v. Swaithes, Mo.App., 142 S.W.2d 340, it is clear that if the averments of the instant petition are sufficient to state an implied warranty plaintiffs have stated claims upon which relief may be granted.

It is an established rule that in a sale of food for immediate human consumption there is generally an implied warranty that the food is wholesome, is fit for the purpose, and is of merchantable quality. And a buyer of packaged food products may recover from the manufacturer upon an implied warranty of fitness even though there is no express privity of contract between the manufacturer and buyer. Carter v. St. Louis Dairy Co., Mo.App., 139 S.W.2d 1025.

Defendant concedes the existence of the foregoing rules and their applicability to the sale of food for human consumption. It points to the fact, however, that there is no allegation that the food sold to plaintiffs was unwholesome or contained any deleterious substance, and hence it is said that plaintiffs are asking the court to apply a more liberal rule to the sale of food for animals than is applied to the sale of food for human use. That contention would be valid if it were not for the allegation concerning the trade custom of selling only 'complete' fish foods. We think it is reasonable to conclude that an implied warranty of fitness may be annexed to a transaction by reason of a trade custom or usage. Note the following from the Uniform Sales Act: 'Sec. 15. Implied warranties of quality.--Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: * * * (5) An implied warranty or condition as to the quality or fitness for a particular purpose may be annexed by the usage of trade.' 1 U.L.A. p. 6. While we recognize that this state has not adopted the Act, we think the fact that the quoted section was approved by the National Conference of Commissioners on Uniform State Laws, and has been adopted by 35 states, lends support to the soundness of the view we have adopted. See also Procter v. Atlantic Fish Companies, 208 Mass. 351, 94 N.E. 281; Jacobs v. Danciger, 328 Mo. 458, 41 S.W.2d 389, 77 A.L.R. 1237; and Pine-Brownell Co. v. Coleman, 63 Ohio App. 259, 26 N.E.2d 216.

Defendant has pointed out that in some states it has been held that an implied warranty of fitness does not attach to the sale of food for animals. The cases of Kroger Grocery & Baking Co. v. Woods, 205 Ark. 131, 167 S.W.2d 869, and Royal Feed & Milling Co. v. Thorn, 142 Miss. 92, 107 So. 282, so hold. To the contrary, however, see Judd v. H. S. Coe & Co., 117 Conn. 510, 169 A. 270, and Larson v. Farmers' Warehouse Co., 161 Wash. 640, 297 P. 753. It is our view that an implied warranty should at least attach in cases like the...

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    ...that the user will realize this, if, further, he (the supplier) fails to use reasonable care to warn.' See also Midwest Game Co. v. M. F. A. Milling Co., Mo., 320 S.W.2d 547, 551, in which plaintiff stated a cause of action for defendant's negligence in failing to warn that a packaged fish ......
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