Miller v. Economy Hog & Cattle Powder Co.
| Decision Date | 18 June 1940 |
| Docket Number | 45014. |
| Citation | 293 N.W. 4,228 Iowa 626 |
| Parties | MILLER v. ECONOMY HOG & CATTLE POWDER CO. |
| Court | Iowa Supreme Court |
Appeal from District Court, Cedar County; H. C. Ring, Judge.
Action at law to recover damages for the death of sheep allegedly caused by feeding a product purchased from defendant. From judgment for plaintiff, defendant appeals.
Reversed.
C. R Barnes, of Shenandoah, and M. C. Hamiel, of Tipton, for appellant.
Fisher & Fisher, of Cedar Rapids, for appellee.
Action at law to recover for the death of sheep alleged to have resulted from the feeding of stock powder compounded and sold by defendant to plaintiff. The petition alleged breach of warranty and negligent representations. The answer was a general denial coupled with a plea of contributory negligence. Trial to a jury resulted in a verdict and judgment against defendant for $1,600, and defendant has appealed.
Defendant-appellant Economy Hog & Cattle Powder Company, an Iowa corporation with its principal place of business in Page County, was engaged in the manufacture and sale of livestock conditioning powders, remedies, etc., compounded under its formulae and sold under its trade names. One C. C. Kenworthy had been sales manager for appellant for a number of years. Plaintiff-appellee, F. S. Miller, was a farmer and stock feeder near the town of Clarence, Cedar County, Iowa. Paul Pruess, a farmer and feeder of Cedar County, had for several years taken orders for appellant's products in Cedar County, and adjacent territory. Appellant paid Pruess a commission upon his sales. The orders taken by him were filled by shipments direct from appellant to the purchasers and occasionally by shipments to Pruess, but he does not appear to have stocked appellant's products for sales on his own account.
In August, 1936, appellee shipped from South Dakota about 2,800 lambs or sheep. These were pastured until about October 1st, when appellee moved them to his home farm and gradually increased their feed. Appellee testified the sheep were in average condition; that a few of them died each month prior to December, and about fifteen between December 1 and December 26. He had previous experience in feeding sheep from this territory and thought the losses in December were somewhat more than normal. About December 9, appellee called Dr. Wilson, a veterinarian, who testified he found about a dozen of the sheep sick and two dead. He examined the sheep and performed postmortem examinations on dead animals. Dr. Wilson found the ailment was gastritis, an inflammation of the lining of the stomach or digestive tract. He described this condition as slight or relatively mild. He found no infectious disease. In his opinion the gastritis was caused by too much concentrated food, the food was too rich in protein. The protein came principally from oil meal, cottonseed meal and bean meal. Dr. Wilson advised appellee to stop or reduce the protein feed and appellee testified that food was substantially reduced.
About December 19, Dr. Paul examined the sheep and he also testified to a mild gastritis. At this time there were other postmortem examinations and Dr. Wilson, Dr. Paul and Dr. Fenton made laboratory tests, which showed no infectious or congestive disease.
Mr. Pruess and Mr. Kenworthy had at times travelled together soliciting sales for Economy products in Cedar County. In the fall of 1936, they twice called upon appellee. Appellee testified Kenworthy then told him the powders would do the sheep good and wouldn't harm them, and advised him to get in touch with Pruess any time he decided to buy any goods of the Economy Hog & Cattle Powder Company.
On or about December 26, appellee, by appointment, met Pruess in Clarence. Appellee's story was that he told Pruess he had been losing too many sheep and that the veterinarian had told him it was protein poisoning and had advised him to take them off feed; that Pruess was asked if he thought it would be advisable to give them the powders, and that Pruess said he thought it would be all right but suggested that Kenworthy be contacted so as to get the thing straight. Pruess telephoned Kenworthy, who talked to appellee. Appellee testified he repeated to Kenworthy the information he had given Pruess about the sheep and the veterinarian's statements and asked Kenworthy if it would be all right to feed the stock powder to the sheep and that Kenworthy said it would be all right and that appellee should get it from Pruess' farm. (Upon each sack of Economy Stock Powder was a likeness of a hog and appellee frequently referred to it as hog powder.) Appellee said Kenworthy told him to feed the stock powder and that he would ship appellee 500 pounds of Economy Sheep Powder to follow up with. He instructed appellee how much powder to feed for each lamb-to mix the powder with oats-to take the lambs off feed at least twenty-four hours until they were hungry and would be forced to eat. Appellee testified that in feeding the powder to his sheep he relied upon the statements made by Kenworthy.
Apparently appellee understood he was to buy stock powder from Pruess and Kenworthy understood appellee would borrow it pending receipt of shipment from the company. To avoid a trip to the Pruess farm for stock powder appellee suggested to Pruess that he could temporarily borrow one 100-pound sack from one Bixler. This was done. Pruess had advised appellee that there was a freight shipment from appellant enroute by railroad out of which appellee's needs could be supplied. This shipment consisted of sixteen 100-pound sacks consigned to Pruess in part for his own use and in part for other parties. It arrived at Clarence later that day (Saturday).
The following Monday morning appellee called at the car, secured three sacks of the powder from Pruess and paid for them. Appellee testified the sheep had been kept without food on Saturday; that Sunday they were fed the one sack of the powder secured from Bixler, mixed with oats as directed by Kenworthy; that a second feeding of the powder mixed with oats was made Monday; that Tuesday nearly 350 of the sheep were dead or dying, and that no more stock powder was fed. Appellee claimed 435 sheep died within a few days, but that after the end of that time only a few sheep died during a period of several months.
Prior to the time answer was filed the court overruled appellant's motion for change of venue from Cedar County to Page County. This ruling is assigned as error. The motion and the resistance thereto were supported by affidavits. Reference has already been made to most of the material matters sought to be proven by said affidavits. Appellee based his right to maintain the action in Cedar County upon the following Code Section:
The two elements essential to venue in Cedar County were: (1) Agency of Pruess for the transaction of business for appellant in Cedar County, and (2) that the transactions in question grew out of or were connected with such agency.
The record contains evidence of a regular course of dealings in which Pruess, a resident of Cedar County, had for some years solicited orders for appellant in that county and vicinity, working individually and with sales manager Kenworthy; that he collected accounts for appellant and that occasionally orders sold by him to others were shipped to him. The transaction here in controversy was initiated through Pruess representing appellant. Pruess assisted in the negotiations and in the completion of the sale.
It is quite evident that Pruess was agent for the transaction of the business of appellant in Cedar County and that this action grew out of the business of that agency. Therefore, the motion for change of venue was properly overruled. Kabrick v. J. I. Case Threshing Machine Co., 180 Iowa 598, 163 N.W. 368; Lake v. Western Silo Co., 177 Iowa 735, 158 N.W. 673; Wood v. Rice & Fogarty, 118 Iowa 104, 91 N.W. 902; Locke v. Chicago Chronicle Co., 107 Iowa 390, 78 N.W. 49; Tracy v. Liberty Oil Co., 208 Iowa 882, 226 N.W. 178.
The second error assigned is the overruling of the first ground of appellant's motion for directed verdict, which charged that the evidence failed to show it sold any stock powder to appellee or that he fed his sheep any stock powder purchased from appellant. Appellant contends the court should have held as a matter of law that Pruess acted as an independent dealer rather than as an agent for appellant in the sale of the three sacks of stock powder to appellee.
Reference has already been made to the circumstances connected with the transaction, the conversation between Pruess and appellee and the telephone conversation with Kenworthy in which appellee claimed he was told to get the stock powder from Pruess and that the sheep powder would be shipped to him direct. Unquestionably, the arrangement was for the purpose of placing appellant's stock powder in the hands of appellee without delay. By expediting the deal such arrangement would be to the advantage of both appellant and Pruess. Having procured the sale, Pruess would be entitled to a commission upon the total amount sold whether shipped direct to the purchaser by the company, or delivered by Pruess. The diversion by Pruess to appellee of part of a shipment originally intended for others would not necessarily constitute Pruess an independent dealer. He may well have done so as agent of appellant. Appellee stated that his conversations with Kenworthy and Pruess led him to...
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Rembrandt Enters. v. Tecno Poultry Equip., SpA
... ... animals.” Mills , 454 N.W.2d at 850 (citing ... Miller v. Econ. Hog & Cattle Powder Co. , 293 ... N.W. 4 (Iowa 1940)). But ... ...