Murray v. Kleen Leen, Inc.

• Citation: 41 Ill.App.3d 436,354 N.E.2d 415
• Decision Date: 18 August 1976
• Docket Number: No. 75--428,75--428
• Parties: , 20 UCC Rep.Serv. 298 David L. MURRAY, Plaintiff-Appellee, Cross-Appellant, v. KLEEN LEEN, INC., et al., Defendants-Appellants, Cross-Appellees.
• Court: United States Appellate Court of Illinois

Page 415

354 N.E.2d 415

41 Ill.App.3d 436, 20 UCC Rep.Serv. 298

David L. MURRAY, Plaintiff-Appellee, Cross-Appellant, v. KLEEN LEEN, INC., et al., Defendants-Appellants, Cross-Appellees.

No. 75--428.

Appellate Court of Illinois, Fifth District.

Aug. 18, 1976.

Robert L. Douglas, Robinson, for appellants.

E. H. Price, Robinson, and Dale A. Cini and Donald Garrison, of Ryan & Cini, Ltd., Mattoon, for plaintiff-appellee, David L. Murray and defendants-cross-appellants, David L. Murray and Hazel L. Murray.

KARNS, Presiding Justice:

Defendant-appellant, Kleen Leen, Inc., appeals from a judgment of $29,200 for breach of warranty entered on a jury verdict in favor of plaintiff-appellee David L. Murray by the Circuit Court of Crawford County. Kleen Leen urges numerous brounds of error, including contentions that the evidence was insufficient to support the verdict, the damages awarded were excessive and not supported by the evidence, and the trial court erred in granting one of plaintiff Murray's instructions. Murray in turn appeals from a judgment of $12,000 entered on the jury's verdict in favor of Kleen Leen on its counterclaim.

Murray owned and operated a farm in Crawford County, Illinois, where he raised hogs and grain. In the fall of 1969, he became aware of the Kleen Leen program through Bill Harrington, a Ralston Purina Co. representative. (Kleen Leen is a subsidiary of Ralston Purina.) The Kleen Leen program was an attempt to provide hog farmers with specific-pathogen-free breeding gilts through a leasing program. The gilts were to be free of diseases, including atrophic rhinitis, that may be transmitted to young pigs through the birth canal. The gilts were to be specially bred to yield top-quality pigs which could convert feed into pork more efficiently and provide a leaner meat. The program required the hog farmer to undertake extensive preparations on his land to guard against the possibility of disease being transmitted to the gilts following delivery to the farmer.

David Murray met with Bill Harrington and Art Swanson, Ralston Purina Co. representatives, and with Bill Fox, a Kleen Leen representative. After these discussions, Murray read the literature supplied by Kleen Leen, and began preparations on his farm for entry into the program. Following the directions of Harrington and Fox, he depopulated his existing herd, tore down old fences and buildings which were potential germ carriers, and cleaned up the area where the hogs were to be raised. He constructed a farrowing house equipped with a ventilating system and high-pressure sprayer and built new fences at a considerable cost. After Kleen Leen approved Murray's ongoing preparations, the parties entered into a written contract on January 12, 1970. The gilts were to be delivered in three groups, the first group to arrive a mid-March, and the subsequent groups to arrive at two-month intervals.

Murray accepted the animals when delivered and inoculated them. In early June, he experienced problems with moldy feed sold to him by Ralston-Purina. In the middle of June, he discovered that a gilt delivered May 15 was exhibiting the symptoms of atrophic rhinitis. Atrophic rhinitis is an infectious disease occuring in swine which is similar to a cold in humans. It symptoms are sneezing, runny eyes, a deviation of the snout, respiratory problems, and often loss of appetite.

On the advice of a veterinarian, Murray administered heavy doses of antibiotics to the gilts. In the ensuing months, however, approximately twenty-five of them died. Many of the remaining gilts were unable to breed. Those that farrowed had unusually small litters of live pigs, with many stillbirths and mummified pigs. Murray brought suit against Kleen Leen and Ralston Purina, resulting in the judgments that are the basis of these appeals. Ralston Purina has not appealed from the judgment entered against it arising from the sale of defective feed.

Kleen Leen contends that the trial court erred in denying its motion for judgment notwithstanding the verdict. Judgment notwithstanding the verdict is to be entered only where all of the evidence, viewed in the aspect most favorable to the party opposing the motion, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern Railroad Co., 37 Ill.2d 494, 229 N.E.2d 504 (1967). Under section 68(4) of the Civil Practice Act (Ill.Rev.Stat.1973, ch. 110, par. 68(4)), where several grounds of recovery are pleaded in support of the same demand, an entire verdict will not be set aside for the reason that the evidence in support of any ground is insufficient if the evidence on another of the grounds is sufficient to sustain the verdict.

The liability of Kleen Leen was asserted and submitted to the jury in three alternative counts dealing with breach of warranty. The first two counts alleged the breach of express warranties that the gilts were to be free from atrophic rhinitis and of 'top quality.' The third count asserted the breach of an implied warranty of fitness for the particular purpose of breeding. Thus if the evidence was sufficient to support any of these alleged grounds of recovery, the motion for judgment n.o.v. was properly denied.

Dr. Trimble, a veterinarian called by the plaintiff, testified that the symptoms of atrophic rhinitis are a deviation of the nose, sneezing, and watery eyes. These symptoms were confirmed by Dr. Hayden and Dr. Layman, experts called by the defense. David Murray testified that he discovered a gilt delivered on May 15 exhibiting these symptoms on June 15. Phillip and Byron Murray, brothers of the plaintiff, also testified that they observed the gilt with these symptoms. David Murray testified that he showed the gilt with atrophic rhinitis to Harrington and Fox; Harrington identified the symptoms as atrophic rhinitis, while Fox suggested the gilt may have bumped its nose.

David Murray testified that the litters of the gilts were abnormally small, averaging two to three pigs per litter rather than the normal eight to ten. The gilts also produced stillborn pigs, abortions, and mummified pigs. This testimony was corroborated by Phillip and Byron Murray.

A nasal swab test conducted on the gilt with the symptoms of atrophic rhinitis returned negative. A high level of the antibiotic drug ASP, however, had been administered to the gilt. Dr. Trimble testified this could cause the swab test to be negative, and Dr. Layman concurred in his testimony. Dr. Trimble testified that in his opinion, a gilt approximately six months of age which exhibited symptoms of atrophic rhinitis approximately thirty days after delivery to a farm probably contracted the disease prior to delivery in its first few months of life.

Jimmy Harrington and Jewel Garrison, hog farmers who purchased the gilts Murray eventually sold at the direction of Kleen Leen in September and December of 1971, both testified that the hogs they purchased were very thin and undernourished. They testified, however, that the gilts exhibited no signs of atrophic rhinitis and gained weight rapidly under their supervision.

Dr. Hayden testified that the slaughter checks on the source herd for Murray's gilts never revealed atrophic rhinitis. He also testified as to other possible causes of stillbirths, mummified pigs, and abortions, including malnutrition and virus. Bill Harrington and Bill Fox testified as to poor management practices on Murray's farm, including improper bedding and an incomplete farrowing house. Both denied ever seeing any evidence of atrophic rhinitis.

Dr. Dallgren examined the reproductive systems of nine of the swine on Murray's farm. Four were pregnant, three carrying normal-sized litters. None of the reproductive systems of the five remaining animals appeared abnormal, although tests which could have conclusively determined whether the systems were functional were not conducted.

In considering a motion for directed verdict or judgment n.o.v., the reviewing court will not consider conflicts in the evidence, its weight, or the credibility of the witnesses, as these are properly for the jury to consider. McManus v. Feist, 76 Ill.App.2d 99, 221 N.E.2d 418 (4th Dist. 1966). While the evidence here is unquestionably contradictory, we cannot say, considering it in the light most favorable to the appellee, that it so overwhelmingly favors the appellant that the verdict as rendered cannot stand. From the evidence that one gilt and a large number of off-spring exhibited symptoms of atrophic rhinitis, and that some twenty-five of the gilts died, the jury could reasonably have found that Kleen Leen breached its express warranty that the pigs were free from atrophic rhinitis. From the failure of the remaining gilts to breed properly and to farrow normal-sized litters of healthy pigs, the jury could reasonably have found that Kleen Leen breached the implied warranty of fitness for breeding purposes. Because the evidence on either of these grounds was sufficient to support the jury's verdict, we need not dedide whether the representation that the swine would be of 'top quality' rises to the level of an express warranty. ¹

Kleen Leen also urges that its motion for a new trial was erroneously denied, as the verdict was against the manifest weight of the evidence. A verdict is against the manifest weight of the evidence only when the opposite conclusion is clearly apparent or the findings appear to be unreasonable, arbitrary and not based on the evidence. Wilson v. Don LaCost, Inc., 20 Ill.App.3d 624, 314 N.E.2d 27 (4th Dist. 1974). The jury alone must determine the weight of the evidence and credibility of the witnesses on controverted questions of fact. Brayfield v. Johnson, 62 Ill.App.2d 59, 210 N.E.2d 28 (5th Dist. 1965). Neither the trial court nor the reviewing court should sit as a second jury to consider the nuances of the evidence or the demeanor and credibility of the...