O'Neal v. Carolina Farm Supply of Johnston, Inc., No. 0010

• Court: Court of Appeals of South Carolina
• Writing for the Court: BELL; SANDERS, C.J., and GARDNER
• Citation: 279 S.C. 490,309 S.E.2d 776
• Parties: Malcolm J. O'NEAL and C.O. Clark, Jr., Appellants, v. CAROLINA FARM SUPPLY OF JOHNSTON, INC., Respondent. C.O. CLARK, Jr., Appellant, v. CAROLINA FARM SUPPLY OF JOHNSTON, INC., Respondent. C.O. CLARK, Sr., Appellant, v. CAROLINA FARM SUPPLY OF JOHNSTON, INC., Respondent.
• Decision Date: 28 November 1983
• Docket Number: No. 0010

Page 776

309 S.E.2d 776 279 S.C. 490 Malcolm J. O'NEAL and C.O. Clark, Jr., Appellants,
v.
CAROLINA FARM SUPPLY OF JOHNSTON, INC., Respondent.
C.O. CLARK, Jr., Appellant,
v.
CAROLINA FARM SUPPLY OF JOHNSTON, INC., Respondent.
C.O. CLARK, Sr., Appellant,
v.
CAROLINA FARM SUPPLY OF JOHNSTON, INC., Respondent. No. 0010. Court of Appeals of South Carolina. Nov. 28, 1983.

Page 777

[279 S.C. 491] C. David Sawyer, Jr., and Richard J. Breibart, Griffith, Coleman, Sawyer & Griffith, Saluda, and Kennedy & Price, Columbia, for appellants.

Joel W. Collins, Jr., and Rhett P. Dave, III, Nelson, Mullins, Grier & Scarborough, Columbia, for respondent.

Page 778

[279 S.C. 492] BELL, Judge:

The plaintiffs in these consolidated cases sued for damages for the death of their swine. They alleged that the loss was caused by toxic corn negligently furnished by the defendant Carolina Farm Supply to the plaintiff C.O. Clark, Jr., doing business as Hillcrest Farm. Hillcrest milled the corn into feed and sold it to two other farms operated by the remaining plaintiffs. The jury returned a verdict for Carolina Supply in all three cases. The plaintiffs appeal. We affirm.

Hillcrest is a farming operation engaged, among other things, in raising feeder hogs and in milling hog feed for sale and for its own use. During the fall of 1978 Hillcrest ordered a "multi" (i.e., three carloads) of No. 2 yellow corn from Carolina Supply for delivery in 1979. The corn was to be stored at Carolina Supply's place of business until Hillcrest had need of it. Hillcrest would then send its trucks to take delivery of the corn in such quantities as it required from time to time.

In July 1979 Carolina Supply delivered a quantity of corn from its bins to Hillcrest's driver. The corn had been purchased from one Rhame. There was testimony that the corn was bad when it was taken from the bins and that the driver called this condition to the attention of Carolina Supply. There was also testimony that the plaintiff C.O. Clark, Sr., a former partner in Hillcrest who was still employed by them at the time, told Carolina Supply the corn was bad after it was delivered.

At the direction of Clark, Sr., Hillcrest milled the corn into hog feed and sold a portion of it to O'Neal and Clark, a hog breeding partnership consisting of Clark, Jr., and plaintiff Malcolm O'Neal. Clark, Sr., also purchased some of the feed for his own feeder hog farm, known as Derrick and Clark. The remaining feed was retained by Hillcrest for its own use.

At the end of July, stock fed with the milled feed began to sicken and die. Laboratory tests on the dead swine showed they had poisoned livers. Tests on the feed and the remaining unmilled corn showed a high concentration of aflatoxin, a toxic substance caused by the growth of the fungus Aspergillus flavus on corn. As a result of this discovery, the plaintiffs sued Carolina Supply in tort, alleging it was negligent,[279 S.C. 493] willful, wanton, and reckless in furnishing corn which it knew or reasonably should have known was toxic.

Carolina Supply answered the complaints by setting forth several defenses, including: (1) a qualified general denial; (2) the intervening negligence of C.O. Clark, Sr.; (3) the contributory negligence of all the plaintiffs; (4) assumption of the risk; and (5) the sole negligence of Rhame, the farmer who grew, harvested, and stored the corn and sold it to Carolina Supply. All of these defenses were submitted to the jury.

I.

The plaintiffs assign four errors in the trial of the case. First, they claim the trial judge erred in failing to instruct the jury that Carolina Supply had the burden of proof on the defense of sole negligence of a third party. In particular, they object to the statement of the trial judge that, "... it's necessary for the Plaintiff to prove his case against the Defendant. It's not necessary for the Defendant to prove that somebody else was negligent."

The plaintiffs contend the defense of sole negligence of a third party is an affirmative defense and the defendant had the burden of proving it to avoid liability. They rely for this proposition on the decision in McCabe v. Sloan, 184 S.C. 158, 191 S.E. 905 (1937). McCabe involved a collision between a motorcycle and a pedestrian in which the pedestrian was seriously injured. He sued, alleging the driver of the motorcycle was driving at an excessive rate of speed. In defense the driver alleged that the accident was caused by the pedestrian's dog running in front of and against his motorcycle, without which the accident would not have happened. Bonham, J., described the defense as

designed to disprove the plea of plaintiff that defendant's alleged negligence was

Page 779

the proximate--the direct cause of the collision. The defendant pleaded an independent, intervening cause.

184 S.C. at 162, 191 S.E. at 907. The Court held the burden of presenting evidence of a fact was on the party pleading it. The opinion does not indicate the Court...