Peckham v. EASTERN STATES FARMERS'EXCHANGE, Civ. A. No. 1380.

• Decision Date: 18 August 1955
• Docket Number: Civ. A. No. 1380.
• Citation: 134 F. Supp. 950
• Parties: Russell M. PECKHAM and Harold C. Murphy d/b/a Orchard Hill Farm, Plaintiffs, v. EASTERN STATES FARMERS' EXCHANGE, Incorporated, Defendant.
• Court: U.S. District Court — District of Rhode Island

134 F. Supp. 950

Russell M. PECKHAM and Harold C. Murphy d/b/a Orchard Hill Farm, Plaintiffs, v. EASTERN STATES FARMERS' EXCHANGE, Incorporated, Defendant.

Civ. A. No. 1380.

United States District Court D. Rhode Island.

August 18, 1955.

Aram A. Arabian, Providence, R. I., Maurice L. Dannin, Newport, R. I., for plaintiffs.

Matthew W. Goring, Stephen B. Ives, Jr., Providence, R. I., for defendant.

DAY, District Judge.

The plaintiffs in this action are dairy farmers who in June 1950 purchased forty bags of Sweepstakes grain, so-called, from the defendant to be fed to their cows. They allege that fourteen of said cows, as a result of eating said grain, became ill and died. They seek to recover the value of said cows and the amount of certain incidental losses claimed to have been sustained by them as a result of their deaths.

Although the trial was somewhat protracted, there being many witnesses, there was no dispute as to many material facts. Prior to June 17, 1950, the plaintiffs owned thirty-two Guernsey cows and two bulls. The cows were fed in the plaintiffs' barn in three rows; i. e., in two rows of nine each, and in a third row of fourteen. The bulls were kept in stalls at the end of the row of fourteen cows. On June 15, 1950, the plaintiffs accepted delivery from the defendant of forty bags of its Sweepstakes grain which they had purchased from the defendant's representative a few days earlier. This grain was shipped directly from the defendant's plant at Buffalo, New York, with other grains, seeds and other products destined for delivery to other farmers living in the same general locality as the plaintiffs.

The plaintiff, Russell M. Peckham, testified that some of the bags containing the grain bore dark, dry spots when they were delivered to him. Grain from a bag which bore such stains at the bottom thereof was first fed to the plaintiffs' cows on June 16, 1950. The evidence established that the feeding practice then employed by the plaintiffs was to open one of the bags, each of which contained approximately two bushels, and remove a bushel of its contents at a time. According to Mr. Peckham, the first bushel so removed was fed to the two rows of nine cows and the remaining bushel was then fed to the fourteen who were in the third row. In this respect he was corroborated by his hired man. Mr. Peckham also testified that the quantity given to each cow depended upon its milk production, the larger quantities being given to the cows producing the more milk. These cows, he said, were all in the row of fourteen. In this connection, it may be noted that this version of the feeding practice is the one which he gave to Dr. Freitas on June 17th, the day when he was first called to the plaintiffs' farm to examine one of their cows that was on the ground in the pasture and obviously ill. The contents of a second bag of the defendant's grain was fed in similar fashion on Saturday, June 17th, but no further feedings were made therefrom, two of the cows dying on that day. Four additional cows died during Sunday night and the remaining eight of the fourteen stalled in the row of fourteen died within the next five days. All of the cows which died displayed the same symptoms of illness prior to their deaths.

The evidence established beyond question that all of these cows were healthy animals prior to June 16th.

When the plaintiff Peckham discovered the first sick cow he called one Dr. Cyril J. Allen, a veterinarian licensed to practice in Massachusetts. He administered treatment which proved ineffective. Later in the day, Dr. Allen made a search of the farm premises to determine if there were any vegetation of any kind which might have caused this cow's illness. When he found other cows lying in the pasture displaying similar symptoms he suggested that a veterinarian licensed to practice in Rhode Island should be called for a consultation. It was later that day that Dr. Freitas appeared.

The evidence further establishes that on June 21st the plaintiff Peckham called Robert E. Steere, the field manager of the defendant, and advised him of the situation with respect to his cows. Mr. Steere went to plaintiffs' farm on that date and was told by the plaintiff Peckham of what had happened to his herd. It is clear that he called the office of the defendant on this occasion and reported the situation at the plaintiffs' farm. There is a substantial dispute as to what he reported. Plaintiff Peckham said he told his office "things look black"; Mr. Steere, on the other hand, contends he merely said that a serious complaint had been made to him about the grain. In any event, it is clear that at this time defendant had notice that plaintiffs were contending that the grain had caused the sickness and death of their cows. Mr. Steere returned to the plaintiffs' farm on the next day and obtained samples of the remaining contents of each of the bags used by the plaintiffs. These samples and two samples from unopened bags were sent by him in sealed containers to the Buffalo plant of the defendant and received by it.

After June 17th careful inspections of the plaintiffs' farm and farm buildings were made by the plaintiff, the veterinarians, Mr. Steere and others in a search for any object or material, other than the grain, which when eaten by the cows would have caused their sickness and death. The results of these inspections were negative.

Samples of the grain fed to the cows were afterwards submitted to a private chemist, to the then Rhode Island State College, the State Department of Health of the State of Rhode Island and the U. S. Food and Drug Administration for analysis to determine the presence therein of any poisonous substances. These tests were limited to the determination of the presence of certain specific poisons. They proved to be negative, but the results thereof did not negate the existence of other poisons for which appropriate tests were not made.

Tests of a portion of the carcasses and the stomach contents of some of the dead animals for specific poisons likewise proved to be negative.

Both Dr. Allen and Dr. Freitas, who saw and treated the plaintiffs' cows, testified that they had been poisoned. Dr. Jungherr, who appeared as an expert in behalf of the defendant, testified that in his opinion poison killed them and that the circumstances pointed to a common cause of their deaths. Sometime prior to 1950 he had been engaged by the defendant to improve the method then being used by it to sanitize feed bags after their return to the defendant's plant for refilling.

The testimony showed that prior to 1950 or 1951 the defendant had used cyanide gas to sanitize these bags. This method, Dr. Jungherr testified, had proved ineffective to destroy all bacteria which were capable of producing a death dealing toxin. This toxin was of a nature that would not be revealed either in the liver or by a culture of the blood. Dr. Jungherr further testified that as a result of his studies he recommended the discontinuance of the use of cyanide gas and the use of dielectric heat for sanitizing previously used bags. This method was found by his tests to be much more reliable. He also testified that he learned in 1950 or 1951 of the adoption of the latter process by the defendant. However, he disclaimed any personal knowledge of the exact date of the commencement of the use of the dielectric heat method.

Mr. Warren R. Flack, the director of the defendant's laboratory in charge of quality control, testified that the dielectric heat method was used after April 1, 1950, the previous method being unsatisfactory.

Listening to his testimony, which in not a few instances did not impress me, I asked him if the defendant had any records showing the date of the adoption of the dielectric heat method. He assured me that it did have such records. However, none were produced during the trial.

Mr. Flack admitted receiving the four samples prepared and sent by Mr. Steere to the Buffalo plant of the defendant the day after he had advised the defendant of the serious complaint being made by the plaintiffs. Despite...