La Plant v. E. I. Du Pont De Nemours & Co., 7872

Decision Date22 April 1961
Docket NumberNo. 7872,7872
Citation346 S.W.2d 231
PartiesClifford L. LA PLANT, Plaintiff-Respondent, v. E. I. DU PONT DE NEMOURS AND COMPANY, Inc., Defendant-Appellant.
CourtMissouri Court of Appeals

Carl E. Geuther, Wilmington, Del., Hocker, Goodwin & MacGreevy and John P. McCammon, St. Louis, for defendant-appellant.

James V. Conran, Hal E. Hunter, Jr., New Madrid, for plaintiff-respondent.

STONE, Presiding Judge.

In this jury-tried action predicated on alleged negligence, plaintiff sued and proceeded to trial against St. John's Levee & Drainage District (referred to as the Drainage District), Ollie Delaney, its supervisor, Cypress Supply Company (referred to as Cypress), E. P. DuPont de Nemours and Company (referred to as DuPont). At the close of plaintiff's evidence, the Drainage District and Delaney went out of the case on motions for a directed verdict. Upon submission, the jury found against plaintiff and in favor of Cypress but returned a verdict of $4,000 for plaintiff and against DuPont. From the judgment on that verdict, DuPont appeals.

DuPont was sued as the manufacturer of Ammate X, a weed and brush killer, sold by Cypress, a dealer, to the Drainage District for use along its drainage ditches. Plaintiff's claim was that he had lost, by reason of 'nitrate and nitrite poisoning from eating willow leaves' sprayed with Ammate X, eleven registered Hereford cows, one heifer and nineteen aborted calves and that he had incurred certain expenses incident to such loss. The alleged negligence of DuPont, as submitted in plaintiff's verdict-directing instruction 1, was (in substance) and mislabeling of Ammate X as 'not hazardous to livestock' although (so plaintiff asserts) 'Ammate X when applied to trees and vegetation is an inherently and latently dangerous chemical in that it causes the trees and plants to produce an amount of nitrate and nitrite, which when eaten by livestock, may cause death and damage.' DuPont's insistence that plaintiff did not make a submissible case necessitates a factual review, which we undertake with this prior emphasis upon the trite but basic principle that, in determination of this issue, we must consider the evidence in the light most favorable to plaintiff, must accord to him the benefit of all supporting inferences fairly and reasonably deductible from the evidence, and must disregard defendant's evidence except insofar as it may aid plaintiff's case. Daniels v. Smith, Mo., 323 S.W.2d 705, 706(2); Hildreth v. Key, Mo.App., 341 S.W.2d 601 604(2); Anderson v. Welty, Mo.App., 334 S.W.2d 132, 134(2).

In June 1958, plaintiff, who lived in Sikeston, was pasturing two herds of Hereford cattle in nearby New Madrid County. One herd of twenty-six cows was on what plaintiff referred to as (and we hereinafter call) 'the home place' on the east side of a north-and-south drainage ditch maintained by the Drainage District. The other herd of forty-four cows and one bull was on what is known as (and hereinafter called) 'the Barnett farm' on the west side of the same drainage ditch opposite the home place. In that area, the levee is on the east side of the drainage ditch; and, with a fenced north-and-south road running along the top of the levee, plaintiff's herd on the home place could not reach the drainage ditch. The herd on the Barnett farm had access to the drainage ditch through a gap in the fence along the west side of the ditch right of way, usually watered in the drainage ditch, and frequently stood under the young willows at the water's edge. The Drainage District had given permission to plaintiff and other landowners along the ditch to run cattle on the ditch right of way--'it helped keep down vegetation.'

As a part of the continuing program of the Drainage District to prevent encroachment upon and obstruction of the drainage ditch by luxuriant growth along the banks, employees of the Drainage District under the supervision of Ollie Delaney sprayed along the west bank of the ditch for a distance of 12.8 miles during the period from the latter part of May to the first part of July 1958. This sprayed segment of the ditch included about .75 mile contiguous to the Barnett farm, where the west bank had 'a narrow ledge' of young willows at the water's edge 'all along it.' In this spraying operation, the Drainage District used Ammate X, a granular substance, put into solution according to the directions on the sack and sprayed from a boat which moved down the drainage ditch. The result was 'almost a complete kill of the willows.'

While employees of the Drainage District were spraying the bank contiguous to the Barnett farm during 'the latter part of June,' plaintiff asked supervisor Delaney 'if I (plaintiff) ought to move the cattle out' and 'if it would be harmful to them,' to which Delaney gave definite negative answers and the further assurance that 'we settled on buying the Ammate X' because the Drainage District 'wanted to buy something so the boys wouldn't have to take their cattle out of the pasture.' Delaney specifically testified that he had relied upon the statement printed on each bag that Ammate X, 'when used in accordance with directions, is not hazardous to livestock.' About July 15, 1958, and thus about two and one-half weeks after that section of the drainage ditch had been sprayed, plaintiff found a dead cow in his pasture on the Barnett farm. He then 'thought that lightning had hit it.' When, on July 23, plaintiff saw another dead cow and a sick cow on the Barnett farm, Dr. F. A. Stepp, a veterinarian at Sikeston, was called to the farm. The dead cow was badly decomposed. With respect to the sick cow, Dr. Stepp made a 'tentative diagnosis' of 'beginning pneumonia * * * associated with a pasteurella infection' sometimes called 'shipping fever,' treated the cow for that condition, and took a blood sample which upon subsequent microscopic examination disclosed no evidence of anthrax or anaplasmosis. That sick cow was much better the next day and apparently recovered. None of the other cattle 'showed any indication of being ill' on July 23.

However, when Dr. Stepp and his veterinarian partner, Dr. John R. Adams, were called to the Barnett farm the following day, July 24, they found three dead cows 'in and around the (drainage) ditch'; and, in an autopsy on one of those cows, the veterinarians noted that 'her rumen content was speckled all through with * * * dark brown willow leaves,' identical in appearance with the dead leaves on the sprayed willows along the drainage ditch. Dr. Stepp made a 'tentative diagnosis of poisoning by a cause at that time unknown to me because the other diseases that might hve killed the animal in my own mind had been ruled out'; and, not knowing what had been sprayed on the willows but suspecting that arsenic had been used, he preserved a sample of the contents of the rumen and reticulum (two of the cow's fore stomachs), which plaintiff delivered to Dr. G. E. Brown, head of the chemistry department at Southeast Missouri State College in Cape Girardeau. Dr. Brown's test of this sample for arsenic was negative. No other test was requested or made.

Four more cows died before (as plaintiff put it) 'we decided what the trouble was' and moved the reminder of the herd from the drainage ditch right of way 'sometime in August.' Another cow died the next day but there were no more deaths in the period of about one month during which the cattle were excluded from the ditch right of way. Being unable to obtain 'any definite answers on how long I (plaintiff) should keep them off, that the leaves might still be poisonous' and needing additional pasture at that time of year, plaintiff turned his herd back into the ditch right of way about September 17. Two days later another cow died. Dr. Stepp was called promptly and did a routine autopsy which disclosed that 'there was a large amount' of willow leaves in the rumen, reticulum and omasum, the three fore stomachs ahead of the abomasum, the true stomach. The quantity of willow leaves found in this cow 'was similar' to that found in the dead cow theretofore autopsied on July 24. Predicated on 'everything I had seen in that area in all the trips I made,' Dr. Stepp made a 'tentative diagnosis' that the cause of death of the cow autopsied on September 19 was 'nitrate and nitrite poisoning from eating willow leaves, subject to a chemical analysis.'

Within five or six hours plaintiff delivered a sample of the stomach contents of this cow to Prof. A. L. Caskey, a chemist at the State College in Cape Girardeau, who on September 20 made a qualitative and semiquantitative test, known as 'the brown ring test,' for nitrates. This test showed 'a very appreciable amount of nitrate' with concentration of 'something like 150 parts per million, * * * plus or minus 20 or 30 parts per million.' The tested sample contained 'an appreciable amount of willow leaves' estimated by Prof. Caskey as 'in the order of ten per cent.' Dr. Brown, who observed the test, confirmed the finding of 'a considerable amount' of nitrates and also stated that the concentration of dead willow leaves in that sample was about the same as in the sample taken from the cow autopsied on July 24. As DuPont's counsel here emphasize, none of plaintiff's witnesses testified as to the quantity of nitrates which would constitute a lethal dose for a cow. However, Dr. Brown, who operated a 290-acre farm in Lewis County, Missouri, had had previous experience with nitrate poisoning of cattle and knew 'considerable about it.' Although he had lost no cattle by nitrate poisoning, he knew others who had; and, in the course of twenty-one years as a professor at Culver-Stockton College before coming to the State College in Cape Girardeau, he had run nitrate tests on silage which, when eaten by cattle, had resulted in death. According to Dr. Brown, the intensity of the concentration of nitrates...

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