Poovey v. International Sugar Feed No. 2 Co.

• Decision Date: 12 May 1926
• Docket Number: 494.
• Citation: 133 S.E. 12,191 N.C. 722
• Parties: POOVEY v. INTERNATIONAL SUGAR FEED NO. 2 CO.
• Court: North Carolina Supreme Court

133 S.E. 12

191 N.C. 722

POOVEY v. INTERNATIONAL SUGAR FEED NO. 2 CO.

No. 494.

Supreme Court of North Carolina

May 12, 1926

Appeal from Superior Court, Catawba County; Lane, Judge.

Action by L. W. Poovey against the International Sugar Feed No. 2 Company. Judgment for plaintiff, and defendant appeals. Error.

Evidence of breach of warranty in sale of cattle feed held insufficient to be submitted to jury.

The plaintiff is the owner of a herd of dairy cattle at Hickory N. C., and the defendant is engaged in the business of manufacturing and selling dairy feeds. The plaintiff had been purchasing this same brand of feed from the defendant for about 18 months prior to December, 1925, and had been feeding it to his cattle. He ordered a car of feed from defendant which arrived at Hickory on or about the 5th day of December 1924. He testified that at the time of the arrival the "appearance of the feed did not appear like the stuff I had been getting. The bags were dirty and dusty. I have never had a shipment of that appearance before. The bags had been cleaned, and seemed to leave a little grease on the side of the car, but was all dusty and sifted out all over the car."

The plaintiff accepted the feed, paid the draft, and took it out to his dairy barn. He then wrote a letter to the defendant sending a sample of the feed, and the defendant, in reply thereto, stated that its chemist had examined the feed, and there was nothing wrong with it, but that they had made a change in the feed by changing the formula in one ingredient, and had substituted therefor another which was of greater feed value, and that he could go ahead and use it. The plaintiff began feeding from this shipment to his cows at the dry barn, and also fed them some "wheat straw and some roughness." The feed was given to all of his cattle.

Plaintiff testified as follows:

"I began feeding it to my cattle just as soon as I heard from this company. I haven't the letter. I suppose in about five days-that would be about the 15th or 16th of December when I began feeding it. It was some time the last of December or the 1st of January when I noticed the cattle showing symptoms of sickness."

Dr. E. J. McCoy, veterinary surgeon, was called in to treat plaintiff's cattle some time in January, 1925, and diagnosed the disease as ptomaine poisoning. He further testified that:

"We usually notice the symptoms develop rapidly, while I think the time would depend on the amount of poisoning. It is generally violent in a little while after we notice the symptoms. I have never seen ptomaine poisoning demoralize the nerves that control the diaphram before; I can't account for it any other way. I can't say whether it was that or not. It was unusual following that trouble. I never knew of that particular symptom in a case of ptomaine. Ptomaine is brought on by some poison either in food or drink, but it is usually in the eating."

Two of plaintiff's cows died, and some of the others became sick, and this suit was brought to recover for the value of the cows that died.

The agent of the defendant, at the time of the death of the cows, took up the remaining feed of the shipment and stored it in the city market of Hickory and requested the department of agriculture of North Carolina to have the feed inspector for the state inspect it. The inspector for the state testified as follows:

"I made a physical examination of the bags, and found it in very good condition. It was wholesome and sweet, no moisture or mould to it at all that I could detect. Thereafter the feed was subjected to a chemical analysis by the feed chemist in the department of agriculture of North Carolina, and the analysis of the feed showed that there was no poisonous or deleterious matter in it, and that the substances actually fund by chemical analysis were entirely all right and not injurious to cattle. The analysis agreed with the analysis on the tag attached to the bag by the manufacturer."

There was evidence tending to show that the neighbors of the plaintiff had purchased some of this feed and that their cows had become sick, though none died. There was also evidence to show that other neighbors had purchased feed from this particular car and fed it to their cattle with no injurious effects whatever.

There was a verdict in favor of plaintiff and judgment thereon, from which the defendant appealed.

Thos. P. Pruitt, Self & Bagby, and W. L. Marshall, all of Hickory, for appellant.

E. B. Cline, of Hickory, for appellee.

BROGDEN J.

The merit of this case involves two questions: (1) Is there an implied warranty in the sale of feed for cattle and the nature thereof? (2) Is there sufficient evidence of a breach thereof to be submitted to a jury?

"The authorities are numerous that there is an implied warranty that runs with the sale of food for human consumption, that it is fit for food and is not dangerous and deleterious." Ward v. Sea Food Co., 171 N.C. 33, 87 S.E. 958.

However, it has been held that this principle does not apply to sales of feed for cattle. For instance, in Lukens v. Freiund, 27 Kan. 664, 41 Am. Rep. 429, the late Justice Brewer reasoned thus:

"Upon what ground is an implied warranty rested in the case of the sale of provisions, which does not exist in the case of a sale of other articles? Obviously it is not upon any property grounds, or because thereby the estate of either party is affected; but for reasons of public policy, for the preservation of life and health, the law deems it wise that he who engages in the business of selling provisions for domestic use should himself examine and know their fitness for such use, and be liable for a lack of such knowledge. *** Regard for human life compels this. *** If the preservation of human life and health be, as we think it is, the foundation of this exception, then it should not be extended to cases in which human life and health are in no wise endangered."

The Lukens Case grew out of the fact that a farmer bought a sack of bran. In some way two copper clasps had gotten in the sack of bran. One of plaintiff's cows swallowed the clasps, which poisoned and killed her.

The identical principle is held to be the law in Dulaney et al. v. Jones, 100 Miss. 835, 57 So. 225:

"It is argued with much ability, by the appellees, that an implied warranty of soundness arises only in cases where the food sold is for human consumption. After a careful consideration of the question, our conclusion is that, according to the weight of authority in this country, there is an implied warranty of soundness in the case of the sale of provisions intended for human food, but with food for other purposes there is no implied warranty of soundness. This is put upon the grounds of public policy, the controlling reason being the regard for human life and for human health."

The facts in the Dulaney Case, supra, were that the plaintiff sold certain feed stuff for the defendant's mules, and that said feed stuff...