Purina Mills, Inc. v. Moak

• Decision Date: 19 December 1990
• Docket Number: No. 07-CA-59304,07-CA-59304
• Citation: 575 So.2d 993
• Parties: PURINA MILLS, INC. v. E.R. MOAK and Faye M. Moak d/b/a Moak's Dairy Farm.
• Court: Mississippi Supreme Court

Page 993

575 So.2d 993

PURINA MILLS, INC. v. E.R. MOAK and Faye M. Moak d/b/a Moak's Dairy Farm.

No. 07-CA-59304.

Supreme Court of Mississippi.

Dec. 19, 1990.

Rehearing Denied March 6, 1991.

Kenneth R. Dreher, Jerry L. Mills, Pyle Dreher Mills & Woods, Jackson, for appellant.

Daniel H. Fairly, Wells Wells Marble & Hurst, Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court:

This cause comes on appeal from the Circuit Court of Lincoln County, Mississippi, Joe N. Pigott presiding. At the conclusion of the trial the jury found that Purina Mills, Inc. (Purina) sold defective cow feed to the Moaks and awarded Moak's Dairy $110,000 in damages. Purina presents four assignments of error on appeal to this Court:

1) Whether the circuit court judge erred by denying Purina a continuance to remove this action to federal court when the judge determined that Farmers Milling Company was improperly joined as a defendant;

2) Whether the trial court erred in granting Jury Instruction P-9;

3) Whether the circuit court judge erred by allowing evidence of loss of cows which were not properly disclosed in Moak's Dairy's responses to Purina's interrogatories; and

4) Whether the verdict was against the overwhelming weight of the evidence due to inadequate proof of damages or improper application of the law of comparative negligence by the jury.

The Moaks had been using Purina feed for their dairy cattle since early 1985, purchasing approximately six tons per week from their supplier, Farmers Milling Company. On June 30, 1986, the Moaks received a load of Purina feed. A few days later Mr. Moak found magnets, which had been installed in five feed bins, covered with pellets. ¹ This indicated that there was metal in the feed. Purina and Farmers Milling Company picked up the feed, cleaned the magnets and delivered a new load. The Moaks again found the magnets covered with pellets from the new load of feed.

Though the Moaks were aware continued use of the contaminated feed was dangerous to their herd, they kept using Purina feed because Purina representatives assured them that the problem would be solved. During July, 1986, the Moaks checked the magnets daily and continued finding the magnets covered with Purina feed pellets. From June 30, 1986, to July 28, 1986, the Moaks received five loads of contaminated Purina feed from their supplier, Farmers Milling Company.

After July 28, 1986, the Moaks purchased Purina feed from a different dealer. The same problem occurred, only not as severe. In February, 1987, the Moaks terminated all use of Purina feed and purchased Nutrina feed from Farmers Milling Company. Since February the Moaks have had no further problems with metal in their feed pellets.

I.

WAS PURINA ENTITLED TO A CONTINUANCE TO REMOVE THIS ACTION TO FEDERAL COURT WHEN THE TRIAL COURT GRANTED A DIRECTED VERDICT TO FARMERS MILLING COMPANY?

At the conclusion of the Moaks' case-in-chief, the trial court granted Farmers Milling Company's motion for a directed verdict on grounds that the Moaks failed to put on any evidence showing that Farmers Milling "caused or contributed to the contamination of the feed or failed to use due care to prevent the contamination of the feed." Purina Mills then alleged fraudulent joinder because the Moaks had no intention of seeking recovery from Farmers Milling Company and moved for a continuance to remove the action to federal court. The trial court, finding that there was no abuse of discretion by the Moaks in joining Farmers Milling as a defendant, denied the motion.

Purina, being the party seeking removal, had the burden of proving fraudulent joinder to the trial judge. Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir.1990). We will not reverse the lower court's determination unless the trial judge abused his discretion in denying a continuance. Red Enterprises, Inc. v. Peashooter, Inc., 455 So.2d 793, 796 (Miss.1984); Bay Springs Forest Products, Inc. v. Wade, 435 So.2d 690, 692 (Miss.1983). Under our law if the Moaks had any possibility of recovery against Farmers Milling Company, then the trial court properly concluded that joinder was not fraudulent. Carriere, 893 F.2d at 100; Laughlin v. Prudential Ins. Co., 882 F.2d 187, 190 (5th Cir.1989) (applying Mississippi law); Moore v. Interstate Fire Ins. Co., 717 F.Supp. 1193, 1196 (S.D.Miss.1989).

While Purina correctly notes that our courts should not sanction devices intended to defeat removal, the court is not mandatorily required to decline from proceeding with the action. Sears, Roebuck & Co. v. Van Dolah, 188 Miss. 59, 194 So. 475, 478 (1940). We do encourage courts to refuse to proceed further when the plaintiff makes no attempt to prove the cause of action at trial and when the pleadings filed did not intend to attempt to prove, and could not have proved, the alleged cause of action. Sears, Roebuck, 194 So. at 478.

In this case the Moaks failed to put on any evidence to prove that Farmers Milling Company was responsible for the contamination of the feed. Purina, however, produced no evidence indicating that at the time the Moaks filed suit that they had no intention of proceeding against Farmers Milling Company, that the Moaks joined Farmers Milling Company in bad faith, or that the Moaks lacked a bona fide belief that it had a valid cause of action against Farmers Milling Company.

At the time the complaint was filed, the Moaks could have believed they had a cause of action for strict liability in tort against Farmers Milling Company, the retailer. See Hall v. Miss. Chemical Exp., Inc., 528 So.2d 796, 799 (Miss.1988) (citing Restatement (2d) Torts, Sec. 402A); Coca Cola Bottling Co., Inc. v. Reeves, 486 So.2d 374, 379 (Miss.1986). Moreover, Dr. Herman testified that he investigated Farmers Milling's system and facilities on their premises to determine whether Farmers Milling had the capabilities of manufacturing metal fragments inside the feed pellets. This suggests that at one time action against Farmers Milling Company was contemplated by the Moaks. Based on this evidence we find that the trial court did not abuse its discretion in denying the continuance and that this assignment of error has no merit.

II.

DID THE TRIAL COURT ERR IN GRANTING JURY INSTRUCTION P-9?

Purina objected to instruction P-9 alleging that the jury was provided no evidence from which it could determine damages. Instruction P-9 reads in pertinent part:

Should your verdict be for plaintiffs, E.R. Moak and Faye M. Moak, you may consider such of the following factor in determining the amount of damages to be awarded as may be shown by a preponderance of the evidence:

(1) The actual purchase price or cost of the feed purchased from Purina Mills, Inc.;

(2) Loss of milk production;

(3) Increased cull rate of the cows;

(4) Increased veterinary and herd health costs;

(5) The value of cows which died as a proximate result of the acts of Purina Mills, Inc., if any;

(6) The actual value of calves which died as a proximate result of the acts of Purina Mills, Inc., if any;

(7) The actual value of calves which had to be sold as a result of illness, disease or other ill effects proximately caused by the acts of Purina Mills, Inc. if any;

(8) Any future expenses related to loss of milk production, lost cows, lost calves or loss of future profits, if any, as a proximate result of acts of Purina Mills, Inc.

The trial court denied the objection finding that the testimony of Mr. Moak, Dr. Smith, and Dr. Herman provided a sufficient basis for the jury to determine the damages requested in the instruction.

Purina correctly notes that before the jury is instructed regarding a disputed fact, there must be some credible evidence in the record which would support the instruction. Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 37 (Miss.1989); Graves v. Graves, 531 So.2d 817, 821 (Miss.1988). However, this Court also recognizes the rule that where jury instructions read as a whole fairly--though not perfectly--instruct the jury on the applicable law, this Court will not reverse. Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 40 (Miss.1989); Middleton v. Evers, 515 So.2d 940, 942 (Miss.1987).

In this case we note that instruction P-9 furnishes a guide to the jury to be used by it in awarding damages. See Gerodetti v. Broadacres, Inc., 363 So.2d 265, 267 (Miss.1978). Though we would agree that there was no evidence by which the jury could determine an award of damages for some of the factors listed in instruction P-9, we find this defect to be harmless because instruction P-8 instructed the jury that damages, to be recoverable, must be shown with reasonable certainty both as to their nature and as to their cause.

Instruction P-8 states in pertinent part:

If the cause of the injury is reasonably certain, you may reasonably estimate the damages. Although the lack of a perfect measure does not preclude recovery, you must not guess or speculate. The plaintiffs must give you a reasonable basis on which to base your estimate of damages.

This instruction when read in conjunction with instruction P-9 instructs the jury not to determine any of the damages requested in instruction P-9 without proof of a reasonable basis upon which to base an estimate.

Reading the instructions as a whole, we find that the jury was adequately instructed. See Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 40 (Miss.1989); Detroit Marine Engineering v. McRee, 510 So.2d 462, 467 (Miss.1987). This assignment of error is without merit.

III.

DID THE TRIAL COURT ERR BY ALLOWING EVIDENCE OF LOSS OF COWS WHICH WERE NOT PROPERLY DISCLOSED IN MOAK'S DAIRY'S

RESPONSES TO PURINA MILLS, INC.'S INTERROGATORIES?

Purina contends that the trial court erred in allowing testimony which related to cows that had not been identified in the discovery responses because Moaks' responses allegedly led them to believe that only those...