Rozansky Feed Co., Inc. v. Monsanto Co., KCD
| Decision Date | 02 April 1979 |
| Docket Number | No. KCD,KCD |
| Citation | 579 S.W.2d 810 |
| Parties | ROZANSKY FEED COMPANY, INC., Appellant, v. MONSANTO COMPANY and General Host Corporation, Respondents. 29822. |
| Court | Missouri Court of Appeals |
Ernest H. Fremont, Jr., Wm. Dirk Vandever, Popham, Conway, Sweeny, Fremont & Bundschu, Kansas City, for appellant.
Lyman Field of Field, Gentry, Benjamin & Robertson, Kansas City, for respondent Monsanto Co.
J. Eugene Balloun and L. Franklin Taylor of Payne & Jones, Olathe, Kan., David R. Frensley of Ryder, Skeer, Rose & Frensley, Kansas City, for respondent General Host Corp.
Before SHANGLER, P. J., and SWOFFORD, C. J., and WASSERSTROM, J.
This is an action for damages arising from the sale, distribution and use of a chemical substance, polychlorinated biphenyls, known under the trade name of "Therminol" and referred to here as PCB. The court below dismissed this Missouri action upon the doctrine of Forum non conveniens and this appeal followed. The scope of appellate review, therefore, is strictly limited to a determination of whether or not by so acting the trial court abused its discretion. State ex rel. Chicago, Rock Island and Pacific Railroad Company v. Riederer, 454 S.W.2d 36 (Mo. banc 1970); Elliott v. Johnston, 365 Mo. 881, 292 S.W.2d 589 (1956); Loftus v. Lee, 308 S.W.2d 654 (Mo.1958). The facts bearing upon this review, as pleaded in Plaintiff's Second Amended Petition, are substantially undisputed.
Plaintiff, Rozansky Feed Company, Inc., is a New Jersey corporation and has its principal place of business in that state. It manufactures a dried bakery product referred to in the record as "wafer meal", which was sold to grain mills in the east, including a pair of grain mill cooperatives in New York, Agway, Inc. and Inter-County Farmers Cooperative Association, Inc. These mills used Rozansky's wafer meal to manufacture poultry feed. Agway also sold this feed to the Jurgielewicz Duck Farms in New York, where it was fed to its ducks. This firm in turn sold the duck by-products (entrails, beaks, etc.) to the Bethlehem Mink Farm, Inc. and Jubilee Food Supply, Inc. and other mink farmers in the east where the mink were fed this by-product.
Defendant Monsanto corporation is incorporated in Delaware with its principal place of business in St. Louis, Missouri, where it is engaged in the manufacture of various types of chemicals which it distributes throughout the United States, including PCB.
Defendant General Host Corporation is a New York corporation and is engaged in the manufacture and sale of baking products throughout the United States, including Jackson County, Missouri. In 1970 and 1971, Monsanto sold PCB to the Bond Bread company in Brooklyn, New York, a division of the General Baking Company, which was later acquired by defendant General Host. PCB was used by Bond Bread to conduct heat from its boilers to deep fat fryers used to cook doughnuts. Bond Bread sold its waste bakery products to plaintiff Rozansky, and such products were then used by plaintiff to manufacture its wafer meal for sale to the mills for use in the manufacture of poultry feed.
On or before January 1, 1970, Monsanto learned that PCB was toxic to all forms of human and animal life and subsequently Monsanto announced that it was going to discontinue the production and distribution of PCB. However, it is alleged that, conspiring with General Host, it continued to sell PCB to Bond Bread for use in its New York plant, as above described. It is plaintiff's claim that sometime during 1970, a leak developed in the heat transfer system at Bond Bread so that the waste bakery products which it sold to plaintiff became contaminated as a result of which the wafer meal which the plaintiff sold to the mills, the poultry feed made by the mills and sold to its poultry farm customers, and the duck by-product sold by Jurgielewicz Duck Farms to mink farmers all became contaminated by toxic PCB.
The result of the use of this feed was that poultry became sterile or died, as did the mink, as a result of ingestion of duck by-product. Litigation resulted, all in eastern forums.
The mink farmers sued Jurgielewicz, Agway, Rozansky and Monsanto in the United States District Court in New Hampshire wherein the defendants filed various cross-claims and a judgment was entered in that case for $1,026,400.00 plus interest and costs in favor of the mink farmers.
Poultry and egg farmers, customers of Inter-County Farmers Cooperative Association, sued it in Sullivan County, New York. By means of third party practice, Inter-County brought in Rozansky, and Rozansky brought in Monsanto and General Host in that action.
Agway also sued Rozansky in New York for feed it was forced to destroy and Rozansky brought Monsanto and General Host, through the vehicle of third party practice, into that suit, pending in Ulster County, New York.
A procedural issue is raised by the appellant (Point III) that the trial court erred in dismissing the plaintiff's petition because it improperly granted leave "for renewal or reargument of defendants' motions to dismiss" where the original ruling was proper and based upon controlling decisions and no new facts or facts unknown or unavailable at the time of the original ruling were presented. This point should be disposed of at the outset of this decision and the record facts dispositive of it must be summarized.
It is noted at the outset that the forum wherein this suit was filed is the Sixteenth Judicial Circuit of Missouri, comprised of all of Jackson County, Missouri. It is a multiple judge circuit, now having seventeen separate divisions. At the time this suit was filed, it was assigned to Division No. 10, presided over by Judge Harry Hall. While that court had jurisdiction over the case, the defendants filed their separate motions to dismiss; plaintiff thereafter filed its second amended petition; the defendants renewed their motions to dismiss; and, thereafter, defendant General Host amended its motion to include the ground of Forum non conveniens. These motions were briefed and argued before Judge Hall and on December 14, 1976, he overruled General Host's amended motion to dismiss, and on December 15, 1976 he overruled its original motion to dismiss. On January 1, 1977, Judge Hall retired and left the Bench without making any order as to defendant Monsanto's motion to dismiss. The case was then assigned for further handling to Division No. 7, Judge Donald B. Clark. Thereupon, General Host filed its motion for a rehearing on its amended motion to dismiss and Monsanto was granted leave to file an amended motion to dismiss...
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