S-Creek Ranch, Inc. v. Monier & Co.
| Citation | 509 P.2d 777 |
| Decision Date | 07 May 1973 |
| Docket Number | S-CREEK,No. 4179,4179 |
| Parties | 12 UCC Rep.Serv. 820 RANCH, INC., a corporation, Appellant (Plaintiff below), v. MONIER & COMPANY et al., Appellees (Defendants below). |
| Court | United States State Supreme Court of Wyoming |
J. T. Langdon, Worland, William H. Sherwood, Oxford, Neb., for appellant.
Harold Joffe, Worland, for Monier & Co.
Paul B. Godfrey, Cheyenne, for Rome Hill Ranch, Inc., Everette Wyman and Richard Redland.
Before PARKER, C. J., and McEWAN, GUTHRIE and McINTYRE, JJ.
Appellant, plaintiff below, asserted its claim against appellees, defendants below, based upon an alleged breach of warranty and the unfitness of certain sheep for the purpose for which it purchased them. The parties will be described in this opinion as they appeared in the district court. Defendant Monier, by way of answer, denied the contentions of the plaintiff and asserted that any losses were resultant from plaintiff's negligence, and that it had failed to mitigate damages, and further that Monier was acting only as an agent of the remaining defendants. By cross-complaint against defendant Rome Hill, Monier claimed for any loss it might suffer by reason of any judgment against it. Defendants Rome Hill, Wyman, and Redland denied the contentions of the plaintiff, asserted its negligence, denied any warranty, and raised the question of failure to give proper notice of the breach to the defendants and to cover, by substitution of animals (§§ 34-2-712 and 34-2-715, W.S.1957, 1971 Cum.Supp.); and by cross-complaint against defendant Monier asserted their entitlement to recover from Monier any judgment against them as a result of this suit.
The matter was tried to the court below and, based upon findings of fact and conclusions of law, judgment was entered in favor of defendants from which judgment plaintiff appeals.
Plaintiff, a Nebraska corporation owned by Elwin E. Moriarity and Eldon Thulin, decided to purchase a number of older pregnant ewes to place upon its land for the purpose of getting a lamb crop and thereafter to sell these ewes, except for a small number which might be retained for the raising of additional lambs. It obtained the services of Charles Gleason, an experienced sheep man, to locate and to help in the selection of a desirable band of sheep. Moriarity and Thulin accompanied Gleason to Worland after Huber, an agent of Monier, had advised them of the availability of certain sheep of that class in the area. Monier & Company acts as a livestock commission firm advertising and offering sheep for sale. After their arrival in Worland on March 22, 1970, they were introduced to the defendant Redland. (There is some dispute as to whether Wyman was present at the first meeting, but this is not material.) After some conversation, Gleason, Moriarity Upon their arrival there were seven dead aborted lambs and three dead ewes, but plaintiff thought nothing of this, attributing it to the strain and stress of shipping and handling. Monier's representative had advised them of the danger of shipping these sheep by rail and suggested they be trucked. They were removed from the cars at Grand Island and taken by truck some 30 miles to Wolbach, Nebraska, where the farm of plaintiff was located. Because of continued abortions, Moriarity became concerned and called Gleason, who on April 3 took two aborted fetuses to North Platte to a University of Nebraska experimental station for examination. No diagnosis of vibriosis was made as a result of this examination. However, upon the advice of Gleason-apparently obtained from a veterinarian-plaintiff fed the sheep certain feed with Vitamin A and other vitamins, but because he became suspicious the entire band of sheep was vaccinated for vibriosis on April 7. The loss continued, however, and on April 12 four aborted fetuses were taken to Dr. DeBrie, a veterinarian in Kearney, who from his examination suspected the presence of vibriosis and made a tentative diagnosis thereof, but lacking laboratory facilities transmitted the fetuses to Dr. Grace at the University of Nebraska at Lincoln, who found after a laboratory examination that these four fetuses were infected with vibriosis, which was the first positive evidence of such disease.
Thulin, Huber, and Redland left the hotel to inspect two different bands of sheep a few miles east of Worland, both of which bands contained older pregnant ewes and younger ewes. They were satisfied with the sheep in both bands, although the asking price of $45, which included the younger ewes, was in excess of what they could pay. After some negotiations, the parites agreed upon a purchase price of $33 per head for the older pregnant ewes up to 1800 head. It developed that there was not a sufficient number of this class of sheep in the two bands inspected and they were told of the so-called 'Holly Band,' which was being held on a farm south of Worland where they went to look at additional sheep. After an inspection by Gleason, during which he sorted out approximately 50 head, it was agreed that sheep from this third band would be taken to fill out the number. All of the sheep were to be shipped the next day but the weather conditions made it impossible to load them until March 26, when they were placed upon railroad cars and shipped to Grand Island. All but one of the cars reached Grand Island on March 27 but because of a hot box the sheep from one car were unloaded and fed at Alliance, Nebraska, and reloaded upon two single-deck cars, arriving in Grand Island on March 28. The sheep were billed to the plaintiff, who paid the freight therefor. Prior to their loading they were inspected by both Dr. Asay, who executed a general health certificate, and a brand inspector.
This so-called 'abortion storm' continued until May 18, and plaintiff only raised 277 lambs for market, although in addition thereto it lost 35 from overfeeding and other causes. There was also a substantial loss of ewes.
The sheep remaining in the three bands in Wyoming showed no evidence of any infection from vibriosis. There is further considerable evidence from which a trial court might have concluded that the sheep were negligently and carelessly handled after their arrival in Nebraska, that the operation was not conducted in a good and husbandlike manner, and that the ewes suffered considerable weight loss and deterioration of physical condition, which is not a necessary consequence of vibriosis.
There is considerable expert testimony by veterinarians in this case. It would appear without any serious dispute that a definitive diagnosis of vibriosis is not possible without a proper culture and examination and that ewes usually do not show any affirmative signs thereof. Vibriosis is caused by a bacterial organism which affects and causes an infection of the uterus of the pregnant ewe. This acts primarily on the placenta, interfering with the nutrition to the offspring.
It is oftimes resultant in death of the fetus, and if born the lamb may well be weak. There is no accepted treatment for this disease after the beginning of the so-called 'abortion storm.' Vaccination is effective only if done before infection. However, although there is no recognized treatment, it was agreed a proper procedure would be that the aborted fetus should be immediately removed from the area of the sheep, or more properly buried directly at that point, and that the ewes which have aborted should be separated from the other sheep at that time. That was not done in this case.
This disease is passed by ingestion and may be spread from the urine or fecal droppings of the sheep and may definitely be transmitted by the licking of an aborted fetus, which is a natural reaction of a pregnant ewe.
As gleaned from the testimony of the experts, the period of incubation of this disease is anywhere from 5 to 21 days with apparently an approximate general average of 14 days, and one of defendants' experts defined 'period of incubation' to be the time when the bacterial organisms have become large enough in number to create a problem, which inferentially must be abortion. There is also considerable testimony that stress and improper care of sheep will make them less resistant to this or any disease and that the loss of ewes exceeded that which might normally be expected in an epidemic of this character. It will be observed that in a great many areas there is no real conflict of evidence but the possible inferences sharply conflict.
Although appellant states as a general proposition that the question is who should bear the loss occasioned by this disease, it lists some ten so-called collateral issues upon which this contention is based, some of which will not be mentioned herein because they were not considered necessary or material to disposition, although they have been considered.
In seeking to recover upon an implied warranty the burden is upon the plaintiff to prove that these sheep were suffering from vibriosis at the time the risk of loss had passed to it. There is no question raised by either party nor is any other rule urged, and the trial court proceeded upon that theory. The judgment for the defendants herein is partially based upon Conclusion of Law No. 1, which is as follows:
'That the Plaintiff has failed to establish the existence of vibriosis at the time of the sale to the exclusion of any other cause or causes of disease.'
This conclusion is based upon Finding No. 4, which was that the sale of the sheep was totally and fully concluded on March 22, 1970. Plaintiff, however, claims that the risk of loss did not pass to it until the sheep were delivered in Grand Island. This matter requires our disposal because it is the very basis of this suit.
The above finding and conclusion are based upon the complaint of the plaintiff herein wherein it states:
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