Sanders v. Hartville Milling Co.

• Citation: 14 S.W.3d 188
• Parties: (Mo.App. S.D. 2000) Thomas Sanders and Helen Sanders, Plaintiffs/Respondents and Cross-Appelants v. Hartville Milling Company, Defendant/Appellant and Cross-Respondent and Cargill-Nutrena, a division of Cargill, Inc., Respondent. 22445 & 22446 0
• Decision Date: 09 February 2000
• Court: Court of Appeal of Missouri (US)

14 S.W.3d 188 (Mo.App. S.D. 2000)

Thomas Sanders and Helen Sanders, Plaintiffs/Respondents and Cross-Appelants v. Hartville Milling Company, Defendant/Appellant and Cross-Respondent and Cargill-Nutrena, a division of Cargill, Inc., Respondent.

22445 & 22446

Missouri Court of Appeals Southern District

02/09/2000

Appeal From: Circuit Court of Ozark County, Hon. John G. Moody

Counsel for Appellant: Timothy E. Gammon

Counsel for Respondent: D. Patrick Sweeney, Deborah K. Dodge, J. Kent Lowry and Sherry L. Doctorian

Opinion Summary: None

Crow, P.J., and Shrum, J., concur

John E. Parrish, Judge

This is an appeal by Hartville Milling Company (Hartville) and a cross-appeal by Thomas Sanders and Helen Sanders (collectively referred to as plaintiffs). For briefing purposes, plaintiffs are designated appellants and Hartville and Cargill-Nutrena (Cargill) are designated respondents. See Rule 84.04(k).

Judgment was entered in accordance with a jury verdict for plaintiffs against Hartville on claims for product liability for defective dairy cattle feed (Count I) and negligence (Count IV). Judgment was entered for Hartville, pursuant to its motion for summary judgment, on nine of the eleven claims in plaintiffs' eleven-count petition. Judgment was entered for Cargill pursuant to its motion for summary judgment on all eleven claims.¹

Hartville appeals the parts of the judgment in favor of plaintiffs. Plaintiffs appeal the parts of the judgment in favor of Hartville and Cargill. Plaintiffs state, however, that their appeal is "provisional"; that it will be pursued only if "the judgment based on the jury verdict" is reversed. The judgment is reversed as to the award of prejudgment interest. It is affirmed in all other respects and remanded with directions.Facts

Plaintiffs had operated a Holstein dairy operation in Wright County, Missouri, since 1976. In 1987 they had a management sale and disposed of their dairy herd. Mr. Sanders explained, "In '87 we sold the herd, they sold it, extremely well, we had good records, they sold from two to four hundred dollars higher than cows around there had been selling. The top cow brought sixteen hundred and fifty dollars."

In 1990 plaintiffs replaced their dairy herd. They began having problems. They experienced problems with their breeding program and with milk production. The newly acquired cattle developed foot problems and had poor appearances.

Plaintiffs had been feeding forage, wet brewers grain and a dairy ration they obtained from Hartville. Mr. Sanders contacted Hartville. He sought explanations for his cattle's decreased milk production. In the past Hartville had helped with nutrition problems by changing the formulation of its dairy ration. Hartville sent personnel who worked for Cargill, Inc., to discuss the problems plaintiffs were having -- Hartville purchased feed products from Cargill. Phil Short and Curtis Hill contacted plaintiffs. Phil Short was a territory manager for Cargill. Curtis Hill was a sales representative for Cargill. Mr. Short often tested plaintiffs' forage as a nutrition representative of Hartville and made recommendations for formulation of the dairy ration Hartville provided plaintiffs. After those visits, at Hartville's suggestion, plaintiffs stopped feeding brewers grain to their cattle.² However, the condition of plaintiffs' cattle continued to deteriorate.

In 1991 plaintiffs decided to have a dispersal sale in order to obtain funds with which to pay feed bills and acquire a new herd of registered Holstein cattle. The herd was sold in October 1991. There had been a dramatic decrease in the herd's milk production before the sale. There had also been reproduction problems and symptoms of disease.

Plaintiffs' herd veterinarian during this period was Dr. Michael Gardner. He was herd veterinarian from 1990 to 1992. Dr. Gardner vaccinated the cattle for a variety of diseases, tested for parasites and fesque fungus, and did blood tests to attempt to find out what was wrong with the cattle. Dr. Gardner was unable to determine what was wrong. His conclusion was that the problem was nutritional. Plaintiffs sold 350 head of cattle at the 1991 dispersal sale. Plaintiffs expected to get $1,100 per head for the cattle. However, the milking cattle sold for between $575 and $800 per head, between $200 and $300 per head less than plaintiffs had expected. Mr. Sanders stated that the reasons for the low sales prices were the low milk production reflected on cattle productivity records and their appearance. He described the cattle's appearance and explained why plaintiffs needed to proceed with the sale in spite of the deteriorating condition of the cattle:

[T]hese cows took on a parasite appearance, they looked like they was lousy, they looked like they was wormy, they dried up in their milk, the hair turned up on them and they was -- I never seen any, you know, I couldn't imagine what would be the matter with these cows and we had already contracted these registered cows and by the time we got these, had to sell these cows, they looked terrible and then, you know, when they went to sell them, they just didn't sell good.

The cows plaintiffs had contracted to buy were from three different farms. They purchased 85 registered Holstein cattle after the dispersal sale. Fifty of the cattle were purchased from the Rob-Thom farm. Mr. Sanders was asked about the reputation of the Rob-Thom farm. He answered, "They're the top producing herd in Missouri." He explained that the Rob-Thom farm had "one of the better reputations in the whole world for Holstein cattle"; that "they export cattle all over the world."

In addition to registered Holstein cattle, plaintiffs bought other grade Holsteins, i.e., cattle that were not registered.³ Plaintiffs also bought beef cattle for their farm.

A few months after plaintiffs bought the cattle, the dairy cattle looked like "anorexic skeletons." They experienced reproduction problems, eye cancers and pinkeye. Mr. Sanders testified that he had never before seen anything like the problems he experienced; that before 1990 he never had those problems. Mr. Sanders explained what occurred after plaintiffs got the 85 registered cattle:

[W]e got this bunch, this herd of registered cows and we got them put together and by the time we had owned them, well, we started, we bought them in the last of November and then in November, last week of October, first of November, and then these, those cows there come the 7th day of November, I believe is what that says and these cows were in good condition and I had several people come and look at them. I know as soon as we got them home the dairy specialist from the county come and looked at them and was real, you know, he was really proud, he was like we were, we were proud of these cows and he was proud for us because he wanted to work with these cows, watch them produce and by the first of March, these cows looked like they was anorexic skeletons.

Mr. Sanders was asked about plaintiffs' beef cattle:

Q. So you had some beef cattle --

A. Yes.

Q. -- on the place. Did you feed the beef cattle Hartville Mill product?

A. Yes, we did.

Q. Did you have any problems with the beef cattle?

A. Yes, we did.

Q. What were the problems with the beef cattle?

A. They died. They died from just first one thing and then another. We couldn't put our finger on -- we would just go to the pasture and find them dead. We would go to the pasture and find them sick and we just couldn't, you know, we tried that for about three years and by the end of the third year we went from 90 cows to 60-some cows, we lost about 30. I think we lost 30 head of beef cows in three years.

Hartville and Cargill's territory manager, Phil Short, continued telling plaintiffs that the problems they were having with their cattle were nutrition problems. Plaintiffs talked to Dr. Gardner about the problem. Mr. Sanders also sought advice from University of Missouri extension agent Ted Probert, the Wright County dairy specialist. Mr. Probert brought Dr. David Hardin⁴ and Dr. Jennifer Garrett to plaintiffs' farm. Mr. Sanders explained, "Dr. Harden is a vet, I'm not sure what Dr. Garrett is, she was supposed to have been in nutrition."

Dr. Hardin and Dr. Garrett looked at plaintiffs' herd. They believed there was a nutrition problem. They told plaintiffs to have Mr. Probert make a different ration. Plaintiffs tried the ration Mr. Probert formulated. Mr. Sanders observed, "[W]e tried some of it and it didn't help the cows at all, they just continued, they went on down and went down worse and their body condition kept getting worse on them." The feed for the Probert ration was bought from Hartville just as the other rations had been.

Dr. Gardner testified that he had been the treating veterinarian for plaintiffs' herd. He first became the treating veterinarian for the herd around 1979. He was the treating veterinarian in 1990 to 1992. During that time he worked with other veterinarians and nutritionists to try to determine the cause of the problems plaintiffs' herd was experiencing. At different times during that period, he looked at the possibility that the problem was a nutrition problem.

Dr. Gardner was asked what plaintiffs' herd was like from 1979 to 1990. He explained that it was one of the top herds in Wright County. Dr. Gardner explained that it was desirable for dairy cows to have one calf a year; that this kept milk production up. He said plaintiffs' herd had good production. It had a good conception rate. Cows were breeding back. They were healthy. They looked good. His opinion was that plaintiffs were good managers.

During the period 1990 to 1992 circumstances changed. Dr. Gardner testified that problems occurred that he was unable to correct. He explained:

I tried everything that I knew to try. My blood tests for disease that I didn't think were in the area, I blood tested for anaplasmosis, I blood tested for, I believe,...