Schaeffer v. Ciba Geigy Corp., KCD

• Decision Date: 03 July 1978
• Docket Number: No. KCD,KCD
• Citation: Schaeffer v. Ciba Geigy Corp., 568 S.W.2d 580 (Mo. App. 1978)
• Parties: Norman SCHAEFFER, Appellant, v. CIBA GEIGY CORPORATION, Respondent. 29323.
• Court: Missouri Court of Appeals

Page 580

568 S.W.2d 580

Norman SCHAEFFER, Appellant, v. CIBA GEIGY CORPORATION, Respondent.

No. KCD 29323.

Missouri Court of Appeals,Kansas City District.

July 3, 1978.

Rupert G. Usrey, Oregon, for appellant.

Patrick McLarney, Gary R. Long, Shook, Hardy & Bacon, Kansas City, for respondent.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

TURNAGE, Judge.

Norman Schaeffer brought suit against Ciba Geigy for alleged failure of the selective herbicide Aatrex 80W to control weeds in his corn. Schaeffer appeals following a jury verdict for Ciba Geigy claiming the trial court erred when it excluded Ciba Geigy's magazine and radio advertisements and when a newspaper article and demonstration of herbicide mixture was admitted. Affirmed.

It must first be noted this court would be fully justified to dismiss this appeal because because of the failure of Schaeffer's brief to comply with the rules. The transcript consists of two volumes containing 495 pages, yet the statement of facts contains only one paragraph consisting of two sentences which deal with the evidence. However, the points presented may be resolved on well settled principles of law. Nevertheless, counsel should not continue to presume the appellate courts will consider appeals in which the briefs fail to comply with the rules. Numerous appeals have been dismissed for failure of the brief to comply with the rules and this practice will not only continue but will accelerate.

Schaeffer alleged breach of warranty both express and implied together with a failure of the Aatrex supplied to him to comply with the chemical content listed on the label. Ciba filed an interrogatory long before trial in which it inquired as to Schaeffer's theory of recovery. The answer was the failure of the product to conform to the chemical composition contained on the label.

After Schaeffer's theory of recovery as stated in the interrogatory answer had been on file for some time, his counsel advised Ciba's counsel on the evening before trial he would seek to supplement his answer to broaden his theory to include breach of warranty. On the morning of trial Ciba's counsel objected to supplementing the answer or to any broadening of the issues because Ciba had already prepared to meet the theory that the product failed to conform to the chemical composition stated on the label. Ciba's counsel stated it was not prepared to produce the additional witnesses required to meet a breach of warranty theory. Schaeffer's counsel did not make a satisfactory explanation to the trial court for his failure to broaden the issues prior to the evening before trial. The court...