Southern States Co-op. Inc. v. Doggett

• Decision Date: 18 June 1982
• Docket Number: 791209,Nos. 791160,s. 791160
• Citation: 223 Va. 650,292 S.E.2d 331
• Parties: , 29 A.L.R.4th 1033 SOUTHERN STATES COOPERATIVE INCORPORATED, et al. v. A. Dwight DOGGETT. Record
• Court: Virginia Supreme Court

Page 331

292 S.E.2d 331

223 Va. 650, 29 A.L.R.4th 1033

SOUTHERN STATES COOPERATIVE INCORPORATED, et al. v. A. Dwight DOGGETT.

Record Nos. 791160, 791209.

Supreme Court of Virginia.

June 18, 1982.

B. Thomas Reed, Norfolk, Rodham T. Delk, Jr., Smithfield (William M. Harris, Taylor, Gustin, Harris, Fears & Davis, Norfolk, Delk & Barlow, Smithfield, on briefs), for appellants.

Thomas L. Woodward, Jr., Suffolk, for appellee.

Before CARRICO, C. J., COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ., and HARRISON, Retired Justice.

COMPTON, Justice.

In this products liability suit brought on a warranty theory, the dispositive question is whether the evidence was sufficient to present a jury issue as to the defendants' liability.

In December of 1977, plaintiff A. Dwight Doggett purchased from defendant Farmers Service Company, located in Smithfield, a quantity of bagged cattle feed supplement known as "Pro-Blend 50," to be used in his commercial farming operation in Isle of Wight County. The Pro-Blend 50, a protein staple containing processed grain by-products as well as dicalcium phosphates, was manufactured by defendant Southern States Cooperative, Incorporated, at its plant in Richmond. On January 9, 1978, after the feed supplement had been consumed by plaintiff's cattle, 66 head died and a substantial number of additional head became violently ill from a poison sold under the trade name of "Thimet."

The poison, an organic phosphate, generically known as "phorate," was manufactured by "American Cyanamid," according to the evidence. Thimet is an extremely toxic compound having a strong and offensive odor, and is "widely used by farmers generally" as an insecticide and for rodent control.

In March of 1978, Doggett filed this suit against the retailer and manufacturer of Pro-Blend 50 seeking damages for the death and illness of the cattle. The plaintiff alleged that as the "direct result" of the poison being in the product, defendants had "breached the implied warranties of merchantability and fitness for the general and particular purposes for which plaintiff intended said cattle feed to be used."

Following a March 1979 trial, the jury found in favor of the plaintiff against both defendants in the amount of $24,135. The trial court, overruling defendants' post-trial motions, entered judgment on the verdict. We granted defendants appeals from the May 1979 final order.

According to settled, elementary rules of appellate procedure, we will recite the facts in the light most favorable to the plaintiff, who is before us armed with a jury verdict approved by the trial judge.

Preparation at the farm of the food given to plaintiff's cattle on Monday, January 9, began on the preceding Saturday, January 7. At the time, plaintiff's cattle were being fed a mixture of corn, Pro-Blend 50, and peanut vines.

After having fed the cattle on that Saturday, plaintiff's son, A. Dwight Doggett, Jr., a 30-year-old college graduate who had been a farmer for eight years, prepared for the Monday feeding. On Saturday, the son placed 3000 pounds of corn in the mixing tank of an empty portable feeding mill having a capacity of 6000 pounds. The corn, stored in large, enclosed metal corn bins located adjacent to plaintiff's house, was brought to the mill by an auger conveyor extending from the bin to the mill.

After loading the corn, the son moved the mill, using a tractor, to a position adjacent to the corn bins and in front of a small barn where the Pro-Blend 50 was stored. The feed supplement had been stowed by plaintiff in the same condition as received from the retailer. The Pro-Blend 50 was sold by Southern States in sealed, 100-pound bags made of woven "plastic" cloth, technically described by the bag manufacturer as "woven polypropylene ribbon," an oil-based product. The supplement in question was from a quantity picked up by the retailer in November and December 1977 from the manufacturer and, in turn, obtained by the plaintiff from the retailer during the latter month.

Standing outside the barn door with his feet on the ground, the son reached into the barn, opened two sealed bags of Pro-Blend 50, and manually poured the contents into the "rear auger" or rear "hopper" of the feed mill. He smelled no Thimet, although he was familiar with its odor. The empty bags were left on the barn floor along with other empty bags from prior feedings.

The son then pulled the feed mill to an open shelter located near the plaintiff's house where the mill remained until early the following Monday when the feeding process was resumed. According to the evidence, the mill was not "tampered with" from Saturday to Monday, and there was no indication "directly or indirectly that anybody had introduced anything in the feed mill" during that period.

Near 7:30 a. m. on Monday, the son moved the mill from the shelter to another barn located about one-half mile from plaintiff's house where peanut vines, baled on plaintiff's farm during the previous Fall, were stored. Using a conveyor belt, the son completed filling the mixing tank of the mill, using about 20 bales of vines. The components of the mill were mixed and about 80 percent of the mixture was placed by the son in a feeder located about one-half mile from the vine barn and one mile from plaintiff's home. The mixture was "augered" from the mixing tank directly into the feeder. After placing the remainder of the food into a second feeder, the son pulled the empty mill back to the corn bins where the Saturday procedure was repeated and the mill with a mixture of corn and supplement again was parked under the shelter.

During Monday afternoon, plaintiff noticed a number of cattle in distress and some dying. Doggett and his son immediately "[ran the cattle] all off the feeders and shut them away from any more feed." Plaintiff and those who worked on his farm, assisted by many local and state officials, then began an investigation to determine the cause of the death and illness of the animals.

The local veterinarian arrived "at dark." He found several cattle dead, several dying, and others that appeared to be normal. After treating the living animals, the veterinary performed an autopsy on one at the place where it died.

During the next week, samples of the corn, the Pro-Blend 50, the peanut vines, and the feed mixture were taken from various locations pertinent to the feeding process. Subsequent laboratory analysis and expert opinion revealed that the plaintiff's loss was caused by organic phosphate poisoning. Once the chemical agent causing the death and illness of the cattle was readily identified, the investigation focused on the source of the poison ingested by the cattle.

Chemical analysis of the samples taken from the two cattle feeders, from the main chamber of the feed mill, and from the hopper at the rear of the mill where the feed supplement was introduced, all revealed quantities of Thimet, or phorate. No Thimet was discovered in samples taken from the plaintiff's corn bins or the peanut vine barn. In addition, no poison was found in samples taken from unopened and unused bags of Pro-Blend 50 situated in the plaintiff's feed barn, or from the stock of the retailer and manufacturer at their respective business locations.

On Tuesday, January 10, a Virginia Department of Agriculture inspector, who was "a little allergic to Thimet," detected the poison's "pronounced" odor at both of the feeders. During the next day, when within ten feet of the feed mill, he also smelled Thimet. On the same day, the inspector examined a number of the empty Southern States bags that were on the floor of the feed barn and noticed the odor of Thimet in several of them.

On Monday, January 16, Herbert Jones, the County Agent for Isle of Wight, made one of his numerous trips to plaintiff's farm to assist in decontamination of the feed mill and to help in the effort to discover the source of the poison. He went to the feed storage barn and began examining the empty bags that were on the floor. While smelling inside one of the Southern States' bags, Jones noticed a "foreign odor ... not associated with the feed." Upon closer examination, he saw a small residue in the "ears" at the bottom of the bag. This bag was forwarded by Jones to a State laboratory for analysis.

The chemists who examined the residue testified that phorate was found concentrated at the rate of about one and one-half pounds of the poison per 100 pounds of mixture. Also found in the residue were materials consistent with a feed supplement. In addition, a chemist determined the residue included "fragments of straw, peanut redskins, wood splinters, full rodent excretia and mass of fibers and string resembling those from burlap bags."

The evidence showed that Doggett had used Thimet on his farm in the past as an insecticide and for rodent control. The poison had not been employed on the premises, however, after the Spring of 1976, according to plaintiff's son, and for "four to six months prior to this [incident]," according to plaintiff.

Testimony showed Thimet was sold in 20-pound sealed bags that were packed inside a pasteboard box. After the incident in question, an empty Thimet box was found in the rear of the feed barn, a 20-by-30-foot structure. The box was about 30 feet from the bags of Pro-Blend 50 and, according to the County Agent, "had about six inches of dust on it." The evidence showed the empty box had been in the same location for "at least" ten years. There was no "active" Thimet in the box.

The plaintiff testified there was one sealed bag of Thimet on his farm at the time of the incident. It was stored with other chemicals in a structure used as a workshop, located 50 yards from the feed barn. The evidence showed the "closed" bag of Thimet was in the same condition before and after the incident. Responding to a question by plaintiff's counsel, plaintiff's son denied introducing any phorate into the feed mill.

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