Swenson v. Chevron Chemical Co., s. 11498

• Decision Date: 17 October 1975
• Docket Number: 11502,Nos. 11498,s. 11498
• Citation: 234 N.W.2d 38,89 S.D. 497
• Parties: , 18 UCC Rep.Serv. 67 Merle SWENSON, Plaintiff and Respondent, v. CHEVRON CHEMICAL COMPANY, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 38

234 N.W.2d 38

89 S.D. 497, 18 UCC Rep.Serv. 67

Merle SWENSON, Plaintiff and Respondent, v. CHEVRON CHEMICAL COMPANY, Defendant and Appellant.

Nos. 11498, 11502.

Supreme Court of South Dakota.

Oct. 17, 1975.

Woods, Fuller, Shultz & Smith, and Timothy J. Nimick, Sioux Falls, for defendant and appellant.

Ronald C. Aho, Brookings, for plaintiff and respondent.

WINANS, Justice.

Merle Swenson, plaintiff-respondent, farms approximately 600 acres of land near Garretson, South Dakota. In the spring of 1972 he planted 300 acres of corn in various fields. There were about 245 acres of land which had been previously planted with corn and all these required treatment with a corn rootworm insecticide. Two different insecticides were used. One was Ortho Bux Ten Granular which is manufactured by defendant-appellant and marketed 'for control of corn rootworm larvae.' Swenson purchased 2,100 pounds of Bux Ten in April of 1972 from the Luverne (Minnesota) Farm Store at a cost of $717. This insecticide was applied to some 225 acres, resulting in an application rate of over nine pounds per acre. Having exhausted his supply of Bux before treating all the acreage, Plaintiff purchased 180 pounds of another insecticide, Thimet, and applied it to the 20 acres remaining. These were situated in a 100 acre field otherwise treated with Bux.

The application of the insecticides took place simultaneously with corn planting between May 3rd and May 20th and the corn was thereafter sprayed for weeds, cultivated, and hoed with a rotary hoe. On July 14th Plaintiff observed that virtually all of the corn he had treated with Bux Ten was leaning severely ('lodged') while all of the corn treated with Thimet stood erect as did the first-year corn which did not require insecticide. On the previous evening 8/10 of an inch of rain had fallen, accompanied by wind.

Plaintiff immediately notified George Gulla of the Luverne Farm Store that his Bux-treated corn was badly lodged. Gulla and M. W. Karns, a sales representative for Defendant, examined the corn fields and Swenson testified that Karns was of the opinion that Swenson had a severe corn rootworm problem. Plaintiff also contacted Glen Schrader, Minnehaha County Agricultural Extension Agent, who in turn contacted Dr. Benjamin H. Kantack, extension entomologist for the Cooperative Extension Service of South Dakota State University at Brookings. They both inspected the cornfields in question and Dr. Kantack testified at trial that he observed corn rootworm damage in the fields treated with Bux Ten to the extent that the corn was 'severely injured by corn rootworm.' Dr. Kantack also testified that he observed no corn rootworm damage in any of the Thimet-treated corn or in the untreated first-year corn. Dr. Kantack was asked if corn rootworm was effectively controlled on the Bux fields he had observed and he answered in the negative. When asked if he had observed any control of the corn rootworm he said 'If there was any control there I couldn't detect it.' When questioned about control of corn rootworm in the Thimet field area he stated that the corn rootworm had been controlled there.

Dr. Kantack testified as to the manner in which corn rootworm larvae damage growing corn. When the larvae first hatch they migrate to roots and begin feeding on the root and roothairs, actually burrowing into the roots and eating the entire root system. This affects the corn's uptake of nutrients, fertilizer and moisture and ultimately reduces the yield. A corn plant may nevertheless continue to grow under certain conditions and may regenerate new roots. It grows upward, but in a curved fashion, and Plaintiff harvested his corn in October of '72 and it was necessary for him to hire a custom combiner at $6.50 per acre because of the condition of the corn instead of using his own corn picker. Swenson caused four rows of Bux-treated corn and four rows of Thimet-treated corn, all of equal length, to be combined. Due to an oversight of the combine operator a portion of the Thimet corn was included in the Bux sample, thus enhancing the Bux corn sample in a yield comparison. Each sample was brought to the Corson Elevator and separate weight tickets were issued. On the basis of these Plaintiff calculated the difference in the yield between the damaged and the undamaged corn to be 14.74 bushels per acre, the Bux corn being the smaller of the two yields.

is referred to as 'goosenecked.' With an impaired root system the ultimate yield is diminished. Once the corn had been lodged due to a rootworm infestation, no corrective action can be taken to clear up the infestation or minimize damage, other than to harvest the corn with a combine rather than a straight corn picker.

Plaintiff commenced an action against Chevron Chemical Company at Sioux Falls, June 1, 1973. A jury trial was held in March of 1974 on the issues of strict liability and express warranty. When Plaintiff rested the trial judge directed a verdict for the defendant on the issue of strict liability. The jury returned a verdict in the amount of $4,250 and judgment was entered thereon. From that verdict Defendant appeals and on the question of strict liability Plaintiff cross appeals. Because we affirm the decision of the trial court on the issue of express warranty we find no need to deal with the cross appeal on strict liability.

Appellant charges that (a) the breach of express warranty theory is insupportable, (b) there was insufficient evidence of damage, (c) there were errors in the instructions to the jury and (d) there were evidentiary errors.

EXPRESS WARRANTY

Our state law on the creation of express warranties is set out in SDCL 57--4--25 through 57--4--29. SDCL 57--4--26 provides that:

'Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.'

SDCL 57--4--29 provides that:

'It is not necessary to the creation of an express warranty that the seller use formal words such as 'warrant' or 'guarantee' or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty.'

We turn now to the pertinent parts of the labeling of the bags containing the Ortho Bux Ten. One such bag was introduced into evidence at the trial and it bears the following information, all in very readable large heavy type. On one side is found:

'Chevron Ortho Bux Ten Granular for control of corn rootworm larvae (insecticide)'.

On the reverse side there are directions for application, cautions relating to the danger of swallowing the contents and then the following:

'CONDITIONS OF SALE: 1. Chevron Chemical Company (Chevron) warrants that this material conforms to the chemical description on the label and is reasonably fit for use as directed hereon. Chevron neither makes, nor authorizes any agent or representative to make, any other warranty of FITNESS or of MERCHANTABILITY, guarantee or representation, express or implied, concerning this material.

2. Critical and unforeseeable factors beyond Chevron's control prevent it from eliminating all risks in connection with Appellant argues that the only effective express warranty involved in this case is one that the insecticide will conform to the label. Appellant refers, however, only to that portion of the label listing the chemical ingredients of the insecticide. We find that the label taken as a whole not only lists chemical ingredients but also promises to the potential buyer that the Ortho Bux Ten sack contains fifty pounds of a material which is an insecticide developed especially for the control of corn rootworm larvae. Contrary to what Appellant has argued, we do not find that such words as express the capacity of the chemicals for corn rootworm larvae control are mere words of opinion or puffery. In California Chemical Company v. Lovett, 1967, La.App., 204 So.2d 633, Judge Fruge, dissenting, questioned 'whether or not public policy should permit the commercial enterprise to produce a product, advertise it, and place it on the market making representations that the product is designed to serve one particular purpose, and then totally avoid any and all responsibility on its part, should the product fail to be suitable for the purpose it was intended and represented to serve. * * * And even if it be said that the defendant intended only to (sic) purchase of the chemicals as specified on the containers themselves, nonetheless, it is unmistakable that his motive for purchasing those chemicals was to receive a product which would be effective as an insecticide, which motive was known to the other party; and the ineffectiveness of the chemical compound as an insecticide must be deemed as error in the motive or cause of the contract thereby invalidating the contract itself.' We too are of the opinion that public policy should not allow a manufacturer to avoid responsibility for the ineffectiveness of a product which was offered, as in this case, for only one purpose, the effective control of corn rootworm larvae. An express warranty clearly exists and Appellant must be held to it.

the use of chemicals. Such risks include, but are not limited to, damage to plants and crops to which the material is applied, lack of complete control, and damage caused by drift to other plants or crops. Such risks occur even though the product is reasonably fit for the uses stated hereon and even though label directions are followed. Buyer and user acknowledge and assume all risks and liability (except those assumed by Chevron under...