Texsun Feedyards, Inc. v. Ralston Purina Company

• Decision Date: 23 April 1970
• Docket Number: Civ. A. No. 5-576.
• Citation: 311 F. Supp. 644
• Parties: TEXSUN FEEDYARDS, INC., Plaintiff, v. RALSTON PURINA COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Texas

311 F. Supp. 644

TEXSUN FEEDYARDS, INC., Plaintiff, v. RALSTON PURINA COMPANY, Defendant.

Civ. A. No. 5-576.

United States District Court, N. D. Texas, Lubbock Division.

April 23, 1970.

Ernest L. Langley of Witherspoon, Aikin, Thomas & Langley, Hereford, Tex., for plaintiff.

Thomas W. Hathaway, of Johnson, Hathaway & Jackson, Tyler, Tex., for defendant.

MEMORANDUM OPINION

WOODWARD, District Judge.

Plaintiff in the above suit seeks damages from Defendant on the theory of products liability-implied warranty and grounds of negligence asserted in its complaint. The Defendant was a manufacturer of certain feed supplements designed to be mixed with other feeds and fed to cattle. The Plaintiff was engaged in the business of operating a feedlot, feeding such cattle various feedstuffs including the ration supplement. Defendant sold the ration supplement in question to a third party, but knew at all times that this specially designed ration supplement was for use by the Plaintiff at its feedlot and in fact had one of its expert nutritionists examine the feedlot and consult with the Plaintiff in connection with its feeding operations. Plaintiff contended that the ration supplement was defective in that it did not contain the proper proportion of ingredients and that the instructions of the Defendant for the use of said ration supplement was defective in giving the amount of ration to be fed. As a result, Plaintiff claims that the cattle using this ration supplement did not gain the weight normally expected, and that Plaintiff suffered damages including certain refunds and rebates made by the Plaintiff to its customers because its customers' cattle did not gain at the rate expected.

The case was submitted to the jury on special issues and in response thereto the jury found that the Plaintiff had suffered damages because it fed and used the Defendant's ration supplement, that the ration supplement prepared by the Defendant was not suitably and reasonably fit for the purposes for which it was intended, that such unfitness was a producing cause of the damages or losses which the Plaintiff sought, that the ration supplement was fed by the Plaintiff to the cattle without any substantial change in its condition from the time it left the possession, care and control of the Defendant, and that the Plaintiff used the ration supplement as it was intended to be used and/or as the Defendant instructed it to be used.

The jury further found that the Defendant was negligent in failing to give the Plaintiff proper instructions as to the percentage of the ration supplement to be mixed with the cattle feed and was also negligent in preparing a ration supplement that did not contain the proper mixture or proportion of its essential ingredients, and that both of said acts of negligence were a proximate cause of the damage suffered by Plaintiff.

In Special Issue No. 8, the jury further found that the Plaintiff, during the time in question, engaged in feeding and management practices at its feedyard that adversely affected the rate of consumption of feed by the cattle and that this was a proximate cause of the damages or losses about which Plaintiff complained.

On the damage issues the jury found that the Plaintiff had suffered $27,000.00 in damages because it fed and used the Defendant's ration supplement during the period in question. In this particular issue the jury was specifically instructed not to include any loss of profits or damages to the business or reputation of the Plaintiff.

In another damage issue, the Court inquired of the jury as to whether or not Plaintiff suffered any loss of profits or damage to the business reputation because it used the Defendant's ration supplement and the jury found that the amount of this was $10,000.00.

It is the opinion of the Court that the amount of $10,000.00 damages to the business reputation and loss of profits is not supported by the evidence. It would appear to the Court that damages on this issue, under the evidence in this case, could be based only on speculation and conjecture and should not be allowed. Western Union Tel. Co. v. R. J. Jones & Sons, 211 F.2d 479 (5th Cir. 1954); Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (Tex.1938); Wade v. Southwestern Bell Tel. Co., 352 S.W.2d 460 (Tex.Civ.App. — Austin, no writ history). An issue on loss of profits or damages to business reputation should not have been submitted to the jury because there was no evidence to support a finding of the jury and this portion of the jury's verdict will be disregarded. Western Union v. R. J. Jones & Sons, supra.

However, the Court is of the opinion that judgment should be awarded for the $27,000.00 damages found by the jury to have been suffered by the Plaintiff in Special Issue No. 5.

Both parties have filed their respective motions for judgment and the Court has this date entered its judgment granting in part Plaintiff's Motion for Judgment and denying Defendant's motion, and accordingly judgment for $27,000.00 has been entered.

Although the jury found that the Defendant was negligent in two of its acts, that each was a proximate cause of the damages, no recovery can be allowed upon a negligence theory because the jury further found in the answer to Special Issue No. 8 that the Plaintiff was also negligent in connection with its feedlot operations and that such negligence was a proximate cause of its damages, hence contributory negligence by the Plaintiff will bar any recovery on the theory of negligence.

It is the contention of the Defendant that recovery should not be allowed on the theory of products liability or implied warranty, contending that the contributory negligence found by the jury on the part of the Plaintiff is also a bar to recovery on this theory. It should be noted that the jury did return its special verdict favorably to the Plaintiff on all of the necessary elements to support a recovery on the grounds of breach of implied warranty or products liability. Specifically, the jury found that in the use of the Defendant's product, the Plaintiff used the ration supplement as it was intended to be used and/or as the Defendant instructed it to be used.

At first blush it would seem that this finding of proper intended use is in conflict with the finding of contributory negligence concerning the feeding and management practices of the Plaintiff. However the facts indicate in this case that the use of the ration supplement involves the proper mixing of same with other feeds and that many other things enter into...