Weber v. Fidelity & Cas. Co. of New York

• Decision Date: 25 May 1970
• Docket Number: No. 8002,8002
• Citation: 236 So.2d 616
• Parties: Emile WEBER, Individually, etc. v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK et al.
• Court: Court of Appeal of Louisiana — District of US

Page 616

236 So.2d 616

Emile WEBER, Individually, etc. v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK et al.

No. 8002.

Court of Appeal of Louisiana, First Circuit.

May 25, 1970.

Rehearing Denied June 30, 1970.

Henry D. Salassi, Jr., of Breazeale, Sachse & Wilson, Baton Rouge, for appellant.

John T. Caskey, Jr., Asst. Dist. Atty., Baton Rouge, for appellees .

Before LANDRY, SARTAIN and ELLIS, JJ.

LANDRY, Judge.

Defendant William Cooper and Nephews, Incorporated, manufacturer of an arsenical product known as 'Cooper's Cattle Dip', and its insurer, Fidelity and Casualty Insurance Company of New York, appeal from the judgment of the trial court awarding plaintiff Emile Weber damages for the loss of cattle and personal injuries to plaintiff's minor sons, Steve and Karl, allegedly resulting from the defective manufacture of the above named product. Kalmbach-Burkett Company, Inc., local distributor of the cattle dip, was also made defendant. An amendment to the original petition asserts the majority of both of plaintiff's sons. The trial court rejected plaintiffs' demands against Kalmbach-Burkett and plaintiffs have not appealed therefrom. We reverse the judgment rendered below and dismiss plaintiffs' demands.

It is undisputed that seven head of cattle belonging to plaintiff Emile Weber died on August 31-September 1, 1963, of arsenic poisoning after having been sprayed with a solution containing defendant's cattle dip. It likewise appears Steve and Karl Weber became dizzy, nauseous and felt faint as a result of being exposed to the solution while spraying animals composing a small herd of cattle being raised by Steve as a 4-H Club project.

The trial court found as a fact that the cattle dip, an admittedly dangerous product, was the cause of the animals' death and the illness experienced by the Weber youths. He also found that the product was properly labeled and gave sufficient warning of its dangerous propensities. The trial court likewise found that plaintiff Steve Weber, who mixed the solution and sprayed the animals, substantially complied with the label instructions governing the preparation and application of the dip. Although the lower court recognized the possibility that other factors could have caused or contributed to the loss and injury, he concluded circumstantial evidence offered by plaintiffs warranted the finding that the dip was negligently manufactured.

The record discloses that Steve Weber was approximately 17 years of age at the time of the incident in question. For some four or five years he had been engaged in raising cattle as part of a 4-H Club project. His endeavors had produced a herd of approximately 12 cattle, some of which had won honors in stock shows. On the afternoon of August 31, 1963, he decided to spray his cattle to rid them of flies, known as cattle grubs, which lay eggs on cattle. The eggs apparently produce worms which enter the bodies of cattle causing large holes to appear in the animal's back.

To accommodate his son Steve, the senior Weber maintained a charge account with Kalmback-Burkett, a distributor of livestock feed and supplies. It appears that Steve had virtually unlimited authority to purchase from this source such feed and supplies as his cattle project required. Approximately four to five months prior to the incident in question, young Weber placed a telephone order with the distributor for a cattle spray in anticipation of spraying his herd on some future occasion. He did not, however, specify either the type of spray desired or the number of cattle to be prayed. The employees of the distributor filled the order by depositing a five gallon can of Cooper's Cattle Dip on its loading dock where it was picked up by young Weber after the distributor had closed for the day. The container of dip was brought to the plaintiffs' ranch home and stored in a barn or similar facility somewhat removed from the family residence.

The evidence discloses beyond doubt that the afternoon on which the spraying occurred was an extremely hot day. Steve Weber, assisted by his younger brother, Karl, on foot rounded up the cattle from a pasture measuring approximately 10 acres in area. The animals were thusly herded into a pen near a shed or barn. They were then led singly by a rope halter from the pen to a shed where they were tied to a post and sprayed one at a time. After spraying, they were let out to pasture. Each animal was sprayed over its entire body, including its head. After the seventh or eighth animal was treated, signs of distress began to appear in that the sprayed animals staggered, fell and went into convulsions. The spraying operation was ceased immediately. The Senior Weber was summoned and in turn he enlisted the aid of a veterinarian. When the boys complained of dizziness, nausea and feeling faint, Mr. Weber immediately took them to a physician. The veterinarian worked the remainder of the afternoon and through the night attempting, without success, to save the animals that had been sprayed.

The container of Cooper's Cattle Dip displayed a large yellow label measuring approximately 14 by 7 inches. Detailed instructions for its use were printed in black thereon as follows:

'Directions for Use

For all Official Dippings in interstate movement of liverstock, add one gallon of Dip to every 127 gallons of water. For ranch use and other than official dipping, a dilution of one gallon of Cooper's Cattle Dip to 155 gallons of water will be found very effective. Always pour dip straight into the water and mix thoroughly with a plunger. There should be no previous mixing.

'The stirring should be very thoroughly done--this is important--Cooper's Cattle Dip dissolves readily but to be sure it is thoroughly mixed, proper attention must be given to this first stirring. No intermediate stirring is necessary, as no sediment forms in the mixed wash. Wash out cans to ensure the entire contents being used. In mixing the solution don't guess at the quantities of either water or Dip.

It is important that the Dip and water be accurately measured and the proper strength always maintained. This can be done with a Cooper's Cattle Dip Testing Outfit.

If mixed dip has stood several months, it should not be used--clean out dipping vat and start with fresh dip. Old mixed dip oxidizes in the vat and is stronger than the Testing Outfit indicates. This may cause burning.

Cooper's Cattle Dip is effective when applied as a spray--however, spraying should always be carefully done--never spray cattle bunched in a pen--treat each animal individually in a chute.

Never rub dip on to skin--this is dangerous.

It is very necessary to rest and water cattle before dipping or spraying. Cattle should be rested in a shady place following dipping or spraying and never driven immediately after treatment. Cooper's Cattle Dip is a very reliable product and will give excellent results, but if cattle are heated or tired there is liability of burning. Dip or spray early in the day to assure cattle drying thoroughly before nightfall--this is especially important on cloudy or muggy days. Carelessness in this respect may result in serious loss.

Repeated Dipping or Spraying--If a second dipping or spraying is carried on in the interstate movement of live stock, an interval of not less than seven days after the first should be allowed.'

At the bottom of the label appeared a red skull and crossbones on either side of which were the words 'Caution Poison.' Below this warning, the following admonition appeared in red:

'Cooper's Cattle Dip is a poisonous preparation and must be used in accordance with directions. Never increase the strength. Cooper's Cattle Dip will fulfill claims made for it at the strength designated.

CAUTION-Keep away from children, pets and food stuffs. Avoid excessive skin contact and wash off thoroughly after exposure. If on clothing remove and wash. Avoid inhalation and spray mist. Skin absorption or swallowing may be fatal to livestock. Rinse empty containers several times with water. Perforate or break, and bury containers, never re-use.'

...