Wilderspin v. Bewley Mills, Inc.

• Decision Date: 23 November 1956
• Docket Number: No. 15758,15758
• Citation: 298 S.W.2d 636
• Parties: George WILDERSPIN, Appellant, v. BEWLEY MILLS, Inc., Appellee.
• Court: Texas Court of Appeals

Page 636

298 S.W.2d 636

George WILDERSPIN, Appellant, v. BEWLEY MILLS, Inc., Appellee.

No. 15758.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 23, 1956.

On Rehearing Jan. 18, 1957.

Rehearing Denied Feb. 15, 1957.

Rawlings, Sayers, Scurlock Eidson and Nelson Scurlock, Fort Worth, for appellant.

Cantey, Hanger, Johnson, Scarborough & Gooch and Emory Cantey, Fort Worth, for appellee.

BOYD, Justice.

Appellant George Wilderspin sued appellee Bewley Mills, Inc., for damages, alleging that his herd of about 400 cattle became diseased and emaciated and many of them died as a result of their consuming feed manufactured and sold by appellee to appellant. There were allegations of breach of implied warranty and negligence, but the case was submitted to the jury only upon the basis of breach of warranty.

The jury found that when the feed was delivered to appellant by appellee it contained trichloroethylene; that the eating of such feed by the cattle was the producing cause of their becoming diseased and emaciated and of many of them dying; and that the difference in the value of the cattle before and after they became affected with disease was $57,505.

At the close of the evidence, appellee moved for an instructed verdict, which motion was overruled; after the verdict, appellee moved for judgment non obstante verdicto, which motion was overruled, and judgment was entered for appellant for $67,424.65, which included interest at six per cent per annum from March 10, 1953. After hearing appellee's amended motion for new trial, one ground thereof being that the court erred in overruling appellee's motion for instructed verdict, and another being that the court erred in overruling appellee's motion for judgment non obstante veredicto, the court set aside its original judgment, and its order overruling appellee's motion for judgment non obstante veredicto, and granted said motion, decreeing that appellant take nothing.

Appellant presents a single point of error, namely, that the court erred in granting appellee's motion for judgment non obstante veredicto. He contends that since appellee sold the feed to appellant for immediate consumption by his cattle, appellee impliedly warranted that the feed was wholesome and fit for its intended use; that since the cattle were damaged by eating the feed, appellee was liable on the implied warranty; and that there was evidence of probative force upon which the jury made its findings, which evidence would have supported a judgment for appellant.

We do not doubt that when appellee sold the feed to appellant it impliedly warranted that the feed was wholesome and fit to be fed to cattle. The feed was sold for immediate consumption. 'On a sale of food or provisions for 'immediate consumption,' the seller impliedly warrants that the commodity is wholesome and fit for the intended use. The warranty applies to a sale of stock feed, as well as to a sale of food for human consumption, made by a retail dealer to a consumer, where the purpose of the latter is understood. * * * ' 37 Tex.Jur., p. 299, sec. 131, and authorities there cited. On page 294, sec. 126, of the same volume, we find the following: 'A manufacturer who makes and sells an article to be used for a specific purpose impliedly warrants that it is reasonably fit for the purpose, when used in the proper or prescribed manner or quantity, and under prescribed conditions.' See also Houston Cotton Oil Co. v. Trammell, Tex.Civ.Appl., 72 S.W. 244; Parks v. O'Connor, 70 Tex. 377, 8 S.W. 104; Jones v. George, 61 Tex. 345; Needham v. Dial, 4 Tex.Civ.App. 141, 23 S.W. 240; Kellogg Bridge Co. v. Hamilton, 110 U.S. 108, 3 S.Ct. 537, 28 L.Ed. 86.

Judgment non obstante veredicto is never warranted unless a directed verdict would have been proper. Before such a judgment may be sustained, it must appear that there is no evidence of probative force upon which the jury could have made its findings. And in cases of this kind, a reviewing court must consider the testimony from the standpoint most favorable to the party against whom the judgment is entered. It is the jury's province to weight the evidence and determine the credibility of the witnesses; this the trial court cannot do in considering whether a directed verdict is proper. The jurors are not only the exclusive judges of the facts proved, but of all reasonable inferences to be drawn from the facts. In considering a motion for instructed verdict or for judgment non obstante veredicto, the trial court is not at liberty to decide whether a finding of the jury is against the great weight and preponderance of the credible testimony. And where, as here, judgment non obstante verdicto is entered, the only question which a reviewing court has power to determine is whether there was evidence of probative force to raise a jury issue, regardless of the weight of the evidence to the contrary. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Whiteman v. Harris, Tex.Civ.App., 123 S.W.2d 699, writ refused; Warren v. Schawe, Tex.Civ.App., 163 S.W.2d 415, writ refused; Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616; Stephenville, N. & S. T. Ry. Co. v. Shelton, Tex.Com.App., 208 S.W. 915; 53 Am.Jur., p. 143, sec. 158.

We are unable to agree with appellee's contention that the evidence in support of the verdict amounts to no more than surmise or conjecture. Furthermore, we think appellee's appraisal of the testimony is more a criticism of its weight than of its legal sufficiency to raise fact issues. After a careful consideration of the eivdence, we are forced to the conclusion that it had sufficient probative force to carry the case to the jury, and that therefore judgment for appellee non obstante veredicto was not warranted.

Appellee had manufactured the feed which it sold to appellant. It was about twelve per cent soybean meal. It was shown that some processors of soybeans used trichloroethylene as a solvent in extracting the oil from the bean, and that soybean meal processed in this manner is poisonous to animals consuming it, and especially to ruminants.

It is unnecessary to set out the voluminous evidence in detail. It was sufficient to show the following: Appellant's cattle were in good condition during the summer and autumn of 1952; the grass was good on his ranch; much of the ranch was bottom land where the grass was green throughout the autumn months; there was about one head of cattle to every ten acres of grazing land; but appellant wanted to supplement the nourishment obtained by the cattle from grazing, and on the recommendation of appellee's representative, he bought from appellee 720 one hundred pound sacks of Bewley's Anchor Range Chunkets, which contained the soybean meal; 20 sacks were delivered to appellant at appellee's mill on August 19, 1952; 200 sacks were purchased on October 10, 1952, and shipped by appellee to appellant's ranch by train; 500 sacks were purchased on November 13, 1952, which appellee likewise shipped by train; appellant began feeding the chunkets about November 1, 1952, at the rate of one pound per day per head, and in ten or twelve days the amount was increased to two pounds per day; in December some of the cattle appeared to be losing weight, and two died; at the suggestion of Dr. Williamson, a veterinarian, the feeding of the chunkets was increased to three or more pounds per day; the cattle continued to decline in condition, and feeding of the chunkets were discontinued about January 10, 1953; no improvement in the condition of the cattle was noted after the discontinuance of such feed, but on the contrary their condition deteriorated; by March 10, 1953, 129 cattle had died, and the others were sold, some of which were condemned as unfit for beef for human consumption; appellant used no prepared feed other than that purchased from appellee.

Dr. Williamson testified that he was called to examine the cattle a few days before Christmas, 1952; that the emaciated condition of the cattle led him to suspect that they were not getting sufficient nourishment, and he recommended increasing the amount of chunkets fed until each animal was getting three or four pounds per day; that after such increased ration did not improve the condition of the cattle, he made a test for anthrax, which was negative; that he then suspected that the cattle had hyperkeratosis and called Dr. Schmidt, a veterinarian with Texas Agricultural & Mechanical College; that Dr. Schmidt determined that the cattle were not afflicted with hyperkeratosis; that witness then concluded that the condition of the cattle resulted from plant or chemical poisoning; that the only plant the eating of which would give rise to symptoms resembling those exhibited by the cattle was bracken fern; that he went over the ranch and found no bracken fern; that bracken fern was not commonly found at the time of year in question; that a veterinarian from the Texas Livestock Sanitary Commission determined that the cattle were not afflicted with any infectious disease; and that witness finally concluded that their condition resulted from chemical poisoning from their feed.

Appellant sent a sample of the chunkets to the McCarroll Laboratories in Oklahoma City for chemical analysis. McCarroll, the owner of the laboratory, testified that he had a bachelor of science degree, majoring in agricultural chemistry, and that he had had many years' experience as a chemist; and that he made a chemical analysis of the chunkets and that it showed the presence of trichloroethylene.

Dr. Williamson further testified that trichloroethylene poisoning was practically unknown in Texas at the time he first examined appellant's cattle, and he was not then familiar with the effect that chemical would have on cattle consuming it; but since trichloroethylene was found in the chunkets,...