Williams v. Allied Chemical Corp.
| Decision Date | 13 November 1972 |
| Docket Number | No. 9040,9040 |
| Citation | 270 So.2d 157 |
| Parties | Curtis H. WILLIAMS, Plaintiff-Appellee, v. ALLIED CHEMICAL CORPORATION et al., Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
France W. Watts, III, Watts & Watts, Franklinton, for defendant-appellant Allied Chem. Corp.
Richard L. Muller and Robert A. Anderson, Jr., Covington, for defendant-appellant Misla Farm Center, Inc.
Jim W. Richardson, Jr., Richardson & Lilly, Bogalusa, for plaintiff-appellee.
Before SARTAIN, BLANCHE and EVERETT, JJ.
This is an appeal from a judgment rendered June 21, 1971, in favor of Curtis Williams, plaintiff-appellee-appellant, and against Allied Chemical Corporation and Misla Farm Center holding Allied and Misla liable in solido for damages caused by the death of two of plaintiff's cattle. The judgment dismissed the claim against Fred Bass, individually, and no appeal has been taken from that portion of the judgment.
The case arose out of the death of two of plaintiff's cows in November of 1969. On November 7, 1969, plaintiff purchased from Misla Farm Center, Inc. fifty-five (55) gallons of Urea-Molasses Liquid Feed, a protein supplement for cattle manufactured by Allied Chemical. Mr. Williams then transported the liquid feed in his own drum to his dairy farm in Washington Parish. Three or four weeks later he poured a gallon or more of this feed in an old ice box tray about six (6) inches deep and three feet long and placed the tray with the feed in a lot containing about a dozen dry cows. Within an hour of his placing the tray in the lot two of the cows which plaintiff saw eating the liquid feed became ill. Plaintiff immediately removed the tray which now contained only a small amount of the liquid and telephoned Dr. John Thornton, a veterinarian.
When Dr. Thornton reached the farm a short time after receiving the call the two cows were dead. Dr. Thornton performed an autopsy and when he cut into the stomach of the dead cows he noted a strong odor of ammonia. When he found that the cows had just eaten urea-molasses he immediately concluded that the urea content in the feed was probably too high and had caused the formation of the ammonia causing the cows' death. Dr. Thornton performed no other tests on the animals and did not examine any of the other cattle in the lot. A sample of the liquid feed was sent for laboratory analysis and found to contain the standard content of urea. However, it was established through testimony at trial that the cows died from having ingested the liquid at a too rapid rate thereby causing the urea poisoning.
Due to the method of distribution of this type of liquid feed no label is placed thereon by the manufacturer because the purchasers usually transport the feed in their own containers, as was done in this case. However, a pamphlet and brochure is placed with the distributor by the manufacturer for distribution to the purchaser when the feed is sold. The brochure, which was in the possession of Misla Farm Center, was introduced into evidence at trial. It gives a description of the contents of the feed and cautions purchasers to use the feed only in accordance with the directions. The directions instruct users to feed their animals 'free choice' as a diet supplement. The brochure further depicts cattle eating the supplement from what was described at trial as a 'lick wheel'. Testimony established that a 'lick wheel' is a device which consists of a tank containing the liquid and a wheel which turns into the tank and costs itself with the liquid feed. Cattle lick the wheel thereby removing the liquid from it and at the same time turning it to pick up more feed. Testimony established the advantage of this method was that it limited consumption to the amount of liquid on the wheel and thereby limited the rate of ingestion. There was also testimony to the effect that this is the only proper method to feed this liquid supplement to cattle and that this type of feeding is what was meant by the term 'free choice' in the brochure.
Mr. Fred Bass, one of the owners of Misla Farm Center, testified that he had discussed the liquid feed and the use of a 'lick wheel' with Mr. Williams several weeks before the actual purchase of the feed. Bass did not tell the plaintiff that if intake of the supplement was not limited by some device that it could result in the death of cattle. Bass testified that he left the brochures discussed above at plaintiff's home one day while plaintiff was not there.
When plaintiff went to Misla Farm Center to make the actual purchase, Mr. Lloyd Bass made the sale and Joseph Galloway pumped the feed into the drum which Williams brought with him for that purpose. Both Lloyd Bass and Galloway testified that they advised Williams to use a 'lick wheel' in feeding the supplement to his cattle. Williams denies that he received any instructions on the use of a lick wheel as the proper 'free choice' method of feeding the liquid to his cattle at that time.
Upon these facts the trial court ruled that both the manufacturer, Allied Chemical, and the seller, Misla Farm Center, were negligent in failing to sufficiently instruct Williams in the proper method of feeding the supplement and in failing to warn him of the danger of using the feed other than by the 'lick wheel' method. The trial court also ruled that there was no contributory negligence on the part of plaintiff Williams and dismissed the suit against Fred Bass, individually. From this judgment defendants, Misla Farm Center and Allied Chemical perfected suspensive and devolutive appeals. Plaintiff has also appealed from that portion of the judgment relating to the amount of recovery allowed.
The principal issues presented by this appeal are: (1) the sufficiency of the warning or instructions given to plaintiff as to the proper method of using this liquid feed; (2) the contributory negligence of the plaintiff, and (3) the amount of damages allowed.
Based on the testimony at trial and specifically the laboratory report on the liquid feed sample the lower court concluded that there was no defect in the product sold and therefore absolute liability could not be used as a basis for recovery against the manufacturer of the feed or the distributor. However, liability was predicated on the basis that both the manufacturer and vendor of the substance had a positive duty to warn the purchaser of possible dangers in the use of the feed which the lower court found they had failed to discharge.
In his written reasons for judgment the trial judge stated:
'There was no defect in the product sold and therefore the principles of implied warranty are not applicable. However, the Courts of this state have applied the rules of tort to manufacturers, vendors, and dealers in dangerous substances, and have established the duty on the part of such persons to warn of the dangers in the products. This rule was stated in Miller v. New Zealand Insurance Company, 98 So.2d 544 at 546:
"It is recognized by our jurisprudence that a manufacturer of a dangerous substance, Or one which might easily result in injuries to persons or property, owes a duty to those likely to come in contact with it, to warn of danger inherent in the product. The following extract is from 65 C.J.S. verbo Negligence, Sec. 100, p. 626 ". . . A manufacturer, vendor or others dealing in dangerous chemicals and drugs owe to the public a positive and active duty to limit the danger by labeling or otherwise conveying knowledge of the danger . . ."
In the Miller case plaintiff sued for damages to the enamel of certain lavatories in plaintiff's place of business caused by the use of a chemical cleaning fluid thereon which was sold by defendant's insured. The Court affirmed a judgment for plaintiff holding that the proximate cause of the damages was the erroneous and false directions as to the use of the cleaning fluid given to plaintiff's employees by defendant's insured.
In the later case of Larance v. F.M.C. Corporation, La.App., 192 So.2d 628 (2nd Cir. 1966), also cited by the lower court in its reasons for judgment, plaintiff was allowed recovery for damage to his peach trees by use of a chemical fertilizer manufactured by defendant. There were no instructions as to the proper method of use of the chemical printed on the label other than the words 'spray or dust'. It was established that the chemical was not to be used in its undiluted form. The court held that the manufacturer of this chemical compound and the dealer were derelict in their duty to print or disseminate instructions concerning the proper use of the compound and were thus liable for the loss sustained by plaintiff. Neither the brochure nor the oral instructions given Williams sufficiently explained the danger of using the liquid feed. The use of the words 'free choice' in describing the method of using the liquid feed was ambiguous and the danger of using a method of feeding other than by the 'lick wheel' was not explained by the instructions.
Appellants contend that the oral instructions allegedly conveyed to plaintiff at the time of purchase of the feed and on a prior occasion were sufficient to adequately inform him of how the feed was to be used. In support of this contention appellants cite the case of Richardson v. DeLuca, 53 So.2d 199 (Orleans La.App.1951) in which plaintiff was denied recovery for injuries sustained when an explosion occurred while he was using a net preservative solution which he had purchased from defendant. The court found that plaintiff was orally told not to use the solution while smoking. Even...
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