Winter v. Honeggers' & Co., Inc., 55762

Citation215 N.W.2d 316
Decision Date20 February 1974
Docket NumberNo. 55762,55762
Parties14 UCC Rep.Serv. 112 Ernest L. WINTER, Appellee, v. HONEGGERS' & CO., INC., Appellant.
CourtUnited States State Supreme Court of Iowa

Watson, Elgin & Hoyman, Indianola, for appellant.

Reynoldson, Brown & Van Werden, Osceola, for appellee.

Heard before, MOORE, C.J., and MASON, RAWLINGS, LeGRAND and UHLENHOPP, JJ.

MASON, Justice.

Defendant appeals from judgment entered on a plaintiff's verdict awarding damages in a law action tried on the theory defendant's breach of either express or implied warranty was a proximate cause of plaintiff's hogs developing a certain illness or disease resulting in damage to plaintiff.

Ernest L. Winter, a Clarke County farmer engaged primarily in the production and sale of hogs for breeding stock, purchased from defendant Honeggers' & Co., Inc., a confinement hog farrowing house known as a 'Thrive Center' designed and manufactured by defendant with a 24-sow capacity. Defendant erected the facility on plaintiff's farm in time for its use in July 1967.

Plaintiff had started in a disease control program on breeding stock known as SPF in 1965 by purchasing some gilts and a boar from accredited herds. The initials stand for 'Specific Pathogen Free.' It is a group that has been founded to administer a program for the control of the two chronic respiratory diseases of swine, atrophic rhinitis and the chronic mycoplasmal pneumonia formerly called virus pneumonia.

From the record we learn that atrophic rhinitis is a transmissible wasting of the delicate turbinate of the nasal cavity. The actual tissue changes are primarily a stunting and a resorption of this delicate, scroll-like bone and a failure of the development to a limited extent of the denser bones that make up the nasal cavity.

Another witness tells us that atrophic rhinitis is a disease of the hog; the nose is infected with organisms and as a result of that infection, there may be damage to the internal bones called turbinates, and the lining of those bones to a varying degree will erode away or be reabsorbed and thereby cause problems in filtering out the air as it passes through the nose into the lungs. Rhinitis is normally associated with a decrease in rate of gain in the efficiency with which market hogs being fed for slaughter will convert feed into gain. They are usually more susceptible to secondary respiratory infections. It is caused only by a disease organism known as bordetella. There is a difference of opinion among experts here as to whether there is a distinction between infectious atrophic rhinitis and atrophic rhinitis.

We understand that to become an accredited SPF hog herd, the swine must go either through the laboratory at Manilla, Iowa, (which procedure is not relevant here) or be purchased as SPF accredited stock. The swine must be tested for Brucellosis and a veterinarian must make a quarterly report in regard to health and disease. He makes visual inspection to determine the problems, if any, the farmer is having with his herd, what type of precautions he takes on his farm and what visitor control he might have. This report is sent to the national office in Conrad, Iowa.

It is further required that after the herd is started and sows farrow and the litter is brought along, 10 head of butcher hogs must be taken to slaughter for visual inspection before any can be sold. If they pass visually, they are then accredited.

Plaintiff received his accreditation in this program August 26, 1965, after going through the regular accrediting procedure. After going into the program Winter purchased only hogs that were SPF accredited. He had a 'closed herd' and had no health problems with his SPF herd prior to construction of the Honeggers' Thrive Center hog house.

Following the August 26, 1965, slaughter check plaintiff was checked again February 23, 1966, and passed. He was rechecked and passed August 10, 1966, January 26, 1967, and again August 2, 1967. There were 10 hogs slaughter checked each date at a Des Moines slaughter house by Dr. Spear who made most of the visual inspections. None of these swine were farrowed in the Honeggers' Thrive Center farrowing house.

Plaintiff first experienced difficulty January 25, 1968, after his swine went for slaughter check and failed because of damage to the turbinates. This was visually diagnosed by Dr. Spear as atrophic rhinitis and caused Winter to lose his SPF accreditation for approximately four months. He also received 'bad checks' in November 1968 and May 1969.

January 25, 1968, plaintiff's accreditation was suspended. After reinstatement his accreditation was again suspended November 13, 1968, when Dr. Spear diagnosed atrophic rhinitis in some of the carcasses. After again being reinstated plaintiff's accreditation was fully revoked in May 1969 as a direct result of the diagnosis atrophic rhinitis by Dr. Spear in certain carcasses of animals slaughtered from plaintiff's herd. The hogs involved in the slaughter checks in January, November and May had been farrowed in the Honegger building.

April 22, 1970, after depopulation and repopulation plaintiff's herd was re-accredited and remained accredited at the time of trial.

December 16, 1970, plaintiff filed a petition in four divisions. He separately alleged causes of action based upon: (1) implied warranty; (2) express warranty; (3) negligence; and (4) strict liability. Defendant in answer to each division admitted some allegations and denied others. At the conclusion of all evidence the cause was submitted to the jury on the issues of breach of implied warranty and breach of express warranty.

Plaintiff's theory of recovery as asserted in the two divisions of the petition submitted to the jury is based on the contention his accreditation was lost because of the presence of atrophic rhinitis in his herd; that the environmental conditions of the thrive center were a cause, or at least a contributing cause, of the hog disease and his damage.

In support of his theory plaintiff offered evidence that the design, construction and instruction for use of the ventilating system installed by defendant for use in the thrive center were defective permitting a build-up and accumulation of deleterious gases in the facility, a by-product of the hog waste which dropped through the slatted floor into a concrete manure pit directly under the hog house. These gases would include ammonia, carbon dioxide, nitrous oxide, nitrogen dioxide, hydrogen sulphide and methane gas, none of which were beneficial to the hogs.

Plaintiff and his veterinarian experienced irritating odors which produced a burning sensation in the nostrils, respiratory discomfort and even nausea when working in the thrive center facility before modification of the ventilation system by plaintiff.

As the facility was initially constructed, the three ventilating fans were activated by thermostats and the only heat source other than the heat given off by the hogs themselves was from 12 3000 BTU heaters. The building is essentially air-tight. However, in the winter the temperature would not rise sufficiently in the facility to activate the fans because of insufficient heat source. The louvers on the ventilators would ice over in the winter. There also was excessive mositure built up in the facility.

After plaintiff's hogs developed the rhinitis problem, he modified the ventilation system by installing a 75,000 BTU heater and activating the fans by means of a time clock in addition to the thermostats. This modification alleviated the ventilation problems.

As stated, this is a law action. Our appellate jurisdiction is not de novo but is confined to correction of errors assigned. Rule 334, Rules of Civil Procedure.

The two issues presented for review by defendant's appeal are both directed to the trial court's failure to sustain defendant's motion for directed verdict made at the close of plaintiff's evidence and renewed at the close of all evidence and to sustain defendant's motion for new trial and judgment notwithstanding the verdict.

I. Defendant contends in support of its first assignment plaintiff failed to sustain his burden of proving a causal connection between any alleged defect in the Honeggers' building and the atrophic rhinitis diagnosed in plaintiff's hog herd which resulted in plaintiff's loss of his SPF accreditation. It argues the court erred in not withdrawing from the jury any consideration of damages alleged to have been sustained as a result of plaintiff's loss of his SPF accreditation as well as any claim for future damages alleged to have been sustained.

It is our view plaintiff had the burden, under the pleadings involved, to establish by a preponderance of the evidence that a defect in the design, construction or installation of the Honeggers' building was a substantial factor in causing damages to plaintiff's hog herd. This means it was plaintiff's burden to establish that the improper design, construction or installation of this facility and the appurtenances thereto caused a build-up and accumulation of gases in the housing facility which resulted in the atrophic rhinitis diagnosed in his herd.

In Frederick v. Goff, 251 Iowa 290, 298, 100 N.W.2d 624, 629, in considering the causal relation necessary to responsibility for harm resulting in damage to another, this court with apparent approval repeated the following statement of principle from Restatement, Second, Torts, section 431:

'The actor's negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.'

In several recent decisions we have repeated this statement. See Federated Mutual Imp. & H. Ins. Co. v. Dunkelberger, 172 N.W.2d 137, 144 (Iowa 1969); Andrews v. Struble, 178 N.W.2d 391, 398 (Iowa 1970), and cases cited in these opinions.

Although the...

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