Weber v. Fidelity & Casualty Insurance Co. of NY , 259 La. 599 ( 1971 )

TATE, Justice.

A customer claims damages from the manufacturer of cattle dip and its insurer. The dip had been bought from a local supplier, no longer a party. Application of the dip caused seven of the plaintiff’s son’s cattle to die shortly thereafter, and his two then-minor boys to become ill.

The court of appeal reversed a trial court judgment in favor of the plaintiff and his sons, now majors. 236 So.2d 616 (La. App. 1st Cir. 1970). We granted certiorari, 256 La. 848, 239 So.2d 356 (1970), to review the plaintiffs’ substantial contention that the court of appeal incorrectly denied recovery for damages resulting from the use of the manufacturer’s product. The issue is whether the intermediate court erred in reversing the trial determination that the cattle dip was defective.

Both previous courts correctly found applicable the following legal principles:

A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.

See: Penn v. Inferno Manufacturing Co., 199 So.2d 210 (La.App. 1st Cir. 1967), cert. denied 251 La. 27, 202 So.2d 649 (1967); Arnold v. United States Rubber Co., 199 So.2d 210 (La.App. 1st Cir. 1967), cert. denied 251 La. 739, 206 So.2d 91 (1968); Meche v. Farmers Drier & Storage Co.,. 193 So.2d 807 (La.App. 3d Cir. 1967), cert. denied 250 La. 369, 195 So.2d 644 (1967); Samaha v. Southern Rambler Sales, Inc., 146 So.2d 29 (La.App. 4th Cir. 1962); Percy, Products Liability, 40 Tul.L.Rev. 715 (1967); Note, 26 La.L.Rev. 447 (1966). See also: Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal. Rpfr. 697, 377 P.2d 897, 13 A.L.R.3d 1049 (1963), Noted, 23 La.L.Rev. 810 (1963); Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69 (1960) ; Annotation, Products Liability, 13 A.L.R.3d 1957 (1967).

If the product is proven defective by 'reason of its hazard to normal use, the plaintiff need not prove any particular negligence' by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.

See: Radalec, Incorporated v. Automatic Firing Corp., 228 La. 116, 81 So.2d 830 (1955); Tuminello v. Mawby, 220 La. 733, 57 So.2d 666 (1952); Doyle v. Fuerst & Kraemer, 129 La. 838, 56 So. 906, 40 L.R.A.,N.S., 480 (1911); George v. Shreveport Cotton Oil Co., 114 La. 498, 38 So. 432 (1905); Penn v. Inferno Mfg. Co., 199 So. 2d 210, 230 (La.App. 1st Cir. 1967), cert. denied 251 La. 27, 202 So.2d 649 (1967).

In the present instance, as the previous courts found, the evidence clearly proves a causal relationship between the injuries sustained and the use of the product. The evidence shows that, as found by both of the previous courts, the seven cattle died, shortly after spraying, because of excessive amounts of arsenic in the spray solution containing the defendant’s cattle dip product. Further, the plaintiff’s two then-minor boys doing the spraying also became nauseated as the result of arsenical poisoning, due to such excessive arsenic.

The chief factual issue remains whether the excessive amount of arsenic in the spray solution resulted from a defective batch of the defendant’s dip or was, instead, the result of improper mixture by the boys, then aged 17 and 15 years. (Since the product was purchased in a sealed container and not opened until immediately before use, no issue is now raised as to other intervening or contributing fault.)

The defendant manufacturer’s dip is shown to be an inherently dangerous and deadly product due to its arsenic content (15-20% by weight or volume). However, if properly mixed with water in a ratio of not more than 1 to 127, the dip (if manufactured according to specifications) is not dangerous to cattle and is effective in preventing insect infestation.

The dip was purchased in a five-gallon container. It was used on the afternoon of August 31, 1963. The plaintiffs son testified that he filled one coffee cup (6-8 ounces) with dip. He added this to a 20-gallon drum of water. The evidence shows this to be in a ratio of 1 to 200 or 1 to 235, well within safe limits.

The two brothers commenced spraying the cattle. Approximately an hour later, after they had sprayed seven cattle, signs of distress began to appear in the sprayed animals. They were staggering, falling and going into convulsions. One had died within an hour or so of the spraying and the remainder by the following morning.

Immediately after the incident of August 31, 1963, the plaintiff father buried the dead cattle, the unused cattle dip, and the mixing cup, for fear of further contamination. (By the time of trial in 1969, the site had been covered by highway construction.) The father verified, however, that, when he was called by his boys due to the distress of the cattle, only a trace of dip had been removed from the almost-full five-gallon container.

The evidence of the defendant’s experts shows that the cattle could not have been poisoned by absorption of excessive arsenic, if the dip were mixed with water at the approved or a lesser ratio (such as that to which testified by the plaintiffs) — and if. indeed, the dip in the container contained only the proportion of arsenic specified by the manufacturer.

That is, to counter this proof of-injury following use of the product substantially in accord with directions, the defendants produced two experts to show, on a hypothetical basis, that the cattle could not -die if the product was properly used and if the sample of the product used contained arsenic only in accordance with the intended specifications. This, of course, assumes the very issue before us. The evidence is relevant to its determination but not decisive of it, the issue being: Whether (as the experts assumed) the portion of the product in the plaintiffs’ possession indeed did contain arsenic only in the amount 'of the specifications.

The dip itself was prepared for a usual .use in large-scale governmental programs. However, it was also offered for sale in small-scale operations, such as the present.

One of the defendants’ experts, for instance, was a veterinarian who usually used the product in large dipping vats containing 1500 gallons or so. The dipping solution was then used only after testing, since (as the expert testified) “any arsenical preparation is a dangerous product”. The expert noted that the product with its specified arsenical content would not kill cattle if used properly and in accordance with the directions on the label.

The other expert testifying for the defendants was the veterinary director of the dip manufacturer. He explained the usual rigorous testing procedures used to assure compliance with specifications with governmental standards, noting that tests were conducted on a sample from .each 2700-gallon batch manufactured. He stated, however, that no record could be found of the batch from which the present container was filled at the time of manufacture in 1963, since the records were kept only for three years. (Suit was filed against the defendant manufacturer in 1964.) The director stated that he had no record of any inadequacy of the 1963 batch nor of any complaints arising from its use. (He had not entered the manufacturer’s employ until 1965.)

In evaluating the evidence, the trial court accepted as truthful the testimony of the plaintiffs that they had used only a small proportion of the dip, well within safe limits, in preparing the spray solution.

If such testimony is correct, then the plaintiff’s sons had applied the dip substantially in accordance with the manufacturer’s directions. The plaintiff’s son had stirred the mixture thoroughly. Although it was a hot day, there is no evidence that the cattle were heated or had been run.

’ Under these circumstances, by reason of the trial court’s evaluation of the testimony of the plaintiffs as truthful and credible, the plaintiff has made out at least a prima facie case that the cause of the cattle’s death and of his boys’ sickness was excessive arsenic in the batch of the manufacturer’s dip purchased by them: For, if the plaintiff’s sons had prepared the spraying-solution in the manner described, the cattle would not have died from such normal spraying, if the dip had contained only the normal amount of arsenic. Under these circumstances, the most reasonable hypothesis for the cause of the cattle’s death is an excessive amount of arsenic in the portion of the dip received from the manufacturer; for otherwise the cattle would not have died.

In this civil case, the plaintiffs’ burden is to prove causation by a preponderance of the evidence. This burden may be met either by direct or, as in this case, by circumstantial evidence. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971); Naquin v. Marquette Cas. Co., 244 La. 569, 153 So.2d 395 (1963).

As we stated in the latter decision, 153 So.2d 397: “Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation.”

In the present case, the plaintiffs have met this burden by evidence found credible by the trier of fact. They have showed that the dip was used as the manufacturer must reasonably have anticipated, that it killed the cattle, and that the most probable reason it killed the cattle was an excessive amount of arsenic in the small portion of the dip utilized to prepare the spray solution.

The defendants have not produced evidence that the portion of the dangerous dip was manufactured properly. The manufacturer did not produce evidence that the batch of the dip had contained the proper proportion of arsenic, although, of course, its witnesses do testify that the cattle should not have died if the spraying-mixture was properly prepared (if the dip contained only the arsenic of the specifications).

We might briefly dispose of the intimations of fault offered by the defendant: That the solution was stirred with a stick instead of with a plunger and that the cup of dip may have been poured into the can before, instead of after, the 19-20 gallons of water, is immaterial in view of all the evidence. The solution was thoroughly stirred before being applied. All seven cattle died through the use of almost all of the 20-gallon spray mixture: (That is, if improper mixture had caused an unusually heavy concentration of arsenic in one portion of the 20-gallon mixture, then only the cow or so on which this concentrated portion of the spray had been used would have been affected, not each and every one of them.)

Likewise, the suggestion that untoward effects were produced by the spraying being done on a hot August day is not impressive. It is based upon one of the numerous directions ¹ as to use of the product, designed (according to its wording) to avoid “a burning of the skin”. Nothing on the label indicated that the cows will die if sprayed on such a day.

There is further no evidence that the cattle were tired or unduly heated before spraying. The boys, on foot, drove the cows from a ten acre pasture to a holding pen. Then the cows were brought, one at a time, from the pen to the shed where they were sprayed in the shade, then released to another small pasture with shade trees and a water trough.

Since the plaintiffs have established by circumstantial evidence that the most probable cause of their damages was the improper arsenic proportions and preparation of the dip by the manufacturer, we affirm the trial court’s finding that the plaintiff has proved liability by a preponderance of the evidence. The record likewise justifies the trial court’s award of damages ($2,650 for loss of the animals, $360 for veterinary and medical expenses, $100 to each boy as compensation for very temporary nausea and physical distress).

Accordingly, for the reasons assigned, we reverse the judgment of the court of appeal which dismissed this suit, and we reinstate and affirm the judgment of the trial court awarding the plaintiffs damages in the amounts shown, with legal interest. All costs of these proceedings are assessed against the defendants-appellants-respondents.

Court of Appeal judgment set aside, trial court judgment reinstated and affirmed.

1 . The label direction in question is as follows : “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.”

The evidence shows that the reason for watering cattle is that, when a dipping vat is used and the cattle are thirsty, they may drink from the dipping vat. The evidence does not show that, if the dip had contained only the specified concentration of arsenic, the application of it to cattle on a hot day would have caused serious effects.