Wilson v. EZ Flo Chemical Company ( 1972 )

189 S.E.2d 221 (1972) 281 N.C. 506

Douglas O. WILSON, Plaintiff,
v.
E-Z FLO CHEMICAL COMPANY, a Division of Growers Services Corporation, Defendant and Third Party Plaintiff,
v.
UNIROYAL CHEMICAL, a Division of Uniroyal, Incorporated, Third Party Defendant.

No. 119.

Supreme Court of North Carolina.

June 16, 1972.

Chambliss, Paderick & Warrick, by Joseph B. Chambliss, Clinton, for original defendant and third party plaintiff.

Smith, Anderson, Blount & Mitchell by John L. Jernigan, Raleigh, for third party defendant.

HIGGINS, Justice.

The facts in this case are not in dispute. The evidence is free of any contradiction. The parties admit the plaintiff, a truck farmer, properly prepared his soil and on March 19, 1969, planted eighteen and one-half acres of squash. That day he consulted Mr. Daughtry, an agent of E-Z Flo, stating he needed a pre-emergent herbicide to kill weeds and grass and requested that Mr. Daughtry recommend and supply him with a chemical suitable for immediate use on yellow squash.

E-Z Flo Chemical Company was not an agent of Uni royal, but carried Alanap and another herbicide in stock. Mr. Daughtry recommended Alanap and immediately delivered two thirty-gallon sealed drums to the plaintiff.

The grower opened the drums, followed directions as to the dilution with water, and on March 20 sprayed his entire crop with the exception of four rows near the middle of the field. The crop, except the four rows, turned out to be a total loss. The four rows produced a normal crop. The evidence points to Alanap as the culprit.

The evidence is undisputed that at the time the original defendant (present third party plaintiff) recommended and sold the Alanap, it had in its possession the third party defendant's sales and use manual which contained the following: "Do not use ALANAP on vine crops of any kind when growing conditions are very adverse; namely in early spring when weather is cold and wet." It seems obvious that had the plaintiff known of the warnings, he would not have purchased Alanap, even though E-Z Flo recommended it, for use on the last day of winter. He knew in all probability there would be cold and wet weather conditions sometime after March 20. The warning was sufficient notice to those who saw it that Alanap should not be used in Piedmont, North Carolina, as early as March. According to the stipulations, on eight days in the ensuing two and one-half weeks the temperature was in the thirties or below. On three days it was below freezing.

The evidence indicates at the time of its use by the plaintiff, Alanap was a relatively new product. Obviously, any substance which is harmless to vine crops, but deadly as to grasses and weeds, must be treated with a degree of respect and used cautiously. Warning against use when weather is cold and wet should be heeded. In such weather it will turn killer on vine crops as well as on weeds and grasses. The dealer, E-Z Flo, recommended and sold without caution. It knew, or should have known, whether any warnings were placed by the manufacturer on the sealed containers. It knew, or should have known, that the warning as to the dangers of use in cold wet weather was not attached to the containers and, therefore, unknown to the grower. The dealer knew the Alanap was to be applied on March 20 and the grower was relying on the recommendation.

Actually, no one is able to tell with any degree of certainty what next week's weather will be, especially beginning on March 20. The common sense of the warning is this: Alanap should not be used on vine crops until the danger of cold wet weather is over. In no event is the danger over in Sampson County, North Carolina, until somewhat later than the last day of winter.

The grower did not select Alanap. He applied for a pre-emergent herbicide which would kill weeds and grasses, but would not harm squash. He accepted Alanap on the recommendation of E-Z Flo which knew of the dangers, but failed to acquaint the plaintiff with them.

The trial court properly concluded from the evidence that the grower is entitled to recover from E-Z Flo. The decision of the Court of Appeals as to E-Z Flo's liability to the plaintiff is affirmed. See Branco Eastern Company v. Leffler (Colo.), 482 P.2d 364.

The stipulation and the evidence being free from contradiction, the conclusions to be drawn are matters of law. The conclusion of law from the evidence is that the distributor had ample notice of the warning which was a limitation (as between the manufacturer and the dealer) on the manufacturer's implied warranty of fitness. It knew the containers which it delivered did not disclose any warning of danger in the use of Alanap. At the same time it knew, or should have known, that Alanap would or might turn killer on vine crops, depending on the weather. As between the distributor who knew of the danger and failed to warn the grower, and the manufacturer who had amply warned the distributor of the danger, the primary liability must rest on the distributor.

The trial court and the Court of Appeals based decision on our cases which hold: "The supplier of a chattel (especially food or drink for human consumption) is subject to liability for injury in its use by another when the supplier knows or should know that its use is or is likely to be dangerous and when there is no reason to believe that the user will realize this, if, further, he (the supplier) fails to use reasonable care to warn." Corprew v. Geigy Chemical Corp., 271 N.C. 485, 157 S.E.2d 98. (Citing many cases.) The basis of liability on the part of the manufacturer and the distributor is the express warranty of fitness to the ultimate consumer appearing on the container, or the implied warranty when the product is supplied for a known use. Simpson v. American Oil Co., 217 N.C. 542, 8 S.E.2d 813.

Where the retailer purchases personal property from the manufacturer or wholesaler for resale with implied or express warranty of fitness and the retailer resells to the consumer with the same warranty and the retailer has been compelled to pay for breach of warranty, he may recover his entire loss from the manufacturer. Perfecting Service Co. v. Product Development and Sales Co., 261 N.C. 660, 136 S.E.2d 56; G.S. §§ 25-2-314 to 25-2-315. The foregoing rule is not applicable as between the manufacturer who warned and the distributor who has been warned, but fails to pass on the warning to the user. E. I. Du Pont De Nemours & Co. v. Ladner, 221 Miss. 378, 73 So. 2d 249.

This is not a case of the manufacturer's liability to the ultimate consumer. Here involved is the liability of the manufacturer who gave ample warning to the distributor who failed to pass it on to the consumer. The distributor selected the product, unqualifiedly recommended it, and sold it for its immediate use (March 20). In the absence of express warranty on the part of the manufacturer, its implied warranty of limited fitness, as between the manufacturer and the distributor, placed the primary responsibility on the distributor to notify the user of the limitation on fitness.

The manufacturer in this case serves a wide market area in which weather conditions vary greatly. To devise a weather warning suitable to all sections and attach it to each container would present some problem to the manufacturer. In this case Uni royal attempted to solve the problem by issuing to the distributor a detailed marketing manual in which the uses and dangers of Alanap are explained in detail, trusting to the distributor to warn any grower known to contemplate use so early in the season. Surely the original defendant, a chemical company, should not recommend and sell to an unsuspecting grower a product without explaining the dangers of which it had knowledge. The grower trusted E-Z Flo which in turn relied on warm, dry weather in March.

The record fails to disclose any factual basis which would justify the court in requiring the manufacturer (who gave notice) to reimburse the distributor (who failed to give notice), which failure in all likelihood caused the plaintiff's loss. In a somewhat similar case, the Supreme Court of Mississippi held the manufacturer was not liable to the distributor. E. I. Du Pont De Nemours & Co. v. Ladner, supra. This is not a case involving the sale of food or drink for human consumption which requires a high degree of responsibility on the part of the packager to the consumer. Terry v. Double Cola Bottling Co., 263 N.C. 1, 138 S.E.2d 753. The manufacturer's implied warranty is that the product is merchantable. Uniform Commercial Code, G.S. 25-2-314 to 25-2-315. The product here involved met the requirement of merchantability. The caution against an out of the ordinary use does not render it non-merchantable.

The decision of the Court of Appeals holding the manufacturer liable to the distributor is without support in the record. The decision of the Court of Appeals in that respect is

Reversed.