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PRIMROSE v. PHILADELPHIA DRESSED BEEF CO.
October 5, 1965
PHILADELPHIA DRESSED BEEF COMPANY
The opinion of the court was delivered by: VAN DUSEN
This case is now before the court on Defendant's Alternative Motion for Judgment Notwithstanding the Verdict under 50(b) or a New Trial (Document 22) filed after the jury had returned a verdict for plaintiff in the amount of $8,428.23 in this action, based on alleged breach of warranty and, in the alternative, alleged negligence of defendant in supplying alleged unfit animal feed which is claimed to have caused the death of plaintiff's minks.
The jury was entitled to find the following facts, which, except for the words in brackets, are quoted from pages 1-2 of defendant's brief:
"In early June of 1960, the plaintiff purchased approximately two thousand pounds of mink feed from Russell's Feed Company, in Coventry, Connecticut. * * * Delivery [of more than 80 boxes of defendant's frozen animal food] was made [on June 2, 1960] to a Bob Stetson, an employee of Russell's Feed Company, at the defendant's plant [by placing the boxes in a truck owned by Russell Feed Company]. This delivery was made on June 2, 1960, and the shipment consisted of five hundred and twenty boxes, totaling thirteen-thousand pounds. [See P-5]
"The defendant's product was packed in corrugated wax lined boxes which were two and a half inches deep by twenty-four inches long and eighteen inches wide. [Eighty of these boxes were delivered to plaintiff at his mink farm, on June 3, 1960.]
"The plaintiff used the defendant's product as one of the ingredients in a mink food mixture made by him at his ranch. Approximately two weeks after the plaintiff began using the defendant's product, he noticed that some of his animals were dying. These deaths continued for approximately two more weeks, during which time the plaintiff attempted to treat his sick animals by himself.
"In late June of 1960, the plaintiff took some bodies of the dead animals to the University of Connecticut for examination. The plaintiff, also, delivered samples of certain of the food products, which he had been using, to the University for analysis.
"During the months of June and July, * * * seven hundred and [one] animals of [plaintiff's] herd died."
Plaintiff's expert testified that (a) he found no barium in the tissue of the minks which he examined since he had no tests in his laboratory to determine the presence of "barium salts in tissue samples" (pp. 24, also 26-32, of Document 21) and (b) insoluble barium (a non-toxic form of barium) would be unresolved in the intestinal tract (p. 25 of Document 21). Although he examined the intestines of the minks (p. 31 of Document 21), he made no mention of finding any barium in them. Soluble barium is "highly toxic" (p. 25 of Document 21). When the plaintiff stopped feeding the minks the defendant's product and administered the antidote prescribed by the doctor, the unusual rate of death among his animals ceased (N.T. 181-5). There was sufficient evidence before the jury to justify it in finding that defendant's product contained soluble barium salt in quantities lethal for minks, particularly since plaintiff's expert testified that he inferred the barium was soluble after assuming that the feed contained 30 parts per million of barium in accordance with Dr. Botsford's testimony.
The trial judge explained to the jury that it was up to them to decide whether they would make this inference or not make it (N.T. 751 and 764-5).
Plaintiff's expert testified (pp. 18-19, 26-28 and 34 of Document 21) that, in his opinion, 29 of 32 minks examined by him died from soluble barium in ...
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