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decided: October 11, 1968.


Appeal from judgment of Court of Common Pleas of Washington County, May T., 1963, No. 706, in case of J. G. Kassab et ux. v. Central Soya, McMillen Feed Division of Central Soya, and John Pritts, trading as Canonsburg Milling Company.


Adolph L. Zeman, with him Robert L. Zeman, and Zeman and Zeman, for appellants.

Wray G. Zelt, III, with him Zelt and Zelt, for appellee, manufacturer.

Charles C. Keller, with him Peacock, Keller & Yohe, for appellee, seller.

Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Cohen.

Author: Roberts

[ 432 Pa. Page 219]

Appellants, man and wife, are engaged in the business of breeding Charolais cattle. On December 14, 1961 they placed an order for cattle feed with defendant-appellee, Pritts. This feed was to be blended by

[ 432 Pa. Page 220]

Pritts according to a formula previously used by appellants for their cattle and previously blended by Pritts. One of the ingredients in appellants' formula was a commercially packaged feed supplement known as "Cattle Blend," manufactured by defendant-appellee Central Soya. Pritts blended the feed supposedly according to appellants' formula whereupon it was fed to Mr. and Mrs. Kassab's herd. Shortly thereafter the cows in the herd began to abort and the breed bull began behaving in a manner which tended to cast doubt upon his masculinity. He was eventually pronounced sterile.

Fearing that the feed supplement used in appellants' formula had somehow caused the malfunctioning of the Kassab's cattle, a chemical analysis was made which revealed the presence of a drug known as "stilbestrol" in the feed, and more particularly in the feed supplement, Cattle Blend. Although appellees contest this fact the trial judge, sitting without a jury, found on the basis of competent evidence that stilbestrol was in the feed, a finding which this Court will not disturb on appeal. It is conceded by all concerned that stilbestrol is customarily added to feed for beef cattle since it has a tendency to make the cattle gain weight. However, it is also conceded that stilbestrol is a synthetic hormone which tends to accentuate the female characteristics in animals, inducing heat and abortions in cows and sterility in bulls. Accordingly, feed containing this drug is not recommended for breed cattle. In fact, a federal regulation requires that feed containing stilbestrol be so labeled and that this label state, inter alia, that the feed is not to be fed to breeding or dairy animals. 21 Code of Federal Regulations § 121.241 (1964). It is finally conceded that no such label appeared on the bag of Cattle Blend used by Pritts in compounding appellants' feed formula. Obviously,

[ 432 Pa. Page 221]

Central Soya mistakenly packed its stilbestrol added feed supplement into a bag supposed to contain a supplement without stilbestrol. Therefore, although appellants ordered feed without stilbestrol, and although Pritts thought that this is what he had mixed, in fact the feed sold to appellants did not conform to the mixture ordered.

Alleging (1) that the stilbestrol in the feed caused their cows to abort and their bull to become sterile; and (2) that community knowledge of what the herd had eaten resulted in appellants' inability to sell their stock except at beef prices thus greatly diminishing the value of appellants' property, Mr. and Mrs. Kassab commenced this action in assumpsit against Pritts and Central Soya. The case was heard before a judge sitting without a jury. At the conclusion of the testimony on the issue of liability for breach of contract, the court and counsel agreed that no written opinion need be filed, but rather that the judge could announce his decision on liability from the bench, thereby dispensing with the need for hearing testimony on damages should the court find for defendants. Accordingly, the court announced a verdict for defendants, and orally (later in a written opinion) stated that, although it found that stilbestrol was present in the feed contrary to the formula ordered, nevertheless there should be a verdict for defendants because the court believed defendants' expert who testified that the amount of drug in the feed could not have caused the abortions and sterility complained of. This appeal followed.


Appellants first argue that the court below erred in announcing its decision from the bench and in filing an opinion without conclusions of fact or law. It

[ 432 Pa. Page 222]

    is also contended that the court was required to hear all of the testimony, including evidence on damages, before reaching any decision. We are unpersuaded that either of these acts by the court constitutes reversible error.

The record clearly reveals that the trial judge was well aware of the rules governing trials without a jury. At the conclusion of the evidence on liability, he summoned both counsel to side bar and discussed with them the possibility of dispensing with the requirements of the Act of April 22, 1874, P. L. 109, § 2, as amended, 12 P.S. § 689, that the decision of the court be in writing. The court first properly pointed out that, from a formal viewpoint, it could not resort to Pa. R. C. P. 1048 which does allow an oral decision to be rendered from the bench because Rule 1048 applies only to trespass actions. However, while not being able to invoke Rule 1048 on its own motion, the court assumed that, with the consent of both counsel, there would be nothing to prevent it from waiving the requirements of the Act of 1874 and, in fact, using a Rule 1048 type procedure. To this both lawyers readily agreed. Now, the losing party below, while candidly admitting to this Court that he consented to everything done in this respect by the trial court, urges us to reverse for failure to comply with the Act of 1874. It is appellants' contention that regardless of what they might have consented to, the act is mandatory and, by requiring a formal written opinion, obviously demands that all evidence, on liability and damages, be heard.

Such a contention evokes little sympathy from this Court. We are not here dealing with a constitutional right, a waiver of which is always approached with the utmost caution. Instead, this is a civil action wherein both parties are represented by counsel. That

[ 432 Pa. Page 223]

    these lawyers, along with the trial judge and in open court, agreed to waive the formal requirements of a procedural statute in order to make the trial proceed in a more expeditious manner cannot form the basis for an attack upon that court's decision by the litigant now unhappy with his choice. To be sure, we have found no authority whatsoever for holding the Act of 1874 mandatory when both parties agree to relax its provisions. Cf. Pittsburgh's Petition, 243 Pa. 392, 90 Atl. 329 (1914). Moreover, as for appellants' argument that the court erred in failing to file an opinion with separate findings of fact and conclusions of law, the Act of 1874 recites that an opinion of this type need not be filed unless requested by the parties. No such request was ever made.

Appellants next attack the procedure of this litigation on the ground that the Act of April 22, 1874, P. L. 109, § 1, 12 P.S. § 688 was not properly applied. This section requires that a suit may be tried without a jury only if the parties so stipulate by agreement filed "in the proper office where such suit is pending." It appears that, in the present case, shortly before the court announced its verdict the judge discovered that no such agreement had been filed. Again, both parties agreed to read the required stipulation into the record at that point in the trial. This was done and appears of record at page 712a. Appellants now maintain that the entire suit must be retried because the agreement was not submitted to the court before trial. For the same reasons set forth in the preceding paragraph this contention is without merit. This Court said of a consensual failure to comply with practically identical language in Article 5, section 27 of our state Constitution: "There was no formal agreement for such submission [to a judge sitting alone] and waiver [of a jury] filed in this case; but to allow

[ 432 Pa. Page 224]

    a party at whose instance a proceeding [trial without jury] has been appointed, and who has taken advantage of it by pursuing it, to afterwards defeat it, against the wishes of the opposing party, by alleging his own default in the matter of filing a formal written agreement, would be to suffer the strict letter of the law to overcome its clear purpose." Pittsburgh's Petition, supra at 395-96, 90 Atl. at 330. Considering that the Pittsburgh Court was interpreting a state Constitutional provision and nevertheless denied ...

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