WADDELL v AMERICAN BREEDERS SERVI
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No. 12237 IN THE SUPREME COURT OF THE STATE OF MONTANA 1972 GEORGE WADDELL, P l a i - n t i f f and R e s p o n d e n t , -iMERICAN BREEDERS SERVICE I N C . , a corporation, Defendant and A p p e l l a n t , Appeal. from: District Court of t h e S i x t e e n t h J u d i c i a l . District, Honorable A. B. M a r t i n , J u d g e p r e s i d i n g . Counsel. of Record : For Appellant : L u c a s , J a r d i n e & Monaghan, Miles C i t y , Montana. Thomas M. Monaghan a r g u e d , Miles C i t y , Montana. F o r Respondent : Gene H u n t l e y a r g u e d , Baker, Montana. Submitted: Decided : O c t o b e r 20, 1972 JAE117 1973 M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e Court. This i s an appeal from a jury v e r d i c t i n favor of p l a i n t i f f i n an a c t i o n t o recover damages brought i n t h e d i s t r i c t c o u r t of t h e s i x t e e n t h j u d i c i a l d i s t r i c t , county of Custer. Defendant moved f o r a judgment notwithstanding t h e v e r d i c t and f o r a new trial. Both motions were denied. H e r e i n a f t e r , p l a i n t i f f George Waddell w i l l be r e f e r r e d t o a s Waddell, and defendant American Breeders Service, Inc. w i l l be r e f e r r e d t o a s ABS. Waddell i s a c a t t l e rancher operating i n t h e Pine H i l l s , e a s t of Miles City. I n 1966, he had b u i l t up a herd of some 200 t o 250 head of cows and some 100 t o 150 y e a r l i n g s i n a calf-cow operation. He became i n t e r e s t e d i n t h e ABS a r t i f i c i a l insemina- t i o n program through d i s c u s s i o n s with B i l l Stewart, t h e A S B representative i n that area. He was t o l d by M r . Stewart t h a t i f he used t h e ABS s e r v i c e he would have a v a i l a b l e b e t t e r b u l l s , t h a t he would g e t bigger and more uniform c a l v e s ; t h a t such s e r v i c e would be a s s u c c e s s f u l a s n a t u r a l s e r v i c e ; t h a t such s e r v i c e would be j u s t a s cheap; and t h a t he could g e t 70% s e r v i c e during t h e f i r s t h e a t period and should g e t 70% c a l v e s . During t h e 1966-67 w i n t e r , Waddell e n r o l l e d i n a school held by A S a t Miles C i t y , where he learned how t o s u c c e s s f u l l y B a r t i f i c i a l l y inseminate h i s herd. $100. The c o s t of t h e course was A t t h e school he was given a manual e n t i t l e d "American Breeders Service A 1 Manual--Management Manual". This book was introduced a s an e x h i b i t and considerable testimony was introduced by reading from t h e manual headings such statements a s : "The maximum use of outstanding b u l l s " ; Improved cow herd"; II " ~ r e a t l yincreased uniformity"; "Carcass q u a l i t y improvement1'; and "Under good management most o p e r a t o r s r e p o r t 80 t o 90 percent". t h e manual t h e following was read i n t o t h e record: From "The range i n h e a t d e t e c t i o n l e v e l s reported around t h e country shows a r e l a t i v e l y wide v a r i a t i o n . Under good management most operat o r s r e p o r t 80 t o 90 percent d e t e c t i o n r a t e s f o r f i r s t s e r v i c e . Assuming a 70 percent conception t h i s percentage of cows s e t t l e d a f t e r one c y c l e compares very favorably with n a t u r a l s e r v i c e averages under s i m i l a r c o n d i t i o n s . "* * * i t would be j u s t a s cheap o r cheaper than using n a t u r a l s e r v i c e . I t A s p a r t of t h e schooling Waddell was urged t o purchase frozen semen from A S f o r t h e s e reasons: B 1. Maximum use of outstanding b u l l s . 2. I n c r e a s e t h e uniformity i n h i s c a l f crop. 3. An improved cow herd. 4. Carcass q u a l i t y improvement. 5. Improved herd records. 6. Better health protection f o r h i s livestock. 7. B e t t e r p r o t e c t i o n a g a i n s t i n h e r e n t d e f e c t s with r e s p e c t t o h i s livestock. 8. F a c i l i t a t i o n of crossbreeding. 9. A cheaper method of breeding than n a t u r a l s e r v i c e . A s a r e s u l t of t h e school and waddell's i n t e r e s t i n t h e program, i n t h e s p r i n g of 1967 h e purchased 40 ampules of Black Angus semen from A S b u l l Skylandmere, t o use f o r t h e 1967 B breeding season. Waddell's c a t t l e were Hereford and t h e reason he gave f o r purchasing Black Angus semen was t o crossbreed and thereby g e t a black c a l f with e i t h e r a white o r brockel f a c e , He maintained t h a t by using t h i s system h e could t e l l those c a l v e s t h a t came from t h e a r t i f i c i a l insemination from those s i r e d by h i s own Hereford b u l l s , For t h e 1967 breeding season Waddell picked a t random from h i s herd about 50 cows t o be inseminated. Waddell performed t h e insemination work, put t h e cows i n t o a s e p a r a t e p a s t u r e and put a clean-up b u l l i n with them. A s a r e s u l t of t h i s f i r s t year program, h i s 1968 c a l f crop was a l i t t l e above 70% and h e was w e l l s a t i s f i e d with t h e program. For t h e 1968 breeding season,Waddell placed another o r d e r f o r f o r t y ampules of frozen semen from t h e same b u l l , Skylandmere. That year instead of a random selection, Waddell picked his best cows and the earliest calfing cows. 55 of these cows were picked and inseminated. All were Herefords. In 1968, the insemination work was done by Kelly Waddell, plaintiff's son, hereinafter called Kelly. Kelly also had some cattle and during the year 1967-68 he had become interested in the artificial insemination program. He attended the same school his father had attended during the 1967-68 session. When Waddell ordered his 40 ampules from Skylandmere, Kelly put in an order for 16 ampules of semen from the bull Leader, a Shorthorn bull. Kelly and his father conducted their artificial insemination program together with Kelly doing the work and Waddell riding herd and observing. The semen they purchased from ABS came in a jug or refrigerator, where it was kept frozen by nitrogen. Kelly testified, as did Waddell from his observation, that the caws were uniformly inseminated; that no special problems arose in the process; and that the weather factor was good, Bill Stewart, the ABS representative, was present during part of the work to see if Kelly was doing it correctly and Stewart helped with 6 to 8 cows. Upon completion of the insemination, the cows were turned into a separate pasture where Waddell had a clean-up bull to cover those cows where artificial insemination did not take. Several weeks later Waddell noted that the clean-up bull was over used, so he put in another bull. When the spring of 1969 came, Waddell was faced with a crop failure. Of the 4 ampules of semen used, he got only 3 black 0 calves; as against the 1968 crop of 70% he had but 7% in 1969. Yet, Kelly's cows, impregnated at the same time as Waddells, resulted in: 12 heifers were impregnated; 1 died, 3 were sold as bred heifers, and of the remaining 8 heifers 6 were crossbred. A 75% result. So, the two herds handled under exactly the same conditions by the same inseminator resulted in Waddell getting a 7% calf crop, and Kelly a 75%. The one difference being that Kelly had semen from a different bull. Waddell n o t i f i e d B i l l Stewart i n t h e s p r i n g of 1969 of h i s c a l f crop f a i l u r e and Stewart immediately contacted A S B o f f i c e s t o check what might have happened. A t t h e r e q u e s t of A S stewart had Waddell c o l l e c t a l l t h e used ampules. B Each ampule had a code mark t h a t i d e n t i f i e d i t a s belonging t o a c e r t a i n b u l l , which aided A S t o t r a c e t h e semen t o t h e exact B d a t e of c o l l e c t i o n , processing and shipping. Shipments of semen from t h e same b u l l , with t h e same code, were t r a c e d t o o t h e r cattlemen and some of i t was recovered f o r t e s t i n g . T e s t s were made by t h e ABS l a b o r a t o r y and by D r . P e t e r Burfening, an a s s i s t a n t p r o f e s s o r of physiology i n t h e animal science department of Montana S t a t e University. H i s t e s t f i g u r e s corresponded favorably with t h e t e s t s conducted by t h e ABS l a b o r a t o r y i n t h a t they found t h e frozen semen from 35% t o 40% motile. t e s t s showed a 29% m o t i l i t y f a c t o r . The A S B Both D r . Burfening and D r . B a r t l e s s , v i c e - p r e s i d e n t of ABS, t e s t i f i e d t h a t t h e s e percentages were w i t h i n acceptable standards. Defendant s e t s f o r t h f o u r i s s u e s f o r c o n s i d e r a t i o n : 1. Whether t h e d i s t r i c t c o u r t e r r e d i n r e f u s i n g t o d i r e c t a v e r d i c t i n favor of defendant and a g a i n s t p l a i n t i f f a t t h e c l o s e of p l a i n t i f f ' s testimony? 2. Whether t h e d i s t r i c t c o u r t e r r e d i n r e f u s i n g t o allow defendant t o p r e s e n t t h e testimony of Jack M. Brooks and Louie Petrie? 3. Whether t h e r e were e r r o r s i n law occurring a t t h e t r i a l and excepted t o by defendant, which prevented defendant from having a f a i r and i m p a r t i a l t r i a l ? 4. Whether t h e d i s t r i c t c o u r t e r r e d i n giving and r e f u s i n g certain instructions t o the jury? The f i r s t i s s u e a l l e g e s e r r o r i n t h e t r i a l c o u r t ' s r e f u s a l t o d i r e c t a v e r d i c t i n defendant's favor a t t h e c l o s e of p l a i n t i f f ' s case on e i t h e r of p l a i n t i f f ' s t h e o r i e s of express o r implied warranty. , This Court i n Mueller v. Svejkovsky, 153 Mont. 416, 420, 455 P.2d 265, h e l d : It O an appeal from a motion denying a d i r e c t e d n v e r d i c t t h e r e a r e t h r e e r u l e s which apply. (1) The evidence introduced by t h e p l a i n t i f f w i l l be considered i n t h e l i g h t most favorable t o him. (2) The conclusion sought t o be drawn from t h e f a c t s must follow a s a matter of law. (3) Only t h e evidence of t h e p l a i n t i f f w i l l be considered." Where t h e r e i s s u b s t a n t i a l evidence t o support t h e t r i a l c o u r t ' s f i n d i n g s a t t h e conclusion of p l a i n t i f f ' s c a s e , and t h e r e i s no c l e a r preponderance a g a i n s t i t , t h e c o u r t ' s r u l i n g w i l l n o t be d i s t u r b e d on appeal. Spencer v. Robertson, 151 Mont. 507, Defendant argues t h a t even i f w e f i n d t h e t r i a l c o u r t was n o t i n e r r o r , t h a t t h e i s s u e must be resolved i n i t s favor due t o t h e f a c t t h e r e was a f a i l u r e t o timely n o t i f y t h e defendant. A s we view defendant's argument, p l a i n t i f f should have n o t i f i e d defendant when he found h e had an overworked b u l l , n o t some t e n months l a t e r when h e found he had a 7% c a l f crop and n o t t h e 70% of t h e year before. W f i n d no merit t o t h i s argument. e Nor can w e accept defendant's argument t h a t a s a matter of law p l a i n t i f f d i d n o t give n o t i c e of a breach of warranty u n t i l a f t e r he should have discovered i t , Defendant submitted an i n s t r u c t i o n t h a t allowed t h e j u r y t o consider whether t h e n o t i c e was adequate. Court's i n s t r u c t i o n No. 12 reads: " A seller i s n o t l i a b l e f o r a breach of warranty u n l e s s t h e buyer gave him n o t i c e of such breach w i t h i n a reasonable time a f t e r t h e buyer knew, o r a s a reasonable person ought t o have known of t h e a l l e g e d breach of warranty. What amounts t o a reasonable time depends upon t h e circumstances and t h e kind of product involved. It Notice may be o r a l o r i n w r i t i n g ; no p a r t i c u l a r form of n o t i c e i s required. It merely must inform t h e S e l l e r of t h e a l l e g e d breach of warranty and t h e buyer's i n t e n t i o n t o look t o him f o r damages. Whether t h e buyer gave t h i s information t o t h e S e l l e r and i f so whether he a c t e d w i t h i n a reasonable t i m e i n t h i s c a s e , i s f o r you t o determine, 11 I n e f f e c t , defendant wants i t two ways. A t t r i a l ABS asked f o r a n d ' g o t an i n s t r u c t i o n asking t h e jury t o r u l e on t h e n o t i c e i n i t s favor, and when t h e j u r y d i d n o t , i t asks t h i s Court t o r u l e t h a t t h e i n s t r u c t i o n should never have been given. This w e cannot do, f o r t o do so would allow defendant t o p u t t h e trial court in error on its own instruction. We have held that where a party fails to make an objection to an instruction, it is bound by it. Seder v. Peter Kiewit sons' Co., 156 Mont. 322, 479 P.2d 448; Nelson v. C & C Plywood Corp., 154 Mont, 414, 465 P. 2d 314, 39 ALR3rd 893; 5 C.J.S. Appeal & Error $ 1514; 5 Am Jur 2d, Appeal & Error $ 618. Having been so instructed, it became a jury question as to whether or not the notice was adequate timewise. The Fourth Circuit Court of Appeals in Gober v. Revlon Inc., 317 F.2d 47, construing a California statute similar to our statute on notice, ruled that a six months delay in giving notice was not unreasonable as a matter of law. See also: Maecherlein v. Sealy Mattress Co., 145 C.A.2d 275, 302 P.2d 331. ~ontana's statute, section 87A-2-607, R.C.M. 1947, provides in pertinent part: "Where a tender [of goods] has been accepted "a the buyer must within a reasonable time after () he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy". This being a jury question and the jury having found proper notice was given when Waddell found he had only a 7% calf crop in the spring of 1969, we find no error. Defendant relies on Whittington v. Eli Lilly and Company, (D.C. W.Va. 1971) 333 F.Supp. 98, to support its position that there is no express or implied warranty in this case. Whittington is not comparable on the facts. There, a woman purchased birth be control pills which were claimed to / "virtually 100% protection". They were not 100% effective, and she brought the action on a breach of warranty theory against the drug manufacturer. The uncontradicted proof showed a pregnancy rate of women taking the pill never exceeded 1.9 pregnancies per 100 women on the pill. The court held this percentage provided "virtually 100% protection". Too, in Whittington, the action was brought by a remote purchaser apparently on a common law basis. Here, the action is brought under the Uniform Commercial Code, sections 87A-2-313, 314,315, R.C.M. 1947, by a purchaser directly from the seller, In the instant case, warranties made to Waddell were not met, nor were those implied warranties of merchantability and fitness met. Prior to using artificial insemination Waddell got a 95% calf crop via natural service, In 1967, he got a 70% calf crop with artificial insemination; in 1968 he got a 7% calf crop using semen from the same bull, under almost identical conditions. The only logical inference is that something was wrong with the semen purchased in 1968 from ABS by Waddell. ~efendant's second issue concerns the trial court's refusal to allow the testimony of Louie Petrie and J.M. Brooks. We find no error in the court's ruling. The testimony did not bear directly on the specific issues presented, Mr. Brooks, a rancher living at Cohagen, Montana runs a cow-calf operation of between 300 and 400 head. He had used the artificial insemination program for some five years, and kept rather complete records of his breeding program. Defendant sought to introduce his testimony to show the management techniques used in his artificial insemination program, the importance of the inseminator, and the importance of keeping records. Defendant argues that such testimony goes directly to the issue because of the fact that Waddell kept no records, contrary to instructions given at the school; and that this was a primary cause or factor in Waddell's calf crop failure. Too, Waddell had testified that he knew at least 75% of his cattle by sight and defendant desired to get from ~rooks'testimony whether that 75% identification was common. Also, Brooks had used semen from Skylandmere in 1968 with successful results. The court ruled that Brooks could testify if defendant could establish that Brooks used Skylandmere's semen labeled 804K, could identify it, and got calves. Apparently this could not be established; defendant withdrew Brooks as a witness, The testimony of Petrie, a rancher who also used ~lcylandmere's semen in 1968, was offered for the same reasons that ~rooks' testimony was offered and was not allowed, in that such testimony did not relate to the facts of this case. We find no error. ~efendant'sthird issue conerns whether or not defendant received a fair trial, This issue reargues issue No. 2 and further argues that the court erred in allowing Kelly Waddell to testify as to why he got over a 70% calf crop, while his % father got only 7 . Kelly was asked: "Mr. Waddell, do you know of anything that could account for the difference between the percentage of calf crop you received from cattle, and the percentage of calf crop your father received, other than faulty semen? " Objection was made that the question called for a conclusion of the witness and invaded the province of the jury, The objection was overruled, the court stating: "~ou'llhave an opportunity in cross-examination to explore his reasons,11 Kelly then testified: "I don't see no reason to. The semen was just bad." Defendant argues that this dealt with one of the main issues and was prejudicial. We find this not so. Defendant fully cross-examined Kelly, noted for the jury's consideration that he was not a licensed inseminator; that even though he had attended the school he did not have a manual (he used his father's) and that he had only read part of the manual. All of this was before the jury, plus the fact that Kelly was supervised, at least for several head, during the insemination process by ABS representative Bill Stewart, We find no error. The final issue concerns the trial court's giving certain instructions and its failure to give several of defendant's offered instructions, Defendant argues the court's failure to give several of defendant's instructions prevented the jury from being fully and properly instructed on the law applicable to the case, We have carefully studied the instructions given and those refused and find no error. Several of defendant' s instructions were refused as being repetitious and properly so. The court properly instructed the jury on implied warranty and express warranty. Reading all of the court's instructions together we find the jury was properly instructed on the law applicable to the case. Defendant takes exception to the court's instruction on damages. Court's Instruction No. 20 reads: "Every person who suffers detriment from the unlawful act or omission of another person may recover from him a compensation therefor in money which is called damages. In this case detriment is the loss or harm suffered. The measure of damages is the amount which will compensate for all the detriment proximately caused thereby hereinbefore defined, whether it could have been anticipated or not. II This is an approved W I G instruction on damages and we find no error. Judgment of the trial court is affirmed. L ' / z ! h 4 W + $ate Justices Assoc - & 4
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