*1 point, points jury Under this defendant also out that the returned verdict favor of defendant Elanco Products indemnity on the but awarded no It question, damages. suggests this is evidence that jury was confused its delibera However, we tions. note from the settled record that of the ver dict jury by forms submitted to the there was no form which it could find in third-party favor of Products on the com Elanco only The plaint. jury that it could do under the cir thing cumstances; signed foreman the form verdict for the defend defendant, “$0” ant third-party put space but Further, all was damages. doubt at resolved special where the interrogatory product found that Treflan was not defective. We think that acted con sistently in light verdict forms were submitted.
The judgment of circuit court is affirmed. COLER, Justices,
WINANS and WOLLMAN and al., FUL WIDER et v. FLYNN Appellants
(243 11677. Opinion *2 Davis, Gary E. Gregory, argued the cause appellants. for Johnson, Johnson, With him on the brief was Charles Rick of Ekhmd, Gregory, Johnson for and appellants. Jr., Winner, Day, William F. Day of & Grossenburg, for defendants and respondents.
WOLLMAN, Justice.
Plaintiffs suit defendants brought damages alfalfa seed caused defendants’ plaintiffs’ crop allegedly ap- Parathion, of an insecticide that defendants had plication applied alfalfa in 1973 plaintiffs’ the summer of to control greenbugs. Plaintiffs’ causes complaint alleged of action defendants warranty, theories of breach war- express on of evidence, ranty, all negligence. and At the close of the trial directed a verdict in favor of defendants of breach of and submitted the case allegation express warranty to the on the theories of breach of and as well defendants’ negligence, as on counterclaim for costs of done. The returned a verdict spraying against plaintiffs and in in the full favor of defendants amount of their counterclaim.
Plaintiffs contend that the trial court erred jury. submit their claim of breach of to the opinion we are of the had that he Fulwider testified taken. Plaintiff is well argument his alfalfa for spraying about telephone defendants on the called him defendants informed his response questions, In greenbugs. results, satisfactory with and ahead go defendants to Mr. Fulwider instructed whereupon Flynn, the owner of Defendant Dennis his alfalfa fields. spray spray- he had been testified that Gateway Sprayers, Aerial half years, that approximately approximately business for ing insecticides to control applying consisted of his work spraying of insects, and that since spray he had used Parathion to control greenbugs a recommended insecticide Parathion was *3 was suffi- evidence summarized above We conclude that the claim of breach of warrant the submission of cient to provisions the under the of SDCL to 57-4-33, which that: provides has contracting at the time of
“Where
seller
particular purpose
reason to know
buyer
relying
and that the
is
required
are
goods
to select or furnish suitable
judgment
seller’s skill or
under
is unless excluded or modified
goods,
there
57-4-39,inclusive,
warranty that
57-4-34
an
§§
such purpose.”
shall be fit for
goods
57,
Inc., 83 S.D.
Development,
v. Midwestern
Waggoner
Cf.
also erred
refus
Plaintiffs contend that the trial court
of alfalfa
concerning
production
admit certain exhibits
ing to
fields in 1972 and 1974 and from
Fulwider’s
plaintiff
seed from
years.
during
fields of a fellow renter
those two
adjoining
trial
we conclude that the
admit
these exhibits.
not abuse its discretion
Transit,
Inc.,
WINANS, J., dissents.
WINANS, (dissenting). Justice im- the issue of holding on I affirm the lower court’s would any im- any evidence of warranty. I believe there was do not plied True, concerned. far as the defendants are so plied the defendants informed show that evidence does satisfactory results. There is Parathion with and there is statement was not true this no evidence showed that true. The evidence further it was evidence greenbugs was a insecticide control recommended insecticide apply were hired to this The defendants I the evidence. do alfalfa. This is the extent of crop of warranty. imply evidence is sufficient to that this not believe v. CUNNINGHAM CO., Appellant SURETY WESTERN CASUALTY (243 N.W.2d *4 Opinion