Hanson v. Funk Seeds International

degree degrees crimi- all the the first explained should nal homicide

submitted 150-51, at 1121 104 N.W. Hubbard Clemons, v. (quoting in latter State 274, 1 (1879))(emphasis Iowa N.W. clear. inter supplied). statute is Our To it has been consistent. now pretation of legislative otherwise is to circumvent hold intent. reverse. HANSON, Appellee,

Larry Plaintiff and INTERNATIONAL, FUNK SEEDS Appellant. Defendant 14395, 14405. Nos. Supreme Court of South Dakota.

Argued May 1984. Aug. Decided 1985. 20, 1985. Rehearing Sept. Denied

Timothy Woods, J. Nimick of Fuller, Smith, P.C., Falls, Shultz & Sioux plain- for appellee. tiff and Michael L. Luce Davenport, Evans, Smith, Falls, Hurwitz & Sioux for defend- appellant. ant and HENDERSON, (on Justice reassign- ment).

ACTION appeal by

This is an Funk Seeds Interna- tional, defendant-appellant herein, from a entered on a verdict for $26,253 Hanson, in favor of Larry plaintiff- appellee. We affirm arising this verdict from a suit on breach warranty on the sale of seed corn.'

FACTS approximately Hanson farms

2,500 County, acres Turner South Dako- early ta. spring promotional attended a Funk Seeds meet- ing representatives wherein Funk depicted very Funk’s be high-yielding G-4507 to Thereafter, rep- and based on these resentations, appellee switched his order hybrid from another Funk to G-4507. The seed accepted by was delivered and agent an signed who the deliv- ery receipt appellee’s name. Said deliv- ery receipt part: stated LIMITATION OF WARRANTY AND REMEDY Funk Seeds International warrants are as on tag seeds described bag, subject attached to tolerances established law. THE FOREGOING EXPRESS WARRANTY EXCLUDES WARRANTIES, ALL OTHER EXPRESS IMPLIED, THE OR INCLUDING WAR- RANTY OF MERCHANTABILITY. THERE ARE NO WARRANTIES EXTEND DE- WHICH BEYOND THE SCRIPTION THEREON.

By seed, acceptance Buy- use agrees Company’s er Buyer’s remedy exclusive pollinate. pollina- time After any warranty except those ex- continued tion, appellee noticed that the Funk’s field limited pressly provided herein shall be (No. 2) much than the taller purchase all to a return of the events fields, spindly, appeared to defects in price of the seed. Claims for produce any ears corn 60% 40% must within a the seeds grown corn stalks. ears of were Good discovery. Legal' time reasonable after many 2 certain low areas of field No. but one actions shall be commenced within grown of the ears elsewhere in this field discovery year after date of of defects. merely spotted either half barren or were yields Crop quality and are due to so with kernels. beyond many and conditions the causes Appellee Jay Parsons who contacted that neither the Company’s control Com- again field and noted examined Funk’s or pany nor the distributor the dealer can development. Par- its uniform lack of ear yield quality and unless ac- warrant Funk who sent their sons contacted Seeds terms, Buyer cepted these shall on Johnson, agronomist, to examine Gordon original unopened the seed in the return August on the field 1980. This exami- days purchase of within fifteen container insects, disease, no insecti- nation revealed purchase price. This for a refund herbicide, cide, injury, or mechanical fertil- Remedy Warranty and does Limitation soil, however, problems. high The had izer prohibited apply if law. Punk fertility and sufficient water and Company a International Seeds hybrid, fields (planted same Corporation. CIBA-GEIGY time, at the same and farmed under about have LIMITA- agreed read and farming practices) experi- the same did not TION OF WARRANTY AND REMEDY problems. these Other corn fields in ence part a terms this are of the sale. planted with did not this area G-4507 also Warranty Remedy and The Limitation problems. experience such paragraph, provisions, minus the last were 3, 1980, September appellee began On tag on a to each of also contained attached silage. During cutting field this bags the 55 G-4507 delivered. process, the corn stalks white over- turned 24, 1980, plant- April appellee, began On pro- were few ears which night and ing designated this acres seed the stock. fall off duced process completed field No. 2. This was on trial, presented direct was At no evidence plant- April 1980. Field No. had been problems No. 2’s as to the cause of field days prior this Fields No. ed two time. might any nature defect which planted days after. The 3 and were two case problems. Appellee’s rest- caused planted in other fields were of seeds these Expert ed on circumstantial evidence. wit- (Missouri 17) hybrid the same but were ap- appellant nesses for Funk Seeds stated differing Each from seed dealers. field pellee’s due heat crop failure was stress irrigated, composition soil of the same inadequate, during pollination. and moisture fertility, all were within a two and Notwithstanding, jury returned ver- vicinity, and all received mile one-half appellee damages dict for assessed farming practices. same $26,253. trial entered court judgment, From this this verdict. germinated properly The fields but after appeals. appellant now has coming up, slight field No. 2 was hit issues, appellee framed five whereas has crystals. Appel- frost which left a ice few issues. distill these into four We neighbor Jay (appellee’s lee and Parsons four issues and address them seriatim. the seed in Funk dealer who sold testified, however, question) that in their DECISION damaged. opinions, the corn was not I. began irrigating all four fields Thereafter, all the in mid-June of 1980. THE TRIAL WAS COURT CORRECT began pollinating NOT fields at the same IN GRANTING APPELLANT’S FOR A MOTION DIRECTED VER- 504. N.W.2d at There no evidence DICT? WE HOLD THAT IT WAS. purchased by appellee tampered exposed with or otherwise issue, appellant On this Funk advances elements that would alter its condition First, arguments. appellant two contends from the it purchased date was appel- from required prove Hanson lant and date planted it was by appel- defect, specific the corn seed contained a lee. We extended holding our Drier prove and since failed to Crandell Appliance v. Larkin & Jones existed, appellant defect was entitled to a (S.D.1983), N.W.2d express- directed verdict. We ing plaintiff that a does not have to show Although plaintiffs burden defendant defect, “created the but proof requires him or her to show a defect only that the defect existed prod- when the existed when the left defendant’s uct was distributed and under [defen- hands, this held spe Court has that: “No control.” dant’s] evidence, cific defect need be if shown trial, At circumstantial, Hanson testi- permits direct or the infer mony planted that the field problem with ence that was G-4507 caused (field 2) planted No. was A may defect. defect be inferred at about the from same fields, time product perform that as his other subject did not as was farming practices same intended the manufacturer. . . .” Drier and weather condi- Inc., tions, Perfection, 496, v. 259 but produce N.W.2d 504 failed to while his (S.D.1977) (citations omitted). Identifica planted other hy- with the same fields— existing tion anof defect is not essential to grow Testimony brid—did disclosed recovery upon express warranty. It is suf disease, that field 2 experience No. did not if, here, ficient the evidence insects, demon insecticide, herbicide, mechanical strates, directly by permissible either or injury, or instead problems, fertilizer but inference, that the corn was defective in its highly sufficiently fertile and watered. performance or function or that it other Appellant’s expert testify did appel- that failed warranty. wise to conform to the problems might lee’s have resulted from Inc., Osburn v. Bendix Systems, Home factors, i.e., slight frost, stress, heat 445, (Okla.1980). 613 P.2d 448 Osburn application aof certain herbicide. jurisdictions cites nine supporting this However, light complete of the evidence also, proposition, including Drier. See testimony trial, and particularly offered Community Television Services v. Dress plot that this of corn properly planted Cir.1978), Industries, 637, (8th er 586 F.2d 641 cultivated, and and that all of denied, 932, rt. 441 U.S. 99 S.Ct. ce plots subject of corn were to the same heat 2052, (1979); 60 Fajardo L.Ed.2d 660 v. stress, reasonably could de Cammack, 873, (S.D.1982); 322 N.W.2d 876 termined, speculation conjec Laboratories, Inc., Pearson v. Franklin ture, appellee’s crop that failure in field 133, (S.D.1977); 254 N.W.2d 140 v. Shaffer failing No. 2 of produce ears Inc., 251, (S.D. Honeywell, 249 N.W.2d 256 G-4507; and, result of defects in Funk’s 1976); Co., v. Swenson Chevron Chemical thus, appellant’s product comply did not 505, 38, 42-43 S.D. 234 N.W.2d produce with its that it would (1975); Co., Sweetman Constr. Inc. v. Da corn. Swenson v. Chevron Chemical 650, 654, Pump, kota 88 S.D. 234 N.W.2d 38. (1975); and Valentine Ormsbee Second, Exploration Corp., appellant 665 P.2d contends that a (Wyo.1983), holding granted is directed verdict should have been “[a] perform defective when it fails to reason because there was no evidence of a breach ably safely and warranty. Appellant the function for which it asserts that this intended[,]” Drier, quoting is controlled case the Federal Seed Act1 (1985). 1. § 7 U.S.C.S. II. Act2 and the South Dakota Seed only warranty that exists is THE IN DID TRIAL COURT ERR statutory complies requirements seed THE WARRANTY DIS- HOLDING Appellant specifications on the label. AND LIMITATION OF CLAIMER question met the argues that the seed BE REMEDY TO UN- PROVISIONS thus statutory requirements and and label AND CONSCIONABLE INVALID? a ver- have directed the trial court should DID HOLD THAT IT NOT. WE issue. We dict on breach disagree. trial, attempted At Funk appellant Acts The Federal South Dakota Seed receipts tag delivery to introduce purchasers protect were enacted to bags of seed was attached to which products. They falsely from labeled Hanson. These exhib delivered and were provide criminal sanctions warranty disclaimer and its contained the abrogate civil intended to remedies remedy provisions limitation of outlined warranty provided in the Uni- however, court, trial the facts above. The conten- Commercial Code. Funk’s form of these exhibits and denied admission merit. regard in this are without tions provisions question un found to be only proper “A verdict directed here conscionable. asserts such undisputed when evidence a determination was in error. We could dif that reasonable minds not draw from the ferent inferences or conclusions The exclusion or modification of warran- Bank Appliance facts.” Swiden v. Nat’l ties and contractual modification 271, (S.D.1984). In 357 N.W.2d of S.D., permitted of under limitation remedies bar, case at the evidence not undis 57A-2-719, re- SDCL 57A-2-316 and SDCL the evidence such that puted. Neither was sum, spectively. may In a seller use could not draw different

reasonable minds by disclaimer clause to control his on the existence of a defect conclusions reducing the manner which he can be that the seed would a breach and, breached; also, a to have seller found questions of fact grow There were attempt type remedy may to restrict If sufficient to be resolved exists, minds is infixed. How- evidence so reasonable available once a breach differ, appro not ever, could a directed verdict is may the trial refuse- to enforce court Ins. priate. Brookings Cox v. Int’l finds provisions if it them to have Life (S.D.1983). This 331 N.W.2d if it unconscionable when made and been corn; represented high-yielding to be parties opportuni- affords the a reasonable not; presented by appellee it was evidence present concerning its com- ty to evidence plant properly that the corn was reflected as to setting, purpose, mercial effect so cultivated; appellee presented suffi ed SDCL 57A-2- aid court’s decision. evidence, under the circumstantial cient 302(1). properly The trial court followed Drier, prima facie established in to rule procedural requirements by accept- these action a cause of for breach establish ing pretrial memoranda and offers of warranty, implied. The evi express or exhibits, correctly at trial excluded accepted is most fa must be which dence determining provisions to be uncon- their nonmoving party vorable 57A-2-302(2). scionable. SDCL indulge all infer legitimate trial court must determination, reaching In we are our in his v. ences therefrom favor. Weber persuaded by past most our decision Bernard, (S.D.1984). 349 N.W.2d Corp., Ciba-Geigy 315 N.W.2d Durham failing to The trial court did not err (S.D.1982). Durham, 315 N.W.2d grant appellant’s motion for directed ver 700, this Court stated: dict. 38-12, seq.

2. SDCL ch. et permit pesti To the manufacturer of the Rozeboom v. Northwestern Bell Tele- Cf. consequential all escape responsi cide to phone Co., 242 (S.D.1984). bility for the breach of in contract The trial court’s determination that these serting a disclaimer of and limi provisions were unconscionable is therefore clause, consequential damages tation uphold error and we its decision in herein, such as was used would leave the regard. this pesticide re user without substantial

course for his loss. agree One-sided III. whereby party ments one left DID THE TRIAL COURT ERR IN PER- a remedy party’s another MITTING CERTAIN TESTIMONY oppressive are and should be declared WITHOUT PROPER FOUNDATION? unconscionable.[3] WE HOLD THAT IT DID NOT. case,

In this loss of the intended due to ineffectiveness the herbicide is argues Funk appel- potential plaintiffs inevitable and should lee Hanson should not have been allowed to left remedy. without a Further- compare yields from other corn fields be more, purchasers of pesticides are cause sufficient similarity did not exist so position bargain not in chemical justify comparison. We manufacturers for contract terms more Testimony which estab- pre- favorable than those listed on the comparison lished fields were of label, printed they position nor are in a composition, the same soil farmed with the pesticide test effectiveness procedures, planted same at about prior purchase.... hybrid (Missouri same with the time same policy ... should not allow [P]ublic 17), manner, irrigated in the same and were responsi- chemical manufacturer to avoid within vicinity. a two and one-half mile bility for the ineffectivenss aof (field 2) Although the Funk’s field No. was purpose, which offered for one subjected slight, nondamaging to a frost effective control corn rootworm lar- herbicide, used a different brand (Citations omitted; emphasis sup- vae. among enough similarities the fields were mine.) plied comparisons. Durham, yield to allow Although product in Durham was man- approved this Court the admission of testi- product question, ufactured here in mony concerning problems with a herbi- seed, wit, nature, corn is a of cide, though ques- in even fields there process in marketing prod- used both compari- tion had more differences than the nearly ucts permit is identical so as to yield here. The son fields admission of the application of the considerations found rele- comparisons on the based foundational tes- vant in Durham. timony elicited at trial was not an eviden- Hanson, farmers, tiary Appellee like most error. position bargain in for more favor- terms, able contract nor was he able to test IV. purchase. seed before the A fail- DID THE TRIAL ERR COURT IN ure if is is inevitable the corn seed ineffec- FAILING TO AWARD PREJUDGMENT provisions

tive enforce the here IT INTEREST? WE HOLD THAT DID question, only which would allow the re- NOT. purchase price, turn of would leave pre- without substantial recourse Hanson here contends that essence, appellee for his loss. In would interest be should been award- remedy damages left capable for another’s breach. ed because his were (S.D.1984). approval principal authority 3. Cited 358 N.W.2d 241 Co., Telephone v. Northwestern Bell Rozeboom MILLER, Judge, sitting upon a Circuit by certain calculation being made C.J., POSHEIM, disqualified. day.4 particular We provides: 21-1-11 MOSES, sitting SDCL Judge, for MOR- Circuit J., GAN, disqualified. Every person is to recover who entitled certain, being damages capable of WUEST, Judge, Acting as Circuit Su- calculation, by made certain Justice, participating. preme Court right in him which is vested recover MILLER, Judge (concurring in Circuit upon particular day, entitled also to dissenting part). part, day, from that recover interest thereon majority opinion I with the as it except during such time as debtor concur II, III, law, disposition of prevented by by the act of the relates to the Issues creditor, majority I also concur with the paying from the debt. and IV. opinion’s applicable statement of the law prejudgment To be awarded interest forth in Issue I. set statute, under this exact amount emphasized It this case must be readily must known or ascer damages differs from usual breach Son, 81 S.D. State v. Ed Cox & tainable. it action because does not involve manufac 165, 282, (1965); 180, 290-91 132 N.W.2d goods, tured as was the case Durham v. America, Corp. Beka v. Lithium (S.D. Corp., 315 N.W.2d 696 Ciba-Geigy 375, 156, (1958). 370, S.D. 1982) Chemical and Swenson v. Chevron Prejudgment interest is not to be awarded' (1975). N.W.2d 38 89 S.D. damages until deter if the are uncertain Rather, prod of a appellant is a distributor by mined the trier of fact. Arcon Constr. nature, namely seeds. Its function uct Plant, 349 N.W.2d Co. v. S.D. Cement color, advertise, test, process, grade, is to “Thus, (S.D.1984). test for award product. sell the would concur that ing interest is not whether public policy articulated considerations clear, (assuming liability) the but whether require generally that a in Durham damages reasonably were ascertainable held to the same of seeds be distributor prevailing reference to markets.” Cole warranty obligations as a manufac general (D.S.D.1977). Melvin, 441 F.Supp. turer, with some modifications. case, appellee’s In the lost present in a accepting Even the law that breach damages his yields were unknown thus specific warranty case no defect need be appli certain the mere could not become if or circumstantial evidence shown direct proposed his calcula cation of arithmetic that some defect was permits an inference yields tion the lost were to be because recovery present, seeking one dam- Yields, per appel- determined ages for still has an year year. testimony, lee’s varied own a obligation to establish that defect existed pre Appellee therefore entitled to was not posses- had “at a time when the defendant under statute and interest the sion, for the condi- responsibility control or not the trial denial of the same did court’s product.” Perfection, Drier v. tion the constitute error. (S.D.1977). Inc., 504 N.W.2d respects. in all judgment is affirmed The is, Here, opinion, in my to- the evidence any showing the

tally that seed devoid majority opinion defective. The failed was DUNN, Justice, MOSES, and Cir- Retired in timing planting that the to mention Judge, cuit concur. crucial that the fact that corn is and seed WOLLMAN, MILLER, planted approximately at J., fields were Circuit the particularly signifi- part. time is not Judge, part in in \he same concur and dissent ($2.76 bushel) a times by appellee arrive field No. 2 was harvested 4. The calculation advanced to yield. loss price at the time a sum certain is: the of corn cant; Here, many planted that appellee presented other farmers who evidence from which one could infer using fields seed from the exact same lot that a defect must have existed in the question experienced as that in here no seed because other grow factors needed to corn seemed problems; appellee applied similar that satis- a factory. Using the inference that the #2, seed to field but to herbicide not defective, must appellee have been then success; where he had fields and that al- went on to infer that the defective seed though in to of the stalks 40% 60% this caused him damage. Allowing economic ears, did produce good conversely, field plaintiff upon to recover such a chain of produce to good of the stalks did 40% 60% unacceptable inferences is forces ears indulge guesswork, to in speculation, agronomist An inspected who had field and conjecture. # 2 approximately testified that he checked Additionally, because of rulings seventy normally rows observed devel- court, the trial proof the burden of was oped ground ears in the low where the lane appellant shifted to to establish that goes irrigation system. the center of the not, itself, yield low did in and of mean that way goes long disputing That fact seed was defective. was allegations that the seed itself forced to regarding introduce evidence all appellee Perhaps defective. meant to of the variables that are affected when argue planted the that he defective seed dealing product awith of nature such as field, only high on ground of the corn seed. Because did not intro- good planted that seed low seed, duce evidence of a defect in appel- ground. proposition logic. That defies all lant nothing specifically refute, had but everything disprove. In Herman v. produced good The fact that the seed Irrigation General ground ears on the low (N.D.1976), the North Supreme Dakota seed itself was not It is defective. also Court held that “if could im- strong evidence, along with other evidence posed theory under [a] case, plants in the that the corn suffered defective, showing that the- during heat pollination stress the critical supplier of the reali- period and that lack moisture at that ty guarantor become an absolute of his critical time lower average caused the than product. gone The law has not so far.” yield. case, majority opinion in this has done Appellee merely introduced evidence to exactly North held improper; what Dakota experienced field # establish that a lower is, it made an guar- absolute average yield yield than and that the low strenuously antor its disagree seed. damage. him caused economic In Bickett holding. Co., U.C.C.Rep.Serv. & W.R. Grace weigh heavily Another factor which must (W.D.Ky.1972), wrote, the court in the here relates to an evi- determination here, a case with not unlike facts those dentiary although matter which [p]laintiffs only poor shown re- presented jury, part of the record any specific proof sults without as to considered the trial court. had how defective or how the an expert obtained witness review all of they defect caused the result depo- pre-trial facts the case. claim.... expert, express sition of that he could not Cory., Ky., Briner v. General Motors opinion an defect in the to whether a (1971) 461 SW2d 99 holds that mere problems #2. caused the field poor requires jury results During deposition, expert first to infer defect and then infer that “Again, particular prob- asked: as to the injury, had[,] the defect you caused the lem Mr. Hanson wouldn’t know plaintiff may prove you’re offering not his bas- case cause that and not ing any an upon opinion, expert inference an inference. is that correct?” The speculate.” to While replied, “It’s difficult expert to

it was difficult for problems speculate the cause of as to allowed and obvi- field # to spec- any difficulty in ously not have did cause, especially consider- to the ulating as ing evidence show- the total absence of ing a in the seed. defect expert deposition

The trial, However, at parties, deposition stipulation Considering part of the record. was made contents of the of the total nature deposition, difficult to ascertain it present jury, it why appellee did not to he mere- though he later claimed that even ly chance forgot. When offered he reopen deposition, his case include declined. above, I of the reasons stated

For all would reverse. that Justice am authorized to state joins

WOLLMAN in this concurrence part. part, dissent PETERSEN, Raymond A. Appellee, Petitioner and Braun, L. Braun of David Gors DEPARTMENT OF PUBLIC Pierre, petitioner appellee. for SAFETY, Appellant. Hallem, Gen., Atty. Jeffrey P. Asst. No. 14268. Pierre, Meierhenry, V. appellant; Mark Gen., Pierre, Atty. on the brief. Supreme Court of South Dakota. 17, 1985. February Considered Briefs FOSHEIM, Chief Justice. 14, 1985. Aug. Decided Safety Department appeals Public vacating court

from a circuit order Raymond A. Department’s order revoke year license for one be- Petersen’s driver’s a blood test. cause of his refusal take Ne reverse. 18,1982, p.m. High-

At 9:00 on December investigated a way Patrolman Farnsworth

Case Details

Case Name: Hanson v. Funk Seeds International

Court Name: South Dakota Supreme Court

Date Published: Aug 14, 1985

Citation: 373 N.W.2d 30

Docket Number: 14395, 14405

Court Abbreviation: S.D.