*1 adjudged guilty robbery. can be of armed
For us hold otherwise would be build weapon”
into our law an “unloaded de- prosecutions
fense'that would defeat most robbery
for armed except when the offend- captured
er is at weapon the scene and his
seized. special
We affirm the charge rulings of judge. trial
For assigned, the reasons the conviction
and sentence are affirmed.
Emile et Plalntlffs-Appellees-Relators,
v. CASUALTY INSURANCE
FIDELITY & al., De OF NEW YORK et COMPANY fendants-Appellants-Respon dents.
No. 50779. 28, 1971.
June
Rehearing Aug. Denied 1971. Caskey, Jr., Rouge, for T. Baton
John plaintiffs-appellees-relators. Wilson,
Breazeale, Henry D. Sachse Salassi, Jr., Rouge, Baton for defendants- *2 appellants-respondents.
TATE, Justice. damages from
A
claims
customer
dip
of cattle
and its insurer.
manufacturer
sup-
bought
dip had been
from local
plier,
longer party. Application of
no
plaintiff’s son’s
seven of the
caused
thereafter,
shortly
and his two
to die
cattle
boys to become ill.
then-minor
trial
appeal reversed a
The court of
plaintiff and
judgment in
court
favor of
sons,
(La.
majors.
his
616
now
236 So.2d
granted
App.
1970).
certio-
1st Cir.
We
rari,
848,
(1970),
La.
The other for the de- sive in the batch of the manufac- veterinary fendants was the director purchased dip turer’s For, them: if the dip explained the manufacturer. He plaintiff’s prepared sons had the spraying- rigorous procedures testing usual used described, solution in the manner the cattle compliance specifications assure with with would not have died from such normal governmental standards, noting that tests spraying, dip had contained only sample conducted on a from .each normal amount of arsenic. Under these 2700-gallon stat- batch manufactured. He circumstances, the hypoth- most reasonable ed, however, that no record could be found esis for the cause of the cattle’s death is an present of the which the batch from con- excessive amount of portion arsenic in the tainer at the time of manufac- was filled kept manufacturer; ture of the since records were received from in for otherwise the cattle would not have only years. filed (Suit three died. against the defendant manufacturer 1964.) The stated that he no director had case, In this civil burden any inadequacy record 1963 batch prove is to by preponderance causation any complaints arising nor of from use. may evidence. This burden met be not (He had entered the manufacturer’s or, either case, by direct as in this cir- employ 1965.) until cumstantial evidence. v. Travelers Jordan evaluating In evidence, the trial court Co., Insurance 257 La. So.2d accepted testimony truthful Naquin Co., (1971); Marquette v. Cas. plaintiffs a small used La. So.2d (1963).
proportion dip, safe well within limits, preparing solution. decision, As we stated the latter correct, testimony whole,
If
such
then
So.2d 397: “Taken as a
circumstan-
plaintiff’s
applied
sons had
substan-
tial evidence must exclude other reasonable
tially
hypotheses
certainty.
accordance
the manufacturer’s
with a
fair amount
plaintiff’s
however,
mean,
son had
directions.
stirred This
must
does
that it
Although
thoroughly.
negate
mixture
possible
all other
causes. Other-
day,
wise,
hot
there
evidence that the cattle
the mere identification
the record
no
possibility,
were heated
had been run.
although
of another
not shown
*5
causally active,
dip may
poured
the
of
have been
can
would break
into the
to be
before,
after,
gallons
instead of
the 19-20
of causation.”
chain
water,
of
is immaterial in
of all the
view
case,
plaintiffs
present
the
the
In
thoroughly
evidence.
solution was
stir-
by
found
this burden
have met
being applied.
red before
All seven cattle
trier of
have
credible
the
fact.
through
died
the
of almost
of
20-
use
all
the
dip
used as the manu
showed
gallon
is,
spray
(That
improper
mixture:
if
reasonably
anticipated,
facturer must
have
heavy
mixture
unusually
had caused an
cattle,
that it killed the
and that the most
portion
concentration of arsenic in one
of
probable
an
reason it killed the cattle was
20-gallon mixture,
only
the
or
then
the cow
in the small
excessive amount of arsenic
portion
so on which this concentrated
portion
dip
prepare the
of the
utilized to
spray
been
used would
been
have
spray solution.
affected, not
every
them.)
each and
one of
produced evi-
The defendants have not
Likewise,
suggestion
that untoward
dangerous dip
portion
dence that the
of the
produced
spraying
effects were
by the
be-
The manu-
properly.
was manufactured
ing done
August day
on a hot
is not im-
produce
evidence that
facturer did
pressive.
upon
It
is based
one of the
proper
batch of
had contained
prod-
numerous directions
of the
as to use
course,
arsenic,
proportion
although, of
uct, designed (according
wording)
to
to
should
testify that the cattle
its witnesses do
burning
Nothing
avoid “a
of the skin”.
spraying-mixture was
not have died if the
on the label indicated that
the cows will
dip contained
prepared
properly
(if
sprayed
day.
die if
on such
only
specifications).
of the
briefly dispose
intima-
might
We
is
There
further no evidence that
defendant:
unduly
tions of fault offered
cattle
tired or
before
were
heated
foot,
That the
stirred with a stick
spraying.
boys,
solution was
on
drove
cup
plunger
holding
and that the
pasture
instead of with a
cows from a ten acre
to a
question
days.
cloudy
muggy
important
1.
direction in
is as fol
The label
or
very necessary
respect may
“It
rest and
lows :
to
this
result
Carelessness
spraying.
dipping
before
or
water cattle
in serious loss.”
shady place
in a
Cattle should be rested
The evidence shows that
the reason
dipping
watering
dipping
following
that,
never
cattle is
when a
immediately
thirsty,
treatment.
driven
and the cattle are
vat
is used
very
dipping
Cooper’s
they may
vat.
reliable
drink from the
Cattle
give
results,
that,
if
and will
excellent
The evidence does not show
specified
con-
are heated or tired there is
had contained
but
early
arsenic,
application
liability
burning. Dip
centration
drying
day
day
have
thor
would
assure cattle
to cattle on a hot
in the
especially
oughly
nightfall
caused serious effects.
before
—this
brought,
Dip by
manufacturer,
one at a
pen. Then the cows were
Cattle
time,
majority opinion.
where
I
pen
shed
found
also
from
expert testimony
released
find
shade,
then
discloses that
sprayed
absorption.
trees and
the cattle died
pasture
from arsenic
with shade
another small
plaintiffs
not find that
have borne their
trough.
do
a water
proving
burden
*6
plaintiffs
have estab
Since
employed by
Dip
spray
Weber to
Steve
that
by
lished
circumstantial
and
his cows was
that
defective
damages was
probable
most
cause of their
damages
by
were caused
reason of the de-
prep
proportions and
improper arsenic
I find
fect.
that the instructions set forth
manufacturer,
by
we
aration of the
respect
spray-
on the
to
bottled
with
finding
that
trial
affirm the
court’s
ing
observed
and
Steve Weber
pre
proved liability
plaintiff has
sprayed properly.
that the cattle were not
record
ponderance
evidence.
infra,
For
reasons
forth
I
set
believe
award of
justifies the trial
likewise
court’s
judgment
that the
Appeal
of the Court of
animals,
damages ($2,650 for
loss of
should be affirmed.
veterinary
expenses,
and medical
for
$360
Appeal
The Court of
Court of set trial decided spray to his cattle to rid judgment flies, court reinstated affirmed. them of grubs, and known as cattle lay eggs
which on eggs ap- cattle. The HAMLIN, (dissenting). parently produce Justice worms enter the bodies of causing large cattle holes to definitely plaintiffs do not find that appear in the animal’s back. have established circumstantial evidence probable their “To Steve, most dam- cause of accommodate his son ages improper preparation charge was the senior Weber maintained ac- Kalmbach’-Burkett, count á distribu- body, with over its including entire its head. supplies. tor of and It livestock feed After the or eighth seventh animal treated, appears virtually unlimit- signs had began Steve appear distress to authority purchase ed source sprayed from this staggered, animals proj- supplies such as his fell feed cattle and went into convulsions. The required. Approximately spraying ect four operation was ceased immedi- prior ques- ately. five months incident The Senior Weber was summoned tion, young placed telephone or- and in Weber turn he enlisted the aid of vet- der for a boys distributor cattle erinarian. When complained anticipation dizziness, his herd faint, nausea feeling not, He how- some future occasion. did Mr. immediately Weber took them to a ever, type spray de- specify either the physician. The veterinarian worked the to be sired or number remainder of the through afternoon and sprayed. employees of the distribu- night attempting, success, to without by depositing a five tor filled the order save the animals that had been sprayed. gallon Cooper’s on its can loading dock where picked up by [*] “ [*] [*]
young distributor Weber testimony testi- “Mr. Weber’s [this *7 dip day. the The container closed for substantially mony is not contradicted] brought home to ranch was the scene, he when summoned to the facility in a similar and stored barn or staggering lying found the down family the resi- somewhat removed from in He convulsions. examined the can con- dence. taining and the concentrated observed beyond doubt “The discloses that so was it was missing, little difficult any on which the that the afternoon to tell had been He whether used. extremely day. garbage occurred was an hot Steve also in examined can which brother, Weber, younger his assisted the solution was mixed and found up Karl, rounded the cattle from on foot two or inches of mixture left in three approximately pasture measuring a 10 can. vet- bottom of the He summoned a thusly area. animals were erinarian attend the acres in to animals. When pen complained a near a shed or barn. his and herded into sons of headaches nausea, rope immediately sought singly by then a hal- medical were led he they boys’ ter to shed where advice. discomfort pen from was [The duration; sprayed they post phy- one at a short taken to a were tied to and were spraying, After let out sician but received Fear- time. were no treatment.] day sprayed pasture. compound, to ful of in Each animal was the arsenic incident, public containing eral he caused an following extremely high or two dip, gar- the cattle arsenic content without cautioning its dis the remainder measuring, cup for bage pail, used against allowing any tributors minors and the mixture was the stick with which one other than veterinarians to use the animals and the carcasses of stirred solution; alleged further dis freeway, having A since be buried. negligent tributor selling Cooper was in site, neither the been over erected prayed Cattle He to his sons. dam for nor of the animals the carcasses were ages $4,800.00.2 in the sum available for further examination.” merits, After trial on court the trial Weber, judgment jointly rendered and solido August 11, Emile M. On against Cooper Nephews, William individually and on behalf of his & Inc. and for Casualty and sons, Steve,1 Fidelity & Insurance Co. of minor and filed suit Karl Inc., N.Y., plaintiffs, and in favor of Cooper Nephews, Steve against & William Dip, $2,750.00, manufacturers of Cattle and Weber the amount of Karl insurer, Casualty Fidelity Insurance $100.00, Weber in the Emile amount and N.Y., Co. of and Kalmbach-Burkett Com $360.00, Weber the amount of all Inc., Dip, pany, legal August distributor bearing amounts interest from insurer, and its Accident Insur Standard paid. Judgment until was rendered Company. alleged ance He manu in favor of defendants Kalmbach-Burkett wantonly negligent facturer and Company, In- Inc. Standard Accident negligently supplying gen material to the Company.3 surance boys trial, 1. any At the time of two were come Court cannot other conclu- majors parties and were made to the suit. sion other than that used offending of the cause animals’ death. damages Furthermore, opinion 2. itemized as follows: the Court is of the Registered Cooper’s product Hereford suf- that the label on ficiently public $ 300.00 Cow .................... warns the insofar as Registered dangerous properties compound. Hereford 1,000.00 .................... Cow reflects a Since the evidence substantial Registered Hereford adherence Weber direc- Steve 1,000.00 (KB-1) Bull .................... the label tions shown on Jersey preparation solution, appears Milk Cows........ 600.00 strong probability ...... 1 Holstein Milk Cow 300.00 definite and improperly compound jjrepared 250.00 Brahma Cow............ produced by manufacturers, *8 Bill ........ 350.00 Veterinarian’s William anxiety Cooper Nephews, Incorporated. Discomfort and and boys 1,000.00 certainly possibilities ........ suffered While other exist any may not be excluded reason- situation, in its reasons for 3.The trial court stated able review of the circum- judgment: of the fact that stantial in the case is “In view sufficient ' finding previously healthy prior liability been of cattle had warrant on spray, part of the manufacturers.” to the administration of Appeal poisoning died from arsenic supra, the Court and that stated As court, product the trial was the cause of the animals’ judgment reversed that establishes death. record stating: “Since poisoning of arsenic died animals 3.The Court substituted its finding own proof whatsoever no plaintiff has offered finding of fact for the of the trial court defective, product was defendant’s upon which was preponderance based Ei- plausible. appear conclusions two of the evidence. the concentrate mixed ther Steve Weber his careless- Plaintiffs contend that this matter should
stronger than recalled express liability be according determined to strict following defendant’s in not ness product They argue loss’ cases. in the ‘serious there resulted instructions why is no sound expressly principle warned. reason label defendant’s liability manufacturer’s within should not be ex- distressed cattle became Because spiray- tended such as time...foilowing their case the instant one. such a short not- the view are inclined to ing, we negligence Defendants submit that no testimony to withstanding young Weber’s part was shown of William put probably too contrary, he either Nephews, They urge Inc. that no fault quantity of water used dip in the much part on their can there be inferred since solution. mix and stir the properly did not showing nowas that the was defec- cause of may have been the Whatever tive, dangerous unwholesome or used when negli- loss, to establish plaintiff has failed They purposes for its intended as directed. gence part.” on defendant’s urge further that no fault can be inferred Court, plaintiffs assign the fol- In this showing when there is no that the manufac- lowing judgment of the Court errors to danger. turer failed to warn the user of Appeal: liability contend that should not at- simply tach dan- because the reversing the 1. The Court erred gerous showing without a of a failure find- judgment the trial court without warn or instruct of hazards. judgment of when the ing manifest error preponder- was based on the trial court Dip dis- The container ance of the evidence. label, ployed yellow large and the detailed ink, overturning instructions, printed in black 2. The Court erred thereon finding of fact of the trial court recited: *9 620' any other arsenical record, Cooper’s Cattle or testimony of reading
After according to compliance used died cows a fact find going to kill is not car- directions Since poisoning. from either.” or mules or horses destroyed before the animals casses whether examination, determine I cannot Weber, twenty-four years of Steve A. absorption. inhalation from they died age the time Deputy at of trial and a veterinarian, a witness Heflin, C. M. Dr. Sheriff Parish East Baton *10 kill in to defendants, order that testified for Rouge, testified respect with to his mix- or- less, the ten times or in an hour a cow ing day the solution on the of this fatal in- instant strength of the dinary recommended sprayed cident. He said that he the cattle oral that either required; would be product fifty in the stable yards area—-about from if the be fatal application would or dermal mixed; where the solution was that the fur- He employed strong. were applied was gasoline with mixture driv- “a an has overdose that if a cow ther stated sprayer en that attachments, has two hose paralytic and it nervous spraying, becomes one for suction and spraying the other for down; might it have that falls and then you press and the suction hose into so- it it down rigors, that when lies some and sprayed lution to be and it causes suction ab- up. He surmised that get cannot you and shoots it spray.” out and He could ac- paralyzes the heart sorption of arsenic adjustment remember the used on the taking respect tion. With spray. He said that he had never used course, is taken orally, if it said: “Of he spray employed for pesticide was be liver and it can orally it is in the stored flowers; spraying of that the hose was by examining the detected liver because six long, five or feet but that did not he liver, poisoning it is stored can; it garbage know how far went into course, you get if an over- mouth. Of that he did not clean the before dermally skin, why, it ab- dose used it. Steve remembered the weath- just pretty quickly.” fast kills sorbed so it er fair and hot on the afternoon was Dr. that he familiar Heflin testified spraying; this fact confirmed Cooper Dip, with and “I had to Cattle have testimony Levy ob- of Dr. L. who Martin it do with and it for the last over used boys spraying. served Weber forty years.” had treated thousands He the cows what with asked was done When product, had cows and none had spraying, stated: before “We Steve poisoning died of as a of his result single large we would pen in a and them said, bring to the rope “All I could it treatment. further it and over He one out and adjoining pen stable stable area. The say. preparation known kept just we them and we Christofferson, area was where Dr. Paul Veterinary- Di- a—the tied them under —there is stables rector at William Nephews, Inc. trial, goes out and there is a at time being have a shed charge of research and walkway development tied there under and we them and quality control, was walkway sprayed them.” The cows called and as a witness defendants. He tes- post sprayed one at to a and tified that were tied since 1948 there had been no re- jections time; cow was com- Dip. when He' -was pasture. pleted, you into it was turned out asked: “Were able—this you suit as being reacted to know asked how the cows arises from an When incident which oc- “Well, they strug- curred sprayed, said: back in 1963 when Steve some of this you was used gled specially bit would and the you a little when cattle died. Were around the didn’t able to up shoot head. ascertain from the records of the He said that particularly company particular care for that.” you batch? Were able sprayed plaintiff all over—head cows were batch to the trace this eight sprayed responded: records, all. been case?” He Seven cows “No. Our something wrong our samples kept kept when realized are Steve at that —were years asked time for his father. When three first summoned and the notifica- long the time that tion April how it was from I had inwas I believe died, sprayed years time some apparently and the five after the ma- responded, bought used, “I between terial say would and we went Steve back *11 hours I notification, twelve and —ten or twelve because soon as received went back through the files to if we had had night see there when to bed that we went any prior complaints and also went back one still and of them believe were alive quality laboratory storage into our control morning it either or—” must the next have samples and we could find no such and we Helouin, Dr. C. who M. veterinarian could complaints find no such either.” He they treated the Weber were cows said that resting the reason for and water- sprayed, plain- called as a for witness ing cattle dipping before or tiffs. He testified that he never used frequently experience “because has shown dangerous; it is thirsty Cattle because that cattle would tend to drink water account, that he not like it that does on and containing -spray, or or the arsenic opinion products that safer puddled print his there are wherever in a foot in, on wherever, also, the market. He testified from the and thus take it if the symptoms- displayed cows, through their animals are overheated exercise or 'by poisoning. through deaths caused extremely hot weather or other- they higher to have a rate of wise tend ab- is used border between Texas sorption because the vessels of the skin are and Mexico for tick Eighty eradication. percent This then would tend to allow company’s production dilated. pur- is absorption and thus more chance for chased Government, more United States toxicity.” gave every Dr. and fol- batch .Christofferson buys Government is lowing, explanation employ- subj of the methods analysis ect its and to conformance to uniformity company specifications. ed to insure product his is man- proper manufacture ufactured and when there are Government or Dip: particular product con- State "This must orders. quality specifications. rather rigid form to Restatement, Second, Torts, Sec. 402 First, toxicity of the inherent because A., p. 347, Special Liability of Seller of itself, is, product the arsenic it con- Product Physical for Harm to User or Con- tains, second, per- because is called a sumer, recites: is,; dip, permitted by
mitted it is “(1) Department Agriculture One who any product States sells United in a defective to be used in programs disease eradication condition unreasonably danger- ous to specifi- and as such the user must then meet their or consumer or to his property Department subject ad- liability cations sets. In physi- dition, course, cal harm regular thereby rou- we have our caused to the ultimate consumer, user or procedures quality for manufacture. property, tine his 'These must show that we avoid contamina- “(a) the seller engaged in the busi- tion of this with others and avoid ness of selling product, such a and products this (cid:127)contamination of other “(b) expected it is to and does reach particular product. It manufactured un- the user or consumer without substantial specifications particular der set vessels change in the condition in which it is sold. is, course, procedure and the written out for those to who the ma- follow formulate “(2) The rule stated in (1) Subsection ingredients terial. The raw are tested as applies although they Upon approval enter the lab. “(a) the seller pos- has exercised all manufacturing (cid:127)can then be used in the area sible preparation care in the ?ale proper precautions. under Then when product, his samples is finished each batch *12 laboratory testing before consumer, are taken- to “(b) the user or has. not ,it. packaged can be the containers before product bought the from of entered into marketing.” any can be filled for He contractual relation with th8 seller.” said 627 628 A!, Rptr. 897; supra, under
Comments
Section
377 P.2d
Estabrook v. J.
Penney Company,
recite:
C.
105 Ariz.
464 P.
325;
2d
Larsen v. General Motors Cor-
“(g)
condition.
rule
Defective
poration,
Cir.,
495;
391 F.2d
Schenfeld
applies only
stated in this Section
where
Company,
Cir.,
v. Norton
“It record, of despite I conclude that only what applies ipsa loquitur res trine of might doctrine be herein negli- instrumentality alleged to have when the invoked — gence, ipsa res loquitur, or even Restate- actual is in the damage caused plaintiffs ment of have not made Torts — defendant, of control constructive out a negligence part case of on the of freedom plaintiff proved has or where Cooper William Nephews, & Inc. through part of all on the of fault offered neither definite preponderating nor instrumentality passed hands the whose proof Cooper that Dip instant Cattle Eversmeyer v. leaving defendant. hands, was defective when it left the seller’s 845; Chrysler Corp., La.App., 192 So.2d received, when it was or when it was mixed Corp., Elevator Brechtel v. Gulf States twenty with gallons by of water used Hydro- 403; West v. La.App., 195 So.2d testimony Steve Weber. Their re- with Test, 598.” Inc., La.App., 196 So.2d spect to the Dip Cattle does not ex- Shepherd v. Lutheran Church Good clude hypotheses other causation refused, 339, Canfield, writ death 233 So.2d of the cattle. (1970).
256 La.
236 So.2d
plaintiffs
By
testimony, supra,
ad-
their
on a
spray
administered
mit that the
course,
by
may,
proved
be
“Causation
instructions,
supra,
day (the
warn
hot
many in-
In
evidence.
circumstantial
sprayer;
against
gasoline driven
heat)
stances,
proved
such
be
can
administration,
cattle were
that after
whole, circum-
Taken as a
evidence.
place they
turned
kept
not
in a cool
rea-
exclude other
evidence must
stantial
—
not
pasture.
The cattle were
out
a fair amount
hypotheses with
sonable
meticulously
administration
watered before
mean,
certainty.
how-
This does not
instructions, supra, pro-
spray (the
ever,
possible
negate all other
that it must
Otherwise,
ad-
watering
identifica-
cattle before
the mere
vide for the
causes.
possibility,
Dip). Steve
another
ministration of
Cattle
tion
the record of
active,
respect
causally
testimony
although
be
not shown to
Weber’s
is that he covered
of causation.”
actual
would break the chain
solution;
no
he took
Casualty Company,
that
Naquin Marquette
animals with the
v.
absorp-
See,
inhalation or
precautions regarding
La.
Lambert