Royal Mink Ranch v. Ralston Purina Co. , 18 Mich. App. 695 ( 1969 )

Holbrook, J.

Plaintiff Boyal Mink Banch, a Michigan corporation, acting through its owner, Mrs. Josie Chaddock, brought this action for damages allegedly caused by feeding plaintiff’s mink a cereal manufactured by defendant, Balston Purina Company and distributed by defendant Wickes Corporation. The feed was claimed by plaintiff to be contaminated, nutritionally deficient, negligently prepared and improperly stored.

• Mrs. Chaddock’s husband, Dr. Theodore' Ch'ad: dock, is a veterinarianj practicing his profession in the Saginaw area where plaintiff’s mink tanch is located. Dr. Chaddock was also concerned in the management of his wife’s Royal Mink Ranch.

Plaintiff had, prior to this difficulty, purchased in preceding years the products of Ralston Puriiia from the Wolohan Elevator at Birch Run, known as “mink breeder chow” and “mink developer chow” both concentrates which were mixed with other ingredients to provide a total ration for feeding adult breeders and baby mink. Defendant Wickes Corporation became the owner of the former Wolohan Elevator at Birch Run and plaintiff continued to purchase the chow from defendant Wickes. Both defendants denied the claims of plaintiff and defendant Wickes filed a counterclaim against plaintiff for the purchase price of the feed.

The case was tried before the court and a jury. The verdict as to plaintiff’s case was in favor of defendants of no cause of action. The verdict as to defendant Wickes’ counterclaim was in favor of defendant Wickes against plaintiff for the purchase price of the feed. Judgments were filed in accordance with the verdicts. Plaintiff appeals.

There is testimony in the record that plaintiff had operated the Royal Mink Ranch since 1945 and enjoyed a high reputation as a top breeder in the country; that plaintiff continued to operate the Mink Ranch after this occurrence with some improvement, but has been unable to regain the position of prominence enjoyed before 1961.

As a part of the operation of plaintiff’s mink ranch a feedhouse was maintained on the property where feeds were kept and mixed for feeding the mink. The “mink breeder chow” was advertised in various trade journals and manuals by defendant Ralston Purina as containing all the proper vitamins needed by mink during their mating and whelping period from January through June. The plaintiff relied upon that representation of Balston Purina and as a result purchased defendants’ “mink breeder chow” and mixed it with other feed and fed the mix to the breeding mink for the 1961 season. During the whelping period when the young mink should be normally born many of the females were dying while giving birth, with most of the mink kittens being born dead as mummies or with severe malformations.

It was the theory of plaintiff on the trial of the case, that the vitamins claimed to be present in sufficient quantities in defendants’ “mink breeder chow” were not actually present, especially vitamin A. Plaintiff claimed that the vitamin A, if present in the chow originally, had been destroyed by the negligence of both defendants in storing the chow too long and under improper conditions.

The plaintiff raises 3 issues on this appeal which will be considered in proper order.

1. Did the trial court err in refusing to admit the testimony of a food ingredient man and other mink ranchers who used a prepared food containing the same “mink breeder chow” as used by plaintiff?

Plaintiff sought to have admitted the testimony of David ~W. Peterson, employed in the mink food ingredient business. His testimony was taken on a separate record as provided in GrCB 1963, 604; it concerned his personal observations as to conditions present at the King Banch, another mink ranch involved in a similar lawsuit that was heard prior to the instant case, vis.: Savage v. Peterson Distributing Company, Inc. (1967), 379 Mich 197. Plaintiff claims that the testimony given by Mr. Peterson at the Savage trial was collateral to the circumstances in the present case and therefore admissible. In the Savage case the plaintiff fed his mink a ration known as Peterson’s Bedi-Mix, manufactured by Peterson Distributing Company. Tbe Redi-Mix contained Ralston Purina mink breeder chow or developer chow combined with other ingredients. In 1961, the mink on the Savage ranch suffered from an epidemic of food poisoning with resulting loss of mink, similar to that suffered by the Royal Mink Ranch. Examinations of both the mink carcasses and the Peterson Redi-Mix feed from the Savage ranch showed the presence of salmonella bacteria. Other mink ranchers from over a wide area testified at the Savage tidal that they had fed the Peterson Redi-Mix to their mink and salmonella bacteria were found in their mink.

The trial judge ruled that the proposed testimony of Mr. Peterson pertaining to his observations at the Savage ranch was irrelevant to the instant case because in Savage a different feed mix was fed to the mink even though the defendant’s products were included therein. The claims in the Savage case were that the presence of salmonella bacteria caused the loss whereas in the instant case plaintiff claims the loss was caused by a deficiency of vitamins, particularly vitamin A, in the feed. In 4 Callaghan’s Michigan Pleading & Practice, § 36.207, pp 57, 58, 59 and § 36.209, pp 61, 62, it is stated:

“In general, evidence as to happenings or things not involved in the controvery, or as to conditions or facts existing at other times or places than that of the occurrence or transaction in dispute, is inadmissible on the ground of irrelevancy or immateriality. * * *

“But evidence of a fact or condition at another time or place is admissible when it appears, or where other evidence is offered to show, that such fact or condition bears upon the controversy or an issue therein, that it is connected with a fact or condition in dispute, or that it would likely be the same, or at least similar, at both times or places. * * *

“Generally, in order that evidence may be admissible as to a similar bnt distinct fact, the relation or similarity of which is not apparent, or in order that the admission of snch evidence may not be held to be erroneous, foundation evidence is required for the purpose of showing that the seemingly extraneous fact, as to which evidence is sought to be introduced or as to which evidence has already been admitted, is connected with the controversy or an issue therein, that it is the same as, or similar to, a fact in dispute, or that the circumstances or conditions were identical, or at least similar. In other words, the fact must be connected to the case by preliminary or follow-up evidence which will satisfactorily demonstrate that evidence of the fact is competent, relevant or material.”

Also see, Crane v. Valley Land Co. (1918), 203 Mich 353; Murchie v. Standard Oil Company (1959), 355 Mich 550; and Jones v. New York Central Railroad Company (1967), 8 Mich App 575.

The facts present in the Savage case were dissimilar to the facts in the present case, i.e., the mink were not fed the same mix although a part of the mix was the same (defendants’ products); the bacteriological symptoms were not the same; and the feed was not purchased from the same source. Absent a proper foundation showing a substantial similarity of conditions present at the Savage ranch with those at the Royal Mink Ranch, the proffered testimony of Mr. Peterson was properly ruled inadmissible as being irrelevant and immaterial. O’Donnell v. Oliver Iron Mining Co. (1933), 262 Mich 470.

Plaintiff made the following offer on the record concerning other witnesses who had used Ralston Purina feeds in feeding their mink:

“Mr. Nortino: May it please the court, on the matter of the ruling of the court in the Peterson Feed, the court has ruled that the testimony of Mr. Peterson on his observation of the mink was inadmissible, distinguishing this because his was a complete redimix which was being sold and thus distinguishing it from our case.

“We had listed as possible witnesses many other people who used the Peterson Redi-mix. Pursuant to the court’s ruling, I have — I do not have those witnesses here. I just simply want to state on the record that I would have tendered those witnesses except for the court’s ruling and I would not tender them at this time because it is my understanding that the court’s ruling covers these other witnesses.”

Plaintiff’s counsel did not make a specific offer of what he expected to prove by these other witnesses’ testimony nor did he present them for making a segregated record and we assume in the absence of a showing to the contrary that their testimony would be inadmissible for the same reasons stated herein concerning Mr. Peterson’s testimony. GCR 1963, 604; 88 CJS, Trial, § 75; p 181; Bujalski v. Metzler Motor Sales Company (1958), 353 Mich 493.

2. Did the trial court err in admitting a report of an analysis of mink feed, exhibit 93, claimed by defendant to have come from the Royal Mink Ranch?

Exhibit 93 was offered by defendant and admitted at trial over objections of the plaintiff. This exhibit had not been listed as an exhibit pursuant to the pretrial hearing order nor had defendant given plaintiff notice to produce the original exhibit 93 prior to trial.

GCR 1963, 301.1 provides:

“In every contested civil action the court shall direct the attorneys for the parties to appear before it for a conference to * * *

“(7) produce all proposed exhibits in the possession of the attorneys in support of the main case of defense and admit the authenticity of such exhibits whenever possible.”

The court in its pretrial order stated:

“The court would also suggest that prior to trial date that counsel get together on the list of exhibits that may be used so that they possibly can be marked if they are going to have a lot of exhibits.”

Defendants urge this court to consider this order as directory or optional with the parties; however, there were a great number of exhibits and plaintiff did comply with the order. We do not deem the pretrial order on exhibits as of no force or effect. This was one of the purposes of the pretrial hearing and if it was not clear to counsel, a request for clarification would have been in order. Absent a modification of the order it should, unless cause is shown to the contrary, control the conduct of the trial. GCB 1963, 301.3; 88 CJS, Trial, § 17(2), p 44.

When exhibit 93 was offered the record discloses the following colloquy:

“The Court. Why were they [reports in exhibit 93] not marked at the time I ordered the exhibits to be marked? * * *

“Mr. Deibel: Well, your Honor please I’ll take the blame for that if any blame is to be had. We felt certainly that they had these in their files and I didn’t know why they didn’t — hadn’t been disclosed to us at this time.”

It is now apparent why plaintiff’s counsel did not have exhibit 93 in their possession. Dr. Chaddock took many samples of feed and carcasses of mink to Dr. Newman at Michigan State Uiiiversity for testing and reports. The samples for which reports were made in exhibit 93 were delivered to Dr. Newman by Dr. Chaddock, but were taken from another mink ranch and were not from the Boyal Mink Banch. Dr. Newman when receiving samples from-Dr. Chaddock did not designate the place of origin but only that Dr. Chaddock furnished them and the reports were to be made to him. Defendant may have felt that the reports in exhibit 93 were for samples taken from plaintiff’s ranch but the exhibit does not disclose this fact on its face. Plaintiff would have been able to have the admissibility of this kind of exhibit ruled on before trial, had it been listed pursuant to the pretrial order.

Plaintiff also asserts that before exhibit 93 could have been properly admitted it would have been necessary to show that the reports contained therein were from samples taken from the Royal Mink Ranch. It is true that the samples were delivered by Dr. Chaddock to Dr. Newman and this fact appeared on these reports, however, the mink ranch from which the samples were obtained does not appear on the reports. Dr. Chaddock was serving as a veterinarian for many mink ranches in the area and some of them were having difficulties at the time.

The failure to connect exhibit 93 to the Royal Mink Ranch does not go to the weight and sufficiency of the evidence but rather to its admissibility. To be admissible the exhibit would have had to be properly identified and shown to relate to the subject matter of this suit by the testimony of a competent witness. 4 Callaghan’s Michigan Pleading & Practice, §§ 36.187, 36.205, 36.209. Bauer v. Veith (1964); 374 Mich 1. Also, exhibit 93, being a copy, was secondary evidence. Before it could be admitted a sufficient showing was required as to why the best evidence, i.e., the original, was not produced. Absent such a showing the exhibit was also inadmissible for this reason. 4 Callaghan’s Michigan Pleading & Practice, §§ 36.353, 36.354.

Under the facts in this case we rule that the admission of exhibit 93 into evidence without properly connecting it to the Royal Mink Ranch or the feed furnished by the defendants, and the failure of the defendants to list the exhibit pursuant to the pretrial hearing order, resulted in prejudice to the plaintiff’s case and is reversible error.

3. Did the trial court err in refusing to admit testimony of an expert as to vitamin A experiments with chickens?

Dr. J. R. Conch, the expert witness, was not permitted to testify as to the specific vitamin A experiments because they were made with chickens instead of mink. Defendants asserted that to permit the testimony concerning the vitamin A experiments with chickens would have been an excursion into a side issue and would have extended an already long trial.

In reviewing the record, we find the following testimony of Dr. Couch:

“Q. Now, have you done any work with vitamin A, sir?

“A. Yes. I did my first work with vitamin A between 1931 and 1935. At that time we were using alfalfa which contains the proper vitamin A as a source of vitamin, and the work was done for Professor Sherwood, and Doctor Gr. S. Frapp, and so published in Texas Agricultural Experiment Station Bulletin in this case, actually like a good graduate student I had to do all the work, so I remember these things quite vividly. We fed chickens on various levels of vitamin A and when the hens received a low level or a level that was not- — would not meet the requirements they died; egg production stopped and the mortality went up.

“I think this is characteristic because vitamin A is required by all animals. We also observed that when the hens were fed in an insufficient quantity or suboptimum level of vitamin A and we took the chicks from these hens even though the chicks hatched, the chicks were not strong enough,”

Dr. Couch was for more than 30 years a professor of biochemistry and biophysics at Texas A & M University, and was well qualified as an expert. He did state in a separate record in the absence of the jury in referring to the tests that it made no difference whether they be conducted with chickens or mink. We conclude that to have permitted Dr. Couch to relate the details of the experiments would he admissible to explain the basis for his opinion as to the necessity of vitamin A in a stable form to be in feeds fed to- animals. The present court rule, GCR 1963, 605, as we read it would permit the desired testimony proffered by plaintiff to be admitted. This ruling is made in order to aid the court on the retrial of this matter.

Reversed and remanded for new trial. Costs to plaintiff-appellant.

Quinn, P. J., concurred