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Jacob Hartz Seed Co.9/25/2001
DATE OF TRIAL COURT JUDGMENT: 12/16/1999
TRIAL JUDGE: HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE
TRIAL COURT DISPOSITION JUDGMENT FOR PLAINTIFF FOR $162,742.30
DISPOSITION: AFFIRMED - 9/25/01
. On March 29, 1998, Simrall and Simrall (Simrall) filed a complaint against Jacob Hartz Seed Company, Inc. (Hartz) alleging breach of express warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, negligence and strict liability. Simrall requested damages for a reduction in crop yield for 1997, in the amount of $165,742.30. In a bench trial, held September 20-22, 1999, the Warren County Circuit Court determined that Hartz did not breach the implied warranty of fitness for a particular purpose or any express warranties, and because Simrall asserted only an economic loss, there was no cause of action for strict liability. The court concluded that the implied warranty of merchantability had been breached and awarded damages in the amount requested by Simrall including prejudgment interest at 8% per annum starting from the date of the filing of the complaint. Aggrieved by the court's judgment, Hartz filed a motion for a new trial. In that motion, Hartz requested a deletion of the prejudgment interest award. The court denied Hartz's motion for a new trial, but amended the judgment by reversing the award of prejudgment interest. Hartz has appealed and assigns as error whether Simrall, whose experts failed to test its Hartz seed, could carry its burden of proof to show viral infection by evidence of visual symptoms, particularly when other problems could have caused the visual symptoms.
. Simrall has cross-appealed, and raised the following issue: whether the court erred in denying its award of prejudgment interest.
. Finding no prejudicial error, this Court affirms.
FACTS
. Hartz publicized its roundup ready soybean seeds as top quality, disease resistant, high yielding seeds. Simrall purchased two varieties of the roundup ready seeds, 5164 and 6686, in May of 1997. Simrall planted 350 acres of the 5164 variety on June 3-5, 1997 and 450 acres of the 6686 variety between July 8-15, 1997. As they grew and began to produce, Simrall noticed that the pods were shedding on the 5164 seeds some time in July and immediately reported this information to Burney Westmoreland, a salesman for Hartz. Westmoreland notified Hartz and representatives were sent to inspect the crops planted with the 5164 seeds. Hartz representatives informed Simrall of the 5164's propensity for pod shedding and assured him that the pods would regenerate. However, most of the pods did not regenerate.
. Simrall called Dr. Alan Blaine, an agronomy expert, who made several trips to visit the crops planted with 5164 seeds in an effort to determine the problem. After the first visit, Dr. Blaine asked Dr. Moore, a plant pathologist, and other experts to inspect the seeds. Dr. Blaine and the other experts noticed that the 5164 seeds experienced excessive hilum bleeding, a brown or black discoloration running from the eye of the seed down onto the coat of the seed, which is indicative of the soybean mosaic virus (SMV). After several visual inspections and consultations with other experts, Dr. Blaine diagnosed the 5164 seeds with SMV.
. Prior to harvesting the 6686 seeds in mid-September, Simrall called Dr. Blaine again to inspect the 6686 seeds because they were not maturing. Dr. Blaine noticed similar problems with this variet
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