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Bigelow v. Agway Inc.

decided: November 21, 1974.


Appeal from an order of the United States District Court for the District of Vermont, James S. Holden, Chief Judge, directing a verdict for defendants in a diversity suit for fire loss allegedly caused by defendants' negligence and breach of warranty in the sale of a product called "Hay Savor" used to treat moist hay which, after having been treated, baled and stored, spontaneously combusted and burned down plaintiffs' barn. Reversed and remanded for a new trial.

Hays, Anderson and Mansfield, Circuit Judges.

Author: Mansfield

MANSFIELD, Circuit Judge:

In this diversity action in the District of Vermont for recovery of losses sustained by plaintiffs Harold and Virginia Bigelow when a barn on their Vermont farm burned on July 8, 1971,*fn1 Chief Judge Holden, after all evidence offered by both sides had been introduced, directed a verdict in favor of defendants-appellees. Because we believe there was sufficient evidence to require submission of certain of plaintiffs' claims to the jury, we remand for a new trial.

The Bigelows conducted a dairy farming business on their farm near St. Albans, Vermont, where for eight years prior to the events giving rise to the present action they had been engaged in "the first and most respectable of all the arts,"*fn2 farming. Indeed Mr. Bigelow was shortly thereafter named "Vermont's Outstanding Farmer in 1972." "A better farmer ne'er brushed dew from grass."*fn3 He was experienced in baling and storing of hay, producing some 18,000 to 20,000 bales annually, which were stored in the Bigelows' barn.

Although "the ripe harvest of the new-mown hay gives it a sweet and wholesome odour,"*fn4 it must be allowed to dry before it is baled and stored. Although hay with a higher moisture content has an apparently greater nutritive value than that which has been more thoroughly dried, there is a substantial risk that when hay with high moisture content is baled and stored it will rot or mold. The heat produced by this process correspondingly creates a risk of spontaneous combustion when the hay is stored in a confined area. Good farming practice thus requires that hay be dried to a "safe" moisture level (approximately 20% to 25%) before it is baled.

In April of 1971 Mr. Bigelow heard from Stuart Newton about a product called "Improved Hay Savor," manufactured by the defendant Kemin Industries, Inc., and distributed by the defendant Agway, Inc., for which Mr. Newton was a dealer. "Hay Savor" is a chemical preparation which may be sprayed onto hay at the time of baling. Its purpose is to retard mold growth in baled hay. It was advertised as therefore enabling hay to be baled at higher moisture levels than would otherwise be possible, thus reducing the time hay had to remain in the fields at the mercy of the weather, and also improving the nutritive value of the baled hay. Another claimed effect was to reduce heating in higher moisture hay by means of retarding mold. Apparently persuaded, Mr. Bigelow purchased Hay Savor and related spraying equipment.

The event upon which the Bigelows' claim focuses occurred on June 15, 1971, when Stuart Newton and Thomas Nelson, a sales representative of Kemin Industries, paid a visit to Bigelow at his farm.*fn5 They accompanied Bigelow into the fields where unbaled hay lay drying. According to plaintiffs, Nelson at that time represented that the hay then in the field was safe for baling if Hay Savor was used. Bigelow testified that he then baled the hay despite his better judgment that it was still too green, that the hay was then placed in the center section of the barn, and that it was in this hay that a fire broke out as a result of spontaneous combustion. On the basis of this evidence plaintiffs contend that Nelson's statement that the hay was safe to bale was negligent, and that his representations constituted a warranty that Hay Savor would make the treated hay safe to bale, but that Hay Savor in fact failed to live up to these representations. There was a great deal of proof contradicting Bigelow's account of the June 15 meeting with Nelson and casting doubt upon Bigelow's claim that the fire began in bales stored on June 15. For instance, there were contradictions in plaintiff's own testimony concerning whether any untreated bales put up before Nelson's visit had been stored in the same section of the barn as those bales treated with Hay Savor.

In directing a verdict against the plaintiffs on both the negligence and warranty theories, Chief Judge Holden concluded that no competent evidence had been presented that the product Hay Savor was dangerous or defective or that Bigelow had relied on Nelson's statements in baling hay with a high moisture content. Moreover, the court found that there was a failure of proof that the fire started in bales of hay treated with Hay Savor after Bigelow's conversation with Nelson.


In determining whether a motion for a directed verdict should be granted, the evidence must be viewed most favorably to the party against whom the motion is made, O'Connor v. Pennsylvania R.R., 308 F.2d 911, 914-15 (2d Cir. 1962). The non-moving party is given the benefit of all reasonable inferences from the evidence, and evidence unfavorable to it may be considered only if that evidence stands uncontradicted and unimpeached. Simblest v. Maynard, 427 F.2d 1, 4-5 (2d Cir. 1970); Kremer v. Fortin, 119 Vt. 1, 117 A.2d 245 (1955). See also 5 Moore's Federal Practice para. 50.02[1] (2d ed. 1974). Applying this standard, we find that, despite the proof supporting defendants' position, there was evidence upon which a jury could reasonably find for the plaintiffs.

Evidence of Reliance

Although Bigelow never testified specifically that he relied on Nelson's representations in baling high moisture hay, a jury could infer that he did so since his testimony reveals that he treated and baled the hay in its condition at that time because of what Nelson told him. It is undisputed that during his visit Nelson employed a testing device to determine the moisture content of the hay in the field, and that the moisture level was about 32% to 34%. Asked whether he had ever baled such hay, Bigelow replied, "No, I wouldn't have." (R. 64). Bigelow suggested that Nelson's visit changed this practice, however:

"Most of the hay is put up in a wind row then we just go along after the top dries, we go along with the brake and just roll it over and then we always let it dry but that particular day when he let it ride with the moisture meter, he said it was ready for ...

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