No. 12237 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1972

GEORGE WADDELL, Plai-ntiff and Respondent,

-iMERICANBREEDERS SERVICE INC., a corporation, Defendant and Appellant,

Appeal. from: District Court of the Sixteenth Judicial. District, Honorable A. B. Martin, Judge presiding. Counsel. of Record: For Appellant: Lucas, Jardine & Monaghan, Miles City, Montana. Thomas M. Monaghan argued, Miles City, Montana. For Respondent: Gene Huntley argued, Baker, Montana.

Submitted: October 20, 1972 Decided:

## JAE117 1973Mr. Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from a jury verdict in favor of plaintiff in an action to recover damages brought in the district court of the sixteenthjudicial district, county of Custer. Defendant moved for a judgment notwithstanding the verdict and for a new trial. Both motions were denied. Hereinafter, plaintiff George Waddell willbe referred to
asWaddell, and defendant American Breeders Service, Inc. will be referred to as ABS. Waddell isa cattlerancher operating inthe Pine Hills, east of Miles City. In 1966, he had built up a herd of some 200 to 250 head of cows and some 100 to 150 yearlings in a calf-cow operation. He became interested in the ABS artificial insemination program through discussions with BillStewart, the ABS representative in that area. He was told by Mr. Stewart that if he used the ABS service he would have availablebetter bulls, that he would get bigger and more uniform calves; that such servicewould be as successful as natural service; that such service would be just as cheap; and that he could get 70% service during the firstheat period and should get 70%calves. During the 1966-67 winter, Waddell enrolled in a school held by ABS atMiles City, where he learned how to successfully artificially inseminate hisherd. The cost of the course was $100. At the school he was given a manual entitled "American Breeders Service A1Manual--Management Manual". This book was introduced as an exhibit and considerable testimony was introduced by reading from the manual headings such statements as: "The maximum use of outstanding bulls"; "~reatly increased uniformity";

I I

Improved cow herd"; "Carcass quality improvement1'; and "Under good management most operators report 80 to 90 percent". From the manual the following was read into the record:"The range inheat detection levels reported around the country shows a relativelywide variation. Under good management most operators report 80 to 90 percent detection rates for first service. Assuming a 70 percent conception this percentage of cows settled after one cycle compares very favorably with natural service averages under similar conditions. 

# "**

# * itwould be just ascheap or cheaper than using natural service.It As part of the schoolingWaddell was urged topurchase frozen semen from ABS for thesereasons: 

### 1. Maximum use of outstanding bulls. 2. Increase the uniformity inhis calf crop. 3. An improved cow herd. 4. Carcass quality improvement. 

### 5. Improved herd records. 6. Better health protection forhis livestock. 7. Better protection against inherent defectswith respect tohis livestock. 8. Facilitation of crossbreeding. 9. A cheaper method of breeding than natural service. As a result of the school and waddell's interest in the program, inthe spring of 1967he purchased 40 ampules of Black Angus semen from ABS bull Skylandmere, touse for the 1967 breeding season. Waddell's cattlewere Hereford and the reason he gave for purchasing Black Angus semen was to crossbreed and thereby get a black calf with either 

### a white orbrockel face, He maintained that by using this systemhe could tell those calves that came from the artificial insemination from those siredby his own Hereford bulls, For the 1967 breeding season Waddell picked atrandom from hisherd about 50 cows tobe inseminated. Waddell performed the insemination work, put the cows intoa separate pasture and put a clean-up bull inwith them. As a result of this firstyear program, his 1968 calf cropwas
a littleabove 70%and hewas well satisfiedwith the program. For the 1968breeding season,Waddell placed another order for forty ampules of frozen semen from the same bull, Skylandmere.

### That year instead of a random selection,Waddell picked his best
cows and the earliest calfing cows. 55 of these cows were picked and inseminated. All were Herefords. In 1968, the inseminationwork was done by KellyWaddell, plaintiff's son,hereinafter called Kelly. Kelly alsohad some cattle and during the year 1967-68he had become interested in the artificial inseminationprogram. He attended the same school his father had attended during the 1967-68 session. When Waddell ordered his 

### 40 ampules from Skylandmere,Kelly put in an order for 16 ampules of semen from the bull Leader, a Shorthornbull. Kelly and his father conducted their artificial insemination program togetherwith Kelly doing the work and Waddell riding herd and observing. The semen they purchased fromABS came in
a jug or refrigerator,where itwas kept frozenby nitrogen. Kelly testified, as did Waddell fromhis observation, that the
cawswere uniformly inseminated; that no special problems arose in the process; and that the weather factorwas good, Bill Stewart, the ABS representative,was present during part of the work to
see ifKellywas doing it correctlyand Stewart helped with 6 to 8

### cows. Upon completion of the insemination, the cowswere turned into a separate pasturewhere Waddell had a clean-up bull to
cover those cowswhere artificial inseminationdid not take. Severalweeks laterWaddell noted that the clean-upbull was over used, so he put in another bull. When the spring of 1969 came,Waddellwas facedwith a crop failure. Of the 

### 40 ampules of semenused,he got only 

### 3black calves; as against the 1968 crop of 

### 70% he had but 7% in 1969. Yet, Kelly's cows, impregnated at the same time as Waddells, resulted in: 12heifers were impregnated; 1 died, 

### 3were sold
as bred heifers, and of the remaining 8

### heifers 6were crossbred. 

### A 75% result. So, the two herds handled under exactly the same conditionsby the same inseminator resulted inWaddell getting
a 

### 7% calf crop, and Kelly a 75%. The one difference being that Kelly had semen from a differentbull.Waddell notified BillStewart in the spring of 1969 of his calf crop failure and Stewart immediately contacted ABS offices to check what might have happened. Atthe request of ABS stewart had Waddell collect allthe used ampules. Each ampule had a code mark that identified it asbelonging toa certainbull, which aided ABS to trace the semen to the exact date of collection, processing and shipping. Shipments of semen from the same bull, with the same code, were traced to other cattlemen and some of itwas recovered for testing. Tests were made by the ABS laboratory and by Dr. Peter Burfening, an assistant professor of physiology in the animal science department of Montana State University. His test figures corresponded favorably with the tests conducted by the ABS laboratory inthat they found the frozen semen from 35%to

### 40%motile. The ABS tests showed a 29%motility factor. Both Dr. Burfening and Dr. Bartless, vice-president of ABS, testified that these percentages
were within acceptable standards. Defendant sets forth four issues for consideration: 1. Whether the district court erred inrefusing to direct

a verdict in favor of defendant and against plaintiff at the close of plaintiff's testimony? 2. Whether the district court erred inrefusing to allow defendant topresent the testimony of Jack M. Brooks and Louie Petrie? 3. Whether there were errors in law occurring at the trial and excepted toby defendant, which prevented defendant from having
a fair and impartial trial? 

### 4. Whether the district court erred ingiving and refusing certain instructions to the jury? The first issue alleges error in the trial court's refusal to direct a verdict indefendant's favor at the close of plaintiff's
case on either of plaintiff's theories of express or implied warranty. ,This Court inMueller v. Svejkovsky, 153Mont. 416, 420, 455 P.2d 265, held:
It

On an appeal from a motion denying a directed verdict there are three ruleswhich apply. (1) The evidence introduced by the plaintiff will be considered inthe light most favorable tohim. (2) The conclusion sought tobe drawn from the facts must follow as a matter of law. (3) Only the evidence of the plaintiff willbe considered." Where there is substantial evidence to support the trial court's findings atthe conclusion of plaintiff's case, and there isno clear preponderance against it, the court's rulingwill not be disturbed on appeal. Spencer v. Robertson, 151Mont. 507,

Defendant argues that even ifwe find the trial court was not inerror, that the issuemust be resolved in 

### its favor due to the fact there was a failure totimely notify the defendant. As we view defendant's argument, plaintiff should have notified defendant when he found hehad an overworked bull, not some ten months laterwhen he found he had a 

### 7%calf crop and not the 70%of the year before. We find no merit tothis argument. Nor can we accept defendant's argument that as a matter of law plaintiff did not give notice of a breach of warranty until afterhe should have discovered it, Defendant submitted
an instruction that allowed the jury toconsiderwhether the notice was adequate. Court's instruction No. 12 reads: 

## " A seller isnot liable for a breach of warranty unless the buyer gave him notice of such breach within a reasonable time after the buyer knew, or as a reasonable person ought tohave known of the alleged breach of warranty. What amounts to a reasonable time depends upon the circumstances and the kind of product involved.
It

Notice may be oral or inwriting; no particular form of notice isrequired. It merely must inform the Seller of the alleged breach of warranty and the buyer's intention tolook tohim for damages. Whether the buyer gave this information tothe Seller and if so whether he acted within a reasonable timein this case, is for you todetermine, 11 In effect, defendant wants it two ways. AttrialABS asked for and'got an instruction asking thejury torule on the notice in

### its favor, and when thejury did not, it asks this Court torule that the instruction should never have been given. This 

### we cannot do, for todo sowould allow defendant toput the

### trial court in error on its own instruction. We have held that where a party fails to make an objection to an instruction, it is bound by it. Sederv. Peter Kiewit sons' Co., 156 Mont. 322, 479 P.2d 448;Nelson v. C & 

### C Plywood Corp., 154Mont, 414, 465 

### P. 2d 314, 39ALR3rd 893; 5 C.J.S. Appeal & 

### Error $ 

### 1514; 5 Am Jur 2d, Appeal & 

### Error $ 

### 618. Having been so instructed, it became a jury question as to whether or not the noticewas adequate timewise. The Fourth Circuit Court of Appeals in Gober v. Revlon Inc., 317 F.2d 47, construing a California statute similar to our statute on notice, ruled that a sixmonths delay in giving notice was not unreasonable
as a matter of law. See also: Maecherleinv. SealyMattress Co., 145 C.A.2d 275, 302 P.2d 331. ~ontana'sstatute, section 87A-2-607,

### R.C.M. 1947,provides in pertinent part: "Where a tender [of goods] has been accepted "(a) the buyer must within a reasonable time after he discovers or shouldhave discovered any breach notify the seller of breach or be barred from any remedy". This being 

### a jury question and the jury having found proper notice was givenwhen Waddell foundhehad only a 7% calf crop in the spring of 1969,we find no error. Defendant relies on Whittingtonv. Eli Lilly and Company, (D.C. W.Va. 

### 1971) 333 F.Supp. 98, to support its position that there is no express or implied warranty in this case. Whittington is not comparable on the facts. There, a woman purchased birth be controlpills which were claimed to

### / "virtually 100% protection". Theywere not 100% effective,and shebrought the action on a breach of warranty theory against the drug manufacturer. The uncontradicted proof showed a pregnancy rate ofwomen taking the pill never exceeded 1.9 pregnancies per 100women on the pill. The court held this percentage provided "virtually 100% protection". Too, inWhittington, the actionwas brought by a remote purchaser apparently on a common lawbasis. Here, the action is brought

### under the Uniform Commercial Code, sections 87A-2-313,314,315, R.C.M. 

### 1947,by a purchaser directly from the seller, In the instant case,warranties made to Waddell were not met, nor were those implied warranties of merchantability and fitnessmet. Prior to using artificial inseminationWaddell got
a 

### 95% calf crop via natural service, In 1967,he got a 70% calf crop with artificial insemination; in 1968he got a 7% calf crop using semen from the same bull, under almost identical conditions. The only logical inference is that somethingwas wrong with the semenpurchased in 1968 fromABS by Waddell. ~efendant'ssecond issue concerns the trial court's refusal to allow the testimony of Louie Petrie and J.M. Brooks. We findno error in the court's ruling. The testimony did not bear directly on the specific issues presented, Mr. Brooks, a rancher living at Cohagen,Montana runs a cow-calfoperation of between 300 and 400 head. He had used the artificial inseminationprogram for some five years, and kept rather complete records of his breeding program. Defendant sought to introducehis testimony to show the management techniques used inhis artificial insemination program, the importance of the inseminator,and the importance of keeping records. Defendant argues that such testimony goes directly to the issue because of the fact that Waddell kept no records, contrary to instructions given at the school;and that this was a primary cause or factor inWaddell's calf crop failure. Too,Waddell had testified that he 

### knew at least 75% of his cattle by sight and defendant desired to get from ~rooks'testimonywhether that 

### 75% identification
was common. Also, Brooks had used semen from Skylandmere in 1968 with successful results. The court ruled that Brooks could testify if defendant could establish that Brooks used Skylandmere's semen labeled 804K, 

### could identify it, and got calves. Apparently this could not be established; defendantwithdrew Brooks as a witness,

### The testimony of Petrie, a rancherwho also used ~lcylandmere's
semen in 1968,was offered for the same reasons that ~rooks' testimonywas offered and was not allowed, in that such testimony did not relate to the facts of this case. We find no error. ~efendant'sthird issue conernswhether or not defendant received a fair trial, This issue reargues issue No. 

### 2 and further argues that the court erred in allowing Kelly Waddell to testify as to why he got over a 

### 70% calf crop,while his father got only 

### 7%. Kellywas asked: "Mr. Waddell, do you know of anything that could account for the differencebetween the percentage of calf crop you received from cattle, and the percentage of calf crop your father received, other than faulty semen? " 

### Objectionwas made that the question called for a conclusion of the witness and invaded the province of the jury, The objection
was overruled, the court stating: "~ou'llhave an opportunity in cross-examination to explore his reasons,11 

### Kelly then testified: 

### "I don't see no reason to. The semenwas just bad." Defendant argues that this dealt with one of the main issues and was prejudicial. We find this not so. Defendant fully cross-examinedKelly, noted for the jury's consideration that he was not a licensed inseminator; that even though he had attended the schoolhe did not have a manual (he used his father's) and that he had only read part of the manual. All of this was before the jury,plus the fact that Kellywas supervised, at least for severalhead, during the inseminationprocess by ABS representative Bill Stewart, We find no error. The final issue concerns the trial court's giving certain instructions and its failure to give several of defendant's offered instructions, Defendant argues the court's failure to give several of defendant's instructions prevented the jury from being fully and properly instructed on the law applicable to the case,

### We have carefully studied the instructions given and those refused and find no error. Several of defendant

## 's instructions
were refused as being repetitious and properly so. The court properly instructed the jury on impliedwarranty and express warranty. Reading all of the court's instructions together
we find the jurywas properly instructed on the law applicable to the case. Defendant takes exception to the court's instruction on damages. Court's InstructionNo. 20 reads: "Every personwho suffers detriment from the unlawful act or omission of another person may recover from him a compensation therefor inmoney which is called damages. In this case detriment is the loss or harm suffered. The measure of damages is the amount which will compensate for all the detriment proximately caused therebyhereinbefore defined,whether it could have been anticipated or not.II 

### This is an approved 

### WIG instructionon damages andwe find
no error. Judgment of the trial court is affirmed.



# L' /z!h4W+$-&4 Assoc ate Justices