Opinion
37085.
DECIDED APRIL 8, 1958. REHEARING DENIED APRIL 21, 1958.
Action on account; cross-action for breach of warranty. Fulton Civil Court. Before Judge Parker. January 9, 1958.
Howard Harmon, James C. Howard, Jr., for plaintiffs in error.
Houston White, contra.
1. There was sufficient evidence to present a jury question as to whether the defendant exercised ordinary care in discovering the breach of warranty and avoiding its consequences.
2. The verdict was supported by the evidence and was not excessive.
3. A diagnosis may not be proven by the introduction of a document within which it is contained, because a diagnosis involves conjecture and opinion and must be subjected to the safeguard of cross-examination of the person who makes it.
DECIDED APRIL 8, 1958 — REHEARING DENIED APRIL 21, 1958.
Fairburn Feed Poultry Company, a partnership composed of R. A. Hawkins and H. O. Cowan, brought a suit against Curry R. Jackson alleging that Jackson purchased 1,963 white leghorn chickens from them and has failed and refused to pay the account.
The defendant filed a cross-action which denied the material allegations of the petition and also filed a cross-action which alleged in part that: On February 28, 1957, the defendant bought and paid for 1,500 white leghorn pullets, at a purchase price of $1,800; the chickens were sold by the plaintiffs to the defendant to be used as laying hens; on March 15, 1957, the defendant purchased 1,915 more of the same type chickens and it was agreed that he would pay $1.25 per chicken later in the year; at the time of the delivery of all the chickens they were suffering from a disease known as C.R.D. or chronic respiratory disease, complicated by coccidiosis and a generalized secondary bacterial infection; the disease causes a high mortality rate and makes chickens worthless as laying hens; the defendant did not know the chickens had the disease at the time of delivery; because of the disease, and in an effort to lessen his damages the defendant sold 2,987 of the chickens for meat purposes, receiving $1,116.20 from the sale; when the defendant noticed the chickens appeared to be sick he notified the plaintiffs; one of the plaintiffs came to the defendant's farm to inspect the chickens and assured the defendant that the chickens were not diseased, but merely needed an antibiotic feed; the defendant followed this instruction at a cost of $264.21; the defendant also spent $180 for veterinary services in an effort to discover what disease the chickens had and attempting to cure them; being unable to cure the chickens the defendant sold them upon the advice of the veterinarian as above alleged; as a result of the delivery of the diseased pullets to the defendant's chicken houses, the defendant has and must incur the expenses of cleaning and disinfecting the building at a cost of $1,500; had the chickens been free of disease the defendant would have realized a profit in the sum of at least $3 per chicken or $10,245 which the defendant alleges as a loss of profit directly flowing from the breach of warranty by the plaintiffs.
On the trial the jury returned a verdict of $7,761.80 for the defendant on his cross-action. The plaintiffs filed a motion for a new trial which was denied. It is to this ruling exception is taken.
1. In the general ground of the motion for new trial the plaintiffs insist that the defendant should not be allowed to recover because the evidence shows that he did not exercise ordinary care in discovering that the chickens were diseased and thereby avoiding the consequences of the breach.
The defendant testified in part: that he called the plaintiffs a day or two after he received the first shipment of chickens and told them the chickens did not look good; that he called Mr. Cowan, one of the plaintiffs, several times but it was a month before he came out to see the chickens; Cowan told him the chickens were all right and to put them on antibiotic feed; that the defendant followed Mr. Cowan's instructions; as the chickens got worse he continued to call Cowan and he did not come out to see the chickens for some time; he told Cowan the State laboratory had diagnosed the disease as C.R.D.; the chickens kept dying and he sold the chickens, under the advice of his veterinarian, for meat purposes.
The evidence was sufficient to support the finding of the jury that the defendant used ordinary care to discover the disease and in avoiding its consequences. The general grounds of the motion for new trial are without merit.
2. Special ground 1 of the amended motion for new trial complains that the verdict of $7,761.80 was excessive. The defendant testified: that as a result of the disease he paid $180 to veterinarians for their services; that he spent $197 for additional medication that was added to the chicken feed. Under authority of Snowden v. Waterman Co., 105 Ga. 384 (4) ( 31 S.E. 110), the above expenses were recoverable as special damages. There was also evidence that: at least 3,415 chickens were purchased by the defendant for laying purposes; the defendant paid $1,800 for a portion of the chickens, the remaining account being credited; 25 or 30 percent of laying hens either die or are culled during their normal productive life; the hatcheries guarantee 95% of the chickens will live for two weeks; that the chickens were at least ten weeks old when purchased by the defendant; the average profit is $2.50 to $3.00 per hen; the defendant received $1,116.20 from the sale of the remaining chickens for meat purposes and between 25 and 30 cents per dozen for the eggs the chickens laid while in his possession. The above evidence under the holding in Hall Brothers Hatchery v. Hendrix, 72 Ga. App. 137 ( 33 S.E.2d 370), a case very similar to the present one, authorized a recovery of special damages for the loss of profit over the full productive life of the chickens, less that percent that normally die or are culled.
We assume that 20 percent of the chickens would have died or been culled during the period the defendant would have had them (hatcheries only guaranteeing 95% would live the first two weeks), because the chickens were at least ten weeks old when purchased by the defendant.
The special damages plus the $1,800 paid for the first shipment of the chickens, less the sum received by the defendant from the sale of the chickens and eggs amounts to a figure greater than the verdict which was returned. The verdict was not excessive and special ground 1 is without merit.
3. Special ground 2 assigns as error the rejection by the court of certain documentary evidence. This document excluded from the evidence was a laboratory report of the Georgia Department of Agriculture, Veterinary Division, Pathological Laboratory. The plaintiffs insist that the laboratory report would have proven: that the defendant had in 1954 purchased chickens from Ball Hatchery in Owega, New York, and that the chickens previously purchased had C.R.D.; that the chickens in the present case could have contracted the disease because of being housed in the same building which was previously occupied by the diseased chickens in 1954.
The laboratory report in question does not state that the chickens purchased in 1954 had C.R.D., but in the blank provided for the diagnosis appears the following: "S1. indication of C.R.D."
The diagnosis in the document in question involves conjecture and opinion and it must be subjected to the safeguard of cross-examination of the person who makes it, which it obviously would not be if the court allowed the introduction of the laboratory report within which the diagnosis is contained. Under the ruling in Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872, 875 ( 99 S.E.2d 370) the trial judge properly excluded the document.
4. Special ground 3 is based on newly discovered evidence consisting of an affidavit of Margaret A. Lighteiser, the person who prepared the laboratory report discussed in the preceding division of this opinion. In rebuttal of this ground the defendant filed a counter-affidavit by the same Margaret A. Lighteiser in which she denied a majority of the material statements made in the original affidavit. The evidence being in conflict as to the truth of many of the facts claimed to be newly discovered and impeaching in character, this court will not interfere with the wide discretion of the trial court in refusing a new trial upon this ground. Colquitt v. State, 27 Ga. App. 44 ( 107 S.E. 396); Atlanta Consolidated Street Ry. Co. v. McIntire, 103 Ga. 568 ( 29 S.E. 766); Edenfield v. Brinson, 149 Ga. 377 (3) ( 100 S.E. 373).
Judgment affirmed. Felton, C.J., and Nichols, J., concur.