Opinion
35849.
DECIDED JANUARY 26, 1956.
Action on account. Before Judge Boykin. Meriwether Superior Court. June 30, 1955.
Erwin, Nix, Birchmore Epting, Bobby B. Mitchell, for plaintiff in error.
George C. Kennedy, W. S. Allen, contra.
1. The erroneous admission of opinion evidence as to a certain fact is usually not cause for a new trial where the same fact is shown by other opinion evidence of the same character to which no objection is made.
2. Whether or not an excerpt from the trial court's charge to the jury be erroneous, this court will not grant a new trial for such alleged erroneous charge where it clearly appears that the party complaining was not injured by such charge.
3. The excerpt from the charge complained of in special ground 3 was erroneous for the reasons stated in the opinion.
4. The general grounds of the motion for new trial are not now considered.
DECIDED JANUARY 26, 1956.
Arcady Farms Milling Company brought an action against L. Porter Betts and Mrs. Louell Betts on an open account for the principal sum of $4,134.37 plus accrued interest at six percent. To its verified petition was attached a statement of an account with L. P. Betts. After the defendants had filed their answer and cross-action, the plaintiff amended its petition to allege that L. Porter Betts and Mrs. Louell Betts had entered into a joint adventure to raise turkey poults; and, acting in the right of each other and as a partnership, they had bought 2,400 turkey poults from the plaintiff, and to secure the payment for the poults and feed they had both signed a mortgage, each in his own right, with Mrs. Betts signing as a feme sole. A copy of the mortgage is attached to and made a part of the petition. It was further alleged in the amendment that L. Porter Betts, acting for himself and as agent for Mrs. Betts, had bought and accepted feed from the plaintiff for which they were individually and jointly indebted to the plaintiff in the sum named in the original petition. A bill of particulars, showing "feed sold to L. Porter Betts individually and as agent for Mrs. Louell," was attached to the amendment. This bill of particulars shows the delivery of feed and medicines from Planters Warehouse Company (Tom Carroll) and Lester McCrary Son for a period from March 19, 1952, through December 9, 1952, together with interest charges through May of 1953.
The defendants in their answer and cross-action as amended denied that any amount was due the plaintiff and alleged substantially the following: The plaintiff furnished the defendant certain feed from its warehouse in Woodbury, Georgia, which is the merchandise for which suit is brought in the plaintiff's petition. The plaintiff represented that the feed was wholesome and recommended for the feeding of turkey poults. The feed which was furnished to the defendants was stored in the warehouse along with arsenic poisoning, DDT poisoning, and other insecticides of a poisonous nature. The feed sold and delivered to the defendants was exposed to those poisonous materials and became saturated and permeated with them. The defendants fed the feed furnished by the plaintiff exclusively to their turkeys, the turkeys became poisoned. The poisonous material with which the feed became saturated was cumulative in nature when taken into the alimentary system of the turkeys. Nine hundred of the turkeys ate a sufficient quantity of the poisoned feed to kill them. Those 900 turkeys were, at the time of death, of the market value of $4,950. The defendants purchased 2,400 turkey poults on or about March 15, 1952, and 912 of those poults died during the period from July 12, 1952, through August 17, 1952. Their average age at death was five months and the market value of poults of that age is $5.50 each. Those turkeys which survived were affected by the poison and did not gain weight in keeping with their age and the amount of feed they consumed. The defendants marketed 1,500 turkeys and they were underweight an average of four pounds each. The market price of those turkeys was thirty-five and one-half cents per pound. The defendants consequently suffered damage because of the underweight of the turkeys in the sum of $2,100. The feedstuff sold and delivered to the defendants by the plaintiff was worthless because of its poisonous nature. The feed sold to the defendants by the plaintiff was for the purpose of developing the poults into marketable turkeys. The plaintiff represented to the defendants that the feed was of good quality and free from any poisonous or deleterious matter and would provide the necessary nutriment for the turkeys so that they would attain maturity in a marketable condition. Turkeys which have reached the age of marketability and are not of normal weight are of less value than those of normal weight. The poisonous material with which the feed had become saturated prevented those turkeys which survived from attaining their normal weight. They were underweight an average of four pounds each and were worth an average of $1.40 each less than they would have been had they not suffered the damaging effects of the poisonous feed.
Upon the trial of the case the jury returned a verdict for the defendants in damages in the amount of $4,560. The plaintiff's motion for a new trial, based on the usual general grounds and four special grounds, one of which is but an elaboration of the general grounds, was overruled, and it excepted.
1. The erroneous admission of opinion evidence as to a certain fact is usually not cause for a new trial where the same fact was shown by other opinion evidence of the same character to which no objection was made. Trawick v. Chambliss, 42 Ga. App. 333 ( 156 S.E. 268), and citations. Under an application of this rule, the trial court did not err in overruling the first special ground (numbered 4) of the motion for new trial, in which complaint is made that the trial court erred in admitting in evidence over the objection that it constituted a conclusion of the witness, L. Porter Betts, the following testimony: "My opinion is that the feed was poisoned and it killed the turkeys." At two other points in his testimony, to which no objection was made, the same witness testified: "I found out that my turkeys were dying from arsenic poisoning after I changed feed and started feeding another feed"; and, "I said I knew there was a concentration of arsenic poisoning in these turkeys that caused their death."
2. In special ground 2 (numbered 5) of the motion for new trial error is assigned upon the following excerpt from the charge of the court: "If you find that there was no partnership existing between the two defendants, then that would end your investigation and you would return a verdict for the defendants," upon the ground that the trial court erred in giving such excerpt in charge to the jury when no issue was made in the case as to whether or not a partnership existed between the two defendants as, under the state of the pleadings in which the case went to trial, the allegation of the petition that such a relationship existed between the two defendants was admitted and no plea of nul tiel partnership had been filed. Whether or not the trial court erred in giving the excerpt in charge (in that connection see Crockett Co. v. Garrard Co., 4 Ga. App. 360, 61 S.E. 552), it is clear that the plaintiff was not injured by such excerpt. The plaintiff's action on account was lodged against the defendants as a partnership. While the defendants denied on the trial that such a relationship existed between them, they brought their cross-action against the plaintiff as partners. Under the court's charge it was necessary for the plaintiff to establish the partnership relation in order for the plaintiff to recover and it was also necessary for that relationship to exist in order for the defendants to recover on their cross-action against the plaintiff. Immediately following the excerpt of which complaint is made, the court charged the jury: "If you find, upon your investigation, applying the rules of law to the evidence in the case, that there was a partnership existing, as alleged by the plaintiff, then, gentlemen, you would go further and determine the other issues [made by the cross-action] which I will call to your attention." (Brackets by this court.) The jury returned a verdict for damages for the defendants against the plaintiff on their cross-action, and necessarily, under the charge of the court, which the jury was bound to obey, it found that the relationship between the two defendants was that of a partnership, and since the jury found that relationship to exist and still found against the plaintiff, the plaintiff could not possibly have been harmed by the trial court's injection of the issue of nul tiel partnership into the case.
3. In special ground 3 (numbered 6) of the motion for a new trial, the plaintiff contends that the trial court erred in giving the following excerpt in charge to the jury: "I charge you further that if you find from the evidence that the feed for which the plaintiff sues was contaminated with poisonous materials and that such poison rendered the feed worthless, then, in that event, you should find for the defendants. If under the law as given you in charge you find that plaintiff is not entitled to recover for the feed, for which the plaintiff sues, then you would go further and determine from the evidence if the defendants have suffered damage by the plaintiff's furnishing such poisonous feed, if you find that it was poisonous. You will then look to the evidence to determine the amount of damages suffered by the defendants, and, applying the rules of law given you in charge, fix the amount that you find the defendants are entitled to recover." The plaintiff's criticisms of this excerpt from the charge are that it authorized and required the jury to find that the defendants were not indebted to the plaintiff in any amount in order to award any damages to the defendants on account of their alleged loss of turkeys caused by the poisonous feed; that the uncontradicted evidence showed that the account covered feed and various other items delivered over a period from March 19, 1952, to December 9, 1952, which the defendants admitted receiving, while the only feed shown to have been contaminated was that which in the opinion of L. Porter Betts was contaminated and which was delivered "from along the first of July until the middle of August." We think this criticism of the excerpt from the charge to be well taken. The only damage to the defendants proved was the loss of 912 turkeys of the market value of $5.00 each. The product of those two figures, namely, $4,560, was the amount of the verdict returned for the defendants. The plaintiff was entitled under the pleadings and evidence to a set-off against those damages for all the items covered in the account which did not consist of feed and for all the feed which was not contaminated. The court's charge did not permit of such a set-off and since from the evidence this court cannot say what sum should be allowed for uncontaminated feed, a new trial must be granted. The defendants' contention, that the jury could have found that some of the feed for which they had already paid was also contaminated and that the jury made allowance in its verdict for that so as to counter-balance the non-feed items, is completely without merit. No such issue was made by either the pleadings or the evidence. The suit involved no items for which payment had been received and the defendants in their answer made no contention that feed for which they had already paid was contaminated.
4. As the case must be remanded for a new trial the general grounds and special ground 4 (numbered 7), which is but an elaboration of the general grounds, are not now considered.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.