Opinion
34340.
DECIDED MARCH 14, 1953. REHEARING DENIED MARCH 30, 1953.
Damages; from Hall Superior Court — Judge Edmondson. August 20, 1952.
Wheeler, Robinson Thurmond, for plaintiffs in error.
Kenyon, Kenyon Gunter, contra.
1. The evidence demanded a verdict for the defendant, and the court did not err in directing a verdict for it and in overruling the motion for a new trial.
2. The defendant having introduced evidence and closed its case, the court did not err in directing a verdict instead of awarding a nonsuit.
DECIDED MARCH 14, 1953 — REHEARING DENIED MARCH 30, 1953.
J. K. Burns and J. L. Fulenwider sued Ralston Purina Company for damages for the death of 2200 turkey poults, allegedly due to molded feed sold to them by the defendant's dealer. The evidence was as follows:
Frank Garrison testified in part on behalf of the plaintiffs as follows: "In the latter part of March, 1949, Mr. Fulenwider and Dr. J. K. Burns had an agreement with me about raising some turkeys for them. I recall there were six thousand turkeys sent up there by these men. Explaining to the jury about the houses, they were put in when they were sent up there — how they were constructed and what condition they were in, one house is a concrete block building two hundred twenty feet long and thirty feet wide and the other house is a wooden building twenty-eight feet wide and one hundred thirty feet long, and the wooden building is divided into four sections — four pens with a feed room left in the middle between each of these two rooms — two feed rooms in it. The concrete block building is divided into eleven pens. . . I started off with, I believe — I think it was two bags of Arcadia turkey starter was what they brought — two bags in the truck or the car they delivered the poults — come with the poults on that. From then on until April 1st we used Arcadia feed, the same type we started off with. . . I was there when Mr. Taylor brought the bags of feed and signed for the delivery. Yes, I believe there were five bags of Startena Checkerettes and I believe there were two bags of Arcadia on the same delivery. I have a record of how many turkeys we had lost from the time they were put in there up until the time this Purina Startena Checkerettes was delivered at my place and have kept a record daily that I filed with you and in addition to that, I know approximately the number. We had lost between six and seven hundred in the large building, and lost seventy-five — seventy some odd — sixty some odd, I believe — less than a hundred. I don't remember the exact figure but it was approximately seventy turkeys in the wooden building where there was a little over two thousand up to the ten days, and we lost six or seven hundred in the larger building. I saw Mr. LeCoultre the day before the heavy death rate occurred, and sent word to Mr. Fulenwider that I was running out of feed. The feed that Mr. Taylor brought arrived before sundown. I wouldn't know the hour. . . I saw this feed myself. I had not had any other kind of feed other than the Arcadia feed until this Purina Startena Checkerettes was delivered. That is the only two kinds of feed we had at all. In the evening that this Purina Startena Checkerettes was delivered, my poults looked good to me. As to what happened to them that night and the next morning, I had just before this and at that time had two men and three women helping me with the turkeys, and took over the entire responsibility of keeping the fires in the wooden building and the coal brooders at night, and I got my sleep during the day. I always went to the building after supper when one of the day men left, and outside of firing the coal brooders I went through the other buildings to see the poults were under the brooders, and what condition they were in. I had come to the house and gone to bed and about sun-up one of the men come in to watch the fires, and I had hardly gotten to sleep when he come to the door and wakened me. I went to the building and found most of the turkeys in this building looked paralyzed, kind of sweltered down and wouldn't make any action. I came and called Mr. LeCoultre as soon as I could get him over the telephone. . . On the evening or night before, as soon as the Purina Startena Checkerettes came on the truck, right immediately I opened the bags and had the men to put it out in both buildings. As to how the Purina Checkerettes was distributed in the buildings, I put two bags of the Purina feed in the large building, and I put three bags in the small building and we still had some of the Arcadia feed in the troughs there in the main building — the big building. There was an extra sack or two further up in the building than the door. It's a long ways to carry it. The men carried it up and we finished supplementing to give sufficient feed in the troughs with this other feed to carry them well through the night. I was there when that was taking place in both buildings. After they were all fed, the other men left and I took over the fires and inspection for the night. I put so many bags in the big building to feed from where we unload it. As to where we put the Purina Checkerettes in the troughs, there was a part of the block building — the long building — that never did get any of the Purina feed in it. I think it was three pens that didn't get any of it. We had very little deaths in those pens. . . We put most of this Purina Startena Checkerettes in the troughs of the wooden building on the evening it was brought there. The condition of the turkeys before that feed was put in the troughs was what I would say a wonderful condition. The next morning they looked like they were paralyzed on the floor, nearly all of them. I was there when Mr. John Black and Mr. LeCoultre arrived. They went to looking at the turkeys, and then Mr. LeCoultre began picking up those that were most helpless apparently, and taking them to the light and cutting them open, and when he cut the first one open, Mr. Black come in and went down in the troughs and run his hands in the troughs and raised the feed up like that and smelled it and asked me to smell of it, and I did. I ain't got a very good smeller and wouldn't say I could smell anything very objectionable to me at that time. That was Purina Startena Checkerettes they were smelling of at that time. I fed that Startena Checkerettes to those turkeys in the same condition that it came to my place. There had been no change whatever in the condition after it was delivered to me before it was fed to them. I was opening the bags, putting the feed out before the truck got out of the gate leaving the place. I don't think it had been raining that day, but I don't remember definitely. Apparently the sacks were dry when we got them. As to the turkeys we lost in the small house, after feeding them this feed, it was over fourteen hundred in the next three days. I got a definite record of that that I kept on that building. I can give it to you if you want it. I will give you a record on all of them day by day. I am testifying first on my record, the one I kept day by day and counted the poults. This record is day by day, after they were put in there. The first day they were put in there I found one dead the next morning, one the next morning, and the next morning seven and the next morning eight in the wooden building. The next morning thirteen, the next morning nineteen and the next morning ten, the next four, the next two and the next none, a total of sixty-nine. That was up until they were ten days old. Then on April 2nd, after we gave them the feed on April 1st and April 2nd, we got out seven hundred twenty dead turkeys. That was after they were fed the Purina Startena Checkerettes. During the day we took them up about three times and I counted them myself. The next day I gathered up three hundred eighty-seven; the next day, one hundred eighty-three; the next day, seventy-nine, forty-two, seventeen and three, and then it dropped off and I moved them to the room in the other building. As to how many turkeys in all we lost, up to say noon on Thursday, we had in the big building — I lost six hundred ninety-five turkeys, according to the record given to me day by day from the help in that building, and during this period of nine days, the next nine days after that, I lost, the record shows, nine hundred ninety-nine out of that building. That is the block building. It started off two hundred ten on April 2nd, two hundred fifty-eight on the 3rd, two hundred eleven on the 4th, one hundred eighty-seven on the 5th, sixty-two on the 6th, thirty-eight on the 7th, eighteen on the 8th, seven on the 9th and eight on the 10th. I have nine hundred ninety-nine that died during that period of time I called to you. . . The total of all the turkeys that died within ten days after this feeding I might say was two thousand four hundred thirty. . . I was there when Mr. White and Mr. Fulenwider and Mr. Parks came up there. I gave them some of the feed that was taken out of the Purina Startena Checkerettes bags. This is the same feed that was delivered to me by Mr. Taylor. There was two bags of that feed — we hadn't emptied entirely all the feed and in order to keep it, I carried it to another building, a little crib, so none of the employees would get ahold of it, disturb it or mess with it until it could be determined what should be done with it, and I put it in a little barrel in there and kept it until these people came and called for it. So far as I know it was kept dry. I tell you when we got those sacks, the remnants that was left in the bags, it had developed considerably more than it had when I was using it, because if it had lumps and whiskers when I first saw it, when I put it in the building, I wouldn't have fed it to anything because, as big a fool as I am, I would have known something was wrong with it, but it showed up lots worse after it had been in the other building, and when the gentlemen came up and looked it over, than it did when I put it in there. I hadn't seen it from the time I dropped it in the kegs until they called for it because nobody but me knew where it was. . . The bulk of the deaths occurred after I fed the Purina Startena Checkerettes — it began the next day, the heaviest of it and then afterward through three days, and then tapered off. As to whether I quit feeding that stuff after that day, there was just a little left in the bottom of two sacks, and I emptied that that was in the troughs and went to feeding other feed.
"I said I wasn't blessed with a very good smeller. Yes, I know that the feed that Mr. Black put his hand in the trough and smelled of was Purina feed. You ask if I said that I mixed the Purina and Arcadia feed so as not to start off on new feed, there was some rooms when Mr. Black came out there, I don't think he went in them — there was some in the rooms that had both Arcadia and Purina feed in it, but this one room had less Arcadia in it. The troughs had been cleaned one time since they started and refilled. In fact I refilled those troughs during the night myself. Yes, I remember looking at the bags I filled the troughs with, but I didn't pay any special attention to it. I didn't see any need of paying special attention to it. I am sure I filled the troughs with feed that was brought that day. I didn't have any Arcadia in the feed room. I didn't have any Arcadia feed there. I had run out of Arcadia feed and I filled those troughs myself during the night with Arcadia feed. I was the last man that took feed out of the two bags in the feed room. It was the first feed room you come to in the wooden building. You ask about those two bags, when I got those and if they were one of the five bags I got. Some that came on the truck that afternoon. Two of the five bags that came on the first of April. There was two bags put in the feed room and one in the next feed room in the wooden building — three bags in the wooden building and two of the bags set out in the block building. The reason we divided it that way was we had more on hand of Arcadia in the other building than we had down there, and if I remember right, it was on Friday and I was trying to spread it out until I could get more on Monday. I had heard that it was not good to change turkeys from one feed to another and that was the reason I was doing it gradually, and for that reason I used Arcadia feed throughout both houses to gradually make the change. Not all of the turkeys in both houses had Arcadia and Purina feed before them at all times. Some of the rooms [in] the long building never did get any of the Purina feed — the big building. That was on the upper end — too far to tote it — had some on the end that never did get any of the Purina feed. Yes, two sacks of the Purina feed were put in the long building, but the three upper rooms never got any. Of that I am positive. I didn't actually pour the feed in both houses in the troughs, only occasionally in either one of them. At that time I had five helpers and I stayed among them a lot of the time. I opened the sacks and filled up the coal scuttle, which we used to pour it out of. Some of the helpers helped open the sacks and I did not have any of the helpers up there when I was not there. Q. Can you swear that none of that Purina feed got in none of the two rooms while you were not there? Do you know what happened while you were not there? A. No. . . I had two sacks of Arcadia feed that was set off in the upper room in the morning — in these three upper rooms the morning that the other feed came in there, and they never did get emptied until we got the other feed in . . . Nobody but me fed during the night unless it was me. If I found any troughs empty and I was back and forth all of the way through the building day and night, and I never saw any of the Purina feed up there in sacks or buckets or in the troughs. . . You ask if I could swear that none of the helpers in my absence put any of the feed in the two rooms. I wouldn't swear they did. To my knowledge and belief, there was certainly not a dust of Purina feed in either of those rooms. I was not up there all of the time they were putting feed in the two rooms. . . When I realized something was killing the turkeys and they came up and found the moldy feed, I took that feed out of the troughs and cleaned out all of the troughs. No, I did not put some in the sack to save as a sample. As I recall, I put the stuff out. I kept what we had in the two sacks that hadn't all been used out. To my best recollection and knowledge, those two sacks were all I kept it in and I carried it to the other house, which we were talking about. . . It is right that in a period of seven to nine days I had a six hundred ninety-five loss even before I started feeding Purina feed. In the same building, after I fed Purina feed for the next ten days I lost nine hundred ninety-nine. Actually, my loss was over sixteen hundred in that building, all told. . . You ask about the whole time I had the turkeys I had the turkeys if the heaviest loss was in that building. We set two sacks in this building, and the heaviest loss in proportion to the turkeys was where the least loss was in the first ten days. They had the most Purina feed in there. There was two bags there where there was a few over two thousand and two bags put where there was over four thousand. I lost less after I started Purina feed in the building where there was less Purina feed."
J. E. LeCoultre testified for the plaintiff in part as follows: "I am Julian E. LeCoultre and at present I am engaged in business as a poultry and feed dealer. I have had about eleven years experience with reference to feeds and turkeys and chickens and poultry of all kinds. I have dealt with feeds and observed the growing of poultry of all kinds as a feed salesman and service man. As a service man it was my duty to check flocks we were feeding, also sanitary conditions before turkeys and chickens were put in. Any disease troubles we supervise and give recommendations. For about eleven years I have been connected with the sale of feed. My prior experience in that line was about eighteen years. . . I was there the day the poults were put in, and in fact, delivered the poults myself and helped put them under the brooders. I was there almost every day from the day the poults were put in until this trouble happened. I was there the afternoon before the trouble happened. The condition of the turkeys at that time was splendid condition, doing fine. They were eating all right, flying and playing over the house. . . I reported to Mr. Fulenwider to send up some feed. The next morning Mr. Garrison called me about eight to eight-thirty. After the conversation with Mr. Garrison, I went up there. When I got there, I found the condition being that the floor was full of dead turkeys and they were still dying. I had seen the turkeys the evening before. As to how many turkeys I observed there that were sick and dying, it would be hard to say. I don't know. All I know is what was said later. . . You ask what was the matter with those turkeys. They were poisoned. I determined that fact because they were black. We opened four or five and they were black as they could be on the inside, also had a gangrenous odor in the craw. We cut them open and examined their insides and the craw and they were black. Their normal color is pinkish color or red. All the troughs there were full of feed, and we examined that. It was molded and had a very strong odor. We examined some feed in Purina bags. I know what brand it was in the bag we examined, and it was Purina. The name of the feed was Purina Turkey Starter. I think it is referred to in the trade as "Startena Checkerette". . . We went up to Mr. Garrison's corn crib and Mr. Garrison and Mr. Fulenwider went into this crib and brought out a piece of bag of Purina feed, it was in a Purina bag. We examined it and it was full of large moldy lumps. It was very muchly spoiled. Feed in that condition would not be suitable to be fed to turkey poults of the ages those were. I don't remember distinctly what Mr. White said about the feed. I know he examined it. It was discussed about its being molded, about the condition of the feed, and Mr. White took a sample of it. He took a lump out of the bag, a considerable size lump. I would say six inches in diameter. That is not the normal state for that type of feed. Yes, I saw some of that type of feed that come out of the bag in those troughs where the turkeys were dying. It resembled the same feed. I was familiar with the looks and appearances of turkey Checkerettes or startena. I had known that type of feed for several years, and had been seeing it all along, and was familiar with its appearance. There was not any difference in the appearance of that Purina feed that I could tell in looking at it. There was a difference in that and other feeds that I had sold for the company. The difference was one was checkerette and the other mash. You ask if there was any difference in the color of it. I think there is normally, I am sure there is. Yes, an ordinary person by just observing could distinguish between the two feeds when they are side by side. Anyone should recognize the difference in the checkerettes and the mash form, but whether they would recognize one as Purina and one as Arcadia, I don't think so. They could tell the difference between the looks of the two feeds. There had not been any other feed other than Purina and these turkey startena checkerettes given these turkeys that I know of. That was the only two feeds up there. . . I couldn't swear whether the molded feed came from Purina or Arcadia feed. . . No autopsy was performed on the turkeys other than what I performed when I cut them open. I didn't take any of the birds to have them examined by a pathologist. . . It is not necessarily the better way to determine the cause of death of turkeys by having them examined in a laboratory. You can do it just as well, absolutely, depending upon what you are looking for. The symptoms I found were black color and musty gangrenous odor. The condition of the liver was dark throughout, the condition of the rest of the inside of the turkeys was all uniformly black. I had had that experience with turkeys dying from poison before, molded feed at different places. I don't remember what kind of feed that was. I have had experience from turkeys dying from something besides molded feed. As to other poisons, turkeys eat each other after they are dead. When they do that produces a different poison than moldy feed. . . All moldy feed is poison to turkeys. I know that for a fact, and also poisonous to baby chicks. Some growers might feed damaged feed but not moldy feed. Yes, I swear to the jury that any moldy feed is poisonous to turkey poults and baby chicks, and any feed in the proper form will not have any mold in it. Moldy feed will not only poison turkey poults and baby chicks, but will kill them. . . I couldn't swear that it was Arcadia and Purina Checkerettes that was actually fed to the turkeys. . . When we discovered the condition of this feed, I smelled it. It had a musty odor and was molded. It would be hard to swear that it was Arcadia feed. It was similar to that we found in the Purina bag."
J. L. Fulenwider testified in part as follows: "Stating what happened up there when we went to Mr. Garrison's place, with Mr. Parks and Mr. White, representing the Purina Company, we got to the farm, and Mr. White and his parties were already there, we were discussing the feed as being damaged feed, molded feed and causing the death of the poults, and Mr. Garrison, and I am not sure whether Mr. Parks, went into the barn and got the feed Mr. Garrison said was left. It was taken out of the feed that was left that we had purchased from Parks' Feed Store. I guess there was twenty-five or thirty pounds of feed left in the bag, and we took out of the barrel, the feed was in the bag in the barrel, and brought it out on the outside where we were all standing talking and we examined it and Mr. White got two or three big lumps out of it himself and carried along and I got some also, but we determined there and knew the feed was molded. It was molded. It had a musty, molded odor. The can of feed that you show me here in court is some of the feed taken out up there. That can has been in the safe in our office in my possession since that time, and it is part of the feed taken out of the sacks. Mr. White agreed it was molded, it was damaged feed. . . Arcadia was starting turkeys on starter mash, turkey starter at that time, and it is in the form of a meal. I have seen Purina turkey checkerettes, and they are easily distinguished from meal. . . I never did see that feed before I went up there after the death of the turkeys, and don't know anything about the condition of the feed until that date."
The defendant did not offer any witnesses or testimony, but introduced certain documentary evidence. When all the evidence was in, the court on motion directed a verdict for the defendant. The plaintiffs' motion for a new trial, based on the general grounds and the special ground that the court erred in directing a verdict, was overruled and they except.
1. Before entering into a discussion of the contentions of the plaintiffs in error, the following facts should be restated. Two lots of turkey poults were received at the Garrison farm, not on the same day, but a day or two apart. They were respectively hatched in Virginia the day before they arrived by express for delivery to Garrison. All of the first batch were put in the large building. Of the second batch some went in the large building and some in the small, there being about 4000 in the large building and about 2000 in the small building. For a period of about eleven days to April 1, 1949, all were fed exclusively with Arcadia feed. Within that period there were deaths as follows: In the large building, 695. In the small building, 69. There was testimony that normally the death rate is about 10 percent. On this basis the deaths should have been about 400 in the large building, but there was testimony that 695 could not be considered excessive, that is, was "not bad." In the small building the loss was less than 10 percent. Feed being low, Garrison, on April 1, 1949, ordered an additional supply and received two bags of Arcadia and five bags of Purina feed. At the time of its arrival late in the afternoon, all turkeys were in excellent condition insofar as they appeared, being lively and flying around. Two bags of Purina were placed in the large building and three bags in the small building. It does not precisely appear how much Arcadia went into each, but, with the exception hereinafter noted, all the troughs were filled with some of each. Garrison testified that he mixed the feed because it was prudent and safer to feed them a new feed, such as Purina, in a mixture with Arcadia which they had been eating, rather than to feed them a distinct new feed of itself. After this addition and consumption of feed, the deaths sharply increased. In the early morning of April 2, 1949, Garrison was aroused from his sleep and summoned to the buildings, where he found the poults in a paralyzed and sickened condition, many already dead and others dying. Some of the dead were opened and it was found that their interiors were black and the craws so colored as to indicate that they had been poisoned from the feed, and it was testified by a witness that moldy feed would produce such a condition and kill poults. There was, however, no direct positive evidence as to which brand of feed caused the poisoning here. On April 2, 3, and 4, 1949, there was a total of 679 deaths in the concrete or large building, and a total of 999 through April 10th. In the small or wooden building, with the least number of poults, and where most of the Purina feed went, there was, for the same three days, a total of 1290 deaths, and 1431 through April 10th.
It is contended by the plaintiffs in error that, because of the above-mentioned disparity in deaths, a jury question was presented as to whether or not Purina feed caused the poisoning and death, and that the direction of a verdict for the defendant was error. The burden was upon the plaintiffs to establish the cause of death; and, while the stated facts may create a suspicion, they do not authorize an inference that the Purina feed was responsible for the deaths of the turkeys, there being no evidence that the Arcadia feed was in good condition when received at the Garrison farm and put in the troughs with Purina. The plaintiffs in error contend that a verdict in their favor was authorized because the evidence shows that, if the three upper pens where no Purina feed was placed showed only a normal death rate, it necessarily follows that the Purina feed caused the deaths where the death rate was high, since both Arcadia and Purina feed was put in the pens where the death rate was high. This contention is tenable on one hypothesis only, and that is that some of the Arcadia feed which came in with the Purina on April 1, 1949, went into the three pens with the normal death rate. The evidence is too uncertain and indefinite to authorize such a finding. The consequence is that the evidence shows only that the Arcadia used in the three upper pens was some which was already on hand on April 1, 1949, and was not some of the new Arcadia brought in on that day. This leaves the situation where both feeds delivered on April 1, 1949, were put in all pens but the upper three, and where there is no evidence of the good condition of all of the Arcadia. While J. L. Fulenwider testified that he examined some of the Arcadia feed that came from Cumming, Georgia, we do not think the finding would have been authorized that he examined all of both sacks of Arcadia feed which was bought the same day on which the Purina feed was bought and found it in apparently good condition. Mr. Garrison's explanation as to why there was no Purina in the three upper pens would have to hold as to why none of the April 1, 1949, Arcadia went into them. He testified that there was some Arcadia on hand near the three upper pens, and it was too far to carry additional feed to that point.
Whether the deaths of the turkeys resulted from the eating of Arcadia feed, Purina feed, or both, could only be arrived at by conjecture or speculation. Since the burden of proof was upon the plaintiffs to show that the deaths resulted from the use of Purina feed, and the hypothesis that the deaths could have resulted from the Arcadia feed bought at the same time as the Purina was not excluded, the court did not err in directing a verdict for the defendant and in overruling the motion for a new trial.
2. There is no merit in the contention that a nonsuit should have been ordered instead of the direction of a verdict. Evidence was introduced by the defendant; and, since the record shows that all evidence was in at the time of the directed verdict, it will be presumed that the defendant had closed its case. It would seem that, if a defendant closes its case, whether it introduced evidence or not, and subjected itself to a verdict, it would be entitled to a directed verdict and an end of the case, if the evidence demanded it.
The court did not err in overruling the motion for a new trial.
The former judgment of reversal is on rehearing vacated, and the judgment overruling the motion for new trial is affirmed and the foregoing opinion is substituted for the original opinion.
Judgment affirmed. Townsend and Worrill, JJ., concur. Sutton, C.J., disqualified.