Arcady Farms Mill. Co. v. Betts
| Decision Date | 26 January 1956 |
| Docket Number | No. 35849,No. 2,35849,2 |
| Citation | 91 S.E.2d 289,93 Ga.App. 255 |
| Parties | ARCADY FARMS MILLING COMPANY v. L. P. BETTS et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
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.
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 and as a result of feeding this poisoned feed 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 defendant marketed 1,500 turkeys and they were underweight an average of four pounds each. The market price of those turkeys was 35 1/2 cents perpound. 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.
Erwin, Nix, Birchmore & Epting, Athens, Bobby B. Mitchell, Thomaston, for plaintiff in error.
Geo. C. Kennedy, Manchester, W. S. Allen,...
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