Gary v. Jordan
| Citation | 113 S.E.2d 730,236 S.C. 144 |
| Decision Date | 14 March 1960 |
| Docket Number | No. 17625,17625 |
| Court | United States State Supreme Court of South Carolina |
| Parties | S. M. GARY, Respondent, v. C. B. JORDAN, Appellant. |
C. T. Graydon, Augustus T. Graydon, Columbia, for appellant.
Thomas H. Pope, Robert D. Schumpert, R. D. Parler, Newberry, Frank L. Taylor, Columbia, for respondent.
Plaintiff, a resident of Newberry County, owned and maintained there an accredited herd of dairy cattle. In July, 1956, he purchased from the defendant, a cattle trader residing in Richland County, twenty Holstein cows and heifers, which were to have been added to plaintiff's herd. Upon test of their blood taken on August 31, 1956, it was discovered that six of the animals so purchased were positive reactors to brucellosis, more commonly known as Bang's disease. Thereafter, outbreaks of the disease in plaintiff's herd necessitated the slaughter of some thirty cows and quarantine of the remainder. This action for fraudn and deceit resulted, based upon alleged misrepresentations made by the defendant to the plaintiff in regard to the twenty animals before mentioned.
Defendant, admitting the sale, alleged that just prior to it the cattle had been tested by the State Veterinary Laboratory and found to be free of Bang's disease; and he alleged by way of counterclaim that the plaintiff owed him seven hundred dollars in connection with his replacement of six of plaintiff's cows that had been slaughtered.
Upon the trial at the February, 1959, term of the Court of Common Pleas for Richland County, the presiding judge overruled defendant's motions for nonsuit and direction of the verdict, and submitted the case to the jury, which found for the plaintiff six thousand eight hundred ($6,800) dollars actual damages. Thereafter, defendant's motions for judgment n. o. v. and for new trial having been overruled, this appeal followed.
Having agreed that the verdict was amply sustained, as to amount, by the uncontradicted evidence of damage counsel have very properly omitted such testimony from the transcript of record.
Appellant's numerous exceptions raise six questions:
1. Was there sufficient evidence of fraud and deceit to carry that issue to the jury?
2. Should the plaintiff have been held barred from recovery by reason of his acts subsequent to the alleged fraud?
3. Did the trial judge err in allowing an amendment of the complaint at the conclusion of plaintiff's case?
4. Was there error in the admission of certain testimony?
5. Did the trial judge err in permitting cross-examination of the defendant concerning an injunction proceeding instituted in January, 1957?
6. Did the trial judge err in refusing to charge certain requests submitted by the defendant?
The plaintiff testified that he had started his herd in 1938; that thereafter its growth had resulted from artificial breeding under the Clemson College program; that, except for ten cows that he bought in 1954 from a Mr. Powers, he had made no purchases of cattle prior to his transaction with the defendant here involved; that his herd was tested for Bang's disease once a year by Dr. Sutherland, a veterinarian of Union, S. C.; that except for one reactor in 1951 or 1952, which was slaughtered, there had never been Bang's disease in his herd until after the transaction in question; and that at that time the herd was an accredited one, numbering about eighty.
It is undisputed that early in July, 1956, the plaintiff and his herdsman, Mr. Pelkie, in company with the defendant, visited the latter's pasture for the purpose of buying some cows; that the plaintiff at that time advised the defendant that he had an accredited herd and wanted 'clean' cows; that the defendant assured him that his cows were 'clean', that he had already had them tested for Bang's, but would have those that the plaintiff might buy tested again and would deliver them after the results of the tests were received; that the defendant and Pelkie selected, by neckchain numbers, thirty-one cows, from which, after having been tested, twenty were to be delivered at plaintiff's farm; and that delivery was made, about a week later, on July 14, and thereupon the plaintiff paid the agreed purchase price, $6,500.
The plaintiff testified that thereafter, following a call from a neighboring dairyman, he had Dr. Sutherland on August 31, 1956, draw blood for Bang's disease test of the cows that he had purchased from the defendant; that that test, reported by the State Veterinary Laboratory under date September 4, 1956, showed that six of them were reactors; that on September 7, 1956, Dr. Baker, of the State Veterinary Laboratory, visited his farm and ordered those six cows slaughtered immediately; and that his herd was thereupon quarantined. Further, that in the course of Dr. Baker's visit they telephoned to the defendant, who, when plaintiff reminded him of his guarantee that the cows were free of Bang's, replied that he 'couldn't guarantee them forever', but that if the plaintiff would send him the indemnity check that the plaintiff would receive from the State, and also the amount of salvage that he might get from the slaughtered animals, he (defendant) would replace those animals; and that accordingly the indemnity and salvage checks were sent to the defendant, who delivered three replacements to plaintiff's herdsman about a week later and the remaining three to the plaintiff on October 5, 1956. On September 28, 1956, plaintiff's herd, 75 cows, was bled by Dr. Sutherland for Bang's disease test, and the report of this test, dated October 1, 1956, showed no reactors and no suspects. On November 14, 1956, another test revealed four reactors and five suspects. Subsequent tests showed the following results:
Date No. of Cows Reactor Suspects
-------- ----------- ------- --------
12/17/56 76 0 7
1/17/57 77 7 8
2/20/57 70 1 4
3/20/57 67 3 6
4/17/57 65 0 5
5/17/57 65 2 8
6/19/57 54 3 6
7/12/57 62 2 2
8/27/57 57 1 1
9/20/57 56 0 2
10/22/57 55 0 1
12/4/57 65 0 0
It appears from the testimony of Dr. Baker and that of Dr. Carter, the Director of the State Federal Livestock Disease Eradication Programs in South Carolina, that Bank's disease is infectious and contagious; that it may appear in an animal anywhere from fourteen days to seven or eight months after exposure; that all cows for addition to an accredited herd should, before entering that herd, test negative when or before they come on the premises and again thirty to sixty days thereafter; and that, once infected, a herd cannot be recertified until it has shown negative on at least two tests at sixty-day intervals and preferably a third six months after the second negative test.
On July 12, 1956, Dr. Caughman, defendant's veterinarian, drew blood from the thirty-one cows that had been selected by the defendant and the plaintiff's herdsman as before mentioned; and these blood samples Dr. Caughman carried on the same day to the State Veterinary Laboratory near Columbia, together with the test record form, in several counterparts, on which he had listed these cows by their respective ear tag numbers. The blood test was made on July 13, 1956, and later that day Dr. Caughman received by telephone the report of its result, which showed that one of the thirty-one cows was a reactor and that five were suspects. Dr. Caughman testified that upon receipt of this information he telephoned it to the defendant, giving him the ear tag number of the reactor and the ear tag number of each of the suspects. The defendant testified that Dr. Caughman telephoned him on the morning of July 14 and told him that one of the cows was a reactor, and identified it by ear tag number; but he recalled no reference having been made to the suspects, and stated that so far as he knew all of the other thirty cows were clear on the test. The written report of the test was received by Dr. Caughman on July 14; the defendant testified that he had never seen it until it was shown to him by plaintiff's counsel in the course of his cross-examination. At all events, the defendant's testimony shows that on July 14, following his telephone conversation with Dr. Caughman, he shipped by truck and had delivered to the plaintiff twenty cows, none of which appeared on the report of the July 13 test as reactor or suspect.
Dr. Caughman testified that on July 16, 1956, pursuant to the defendant's request for a report on the cows that had cleared the test of July 13, he prepared on the usual form a health certificate as to those twenty-five cows, showing on the certificate that they were owned by C. B. Jordan and consigned to S. M. Gary at Whitmire, S. C. and had tested negative for Bang's discease on July 13, and listing them by ear tag numbers. The twenty-five tag numbers lished on the health certificate of July 16 are the same as those on the report of the test of July 13 for the twenty-five cows other than the reactor and the five suspects. Actually, as has already been stated, the plaintiff's purchase was of twenty cows, and only twenty were delivered to him.
Plaintiff and his herdsman, Pelkie, testified that when the twenty cows were received from the defendant on July 14 they were put into a lot alongside of the dairy barn, as some were to freshen shortly and could be taken care of better in a separate lot; and that they and the rest of plaintiff's herd were milked in the same barn, but at different times.
The Sutherland test of August 31 included, in addition to the twenty cows purchased from the defendant, one of the cows that the plaintiff had bought from Powers. The Powers cow was included because it had gotten into the enclosure where the Jordan cows were kept; it tested negative. Of...
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