Hawkins v. Jackson, 37085
| Court | United States Court of Appeals (Georgia) |
| Citation | 103 S.E.2d 634,97 Ga.App. 525 |
| Docket Number | No. 37085,No. 1,37085,1 |
| Parties | R. A. HAWKINS et al. v. C.R. JACKSON |
| Decision Date | 08 April 1958 |
Syllabus by the Court
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.
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 affort 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.
Howard & Harmon, James C. Howard, Jr., Atlanta, for plaintiff in error.
Houston White, Atlanta, for defendant in error.
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...
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