Moultrie Farm Center, Inc. v. Sparkman
| Decision Date | 12 July 1984 |
| Docket Number | No. 68673,68673 |
| Citation | 320 S.E.2d 863,171 Ga.App. 736 |
| Parties | MOULTRIE FARM CENTER, INC. v. SPARKMAN et al. |
| Court | Georgia Court of Appeals |
James C. Whelchel, Moultrie, for appellant.
Michael A. Sherling, Moultrie, for appellees.
From 1967 until the present, Ross Sparkman, his wife and two sons owned and operated Sparkman's Dairy. In July 1981, the dairy herd consisted of 227 Jersey cows (215 adult cows and 12 heifers). On that date, Mr. Sparkman sent one of his employees to Moultrie Farm Center, Inc. to pick up an order of 500 lbs. of bicarbonate of soda. The Farm Center employee to whom the order was submitted had difficulty locating the soda in the "drug or medication" room where it was normally stored and went into the "mill or mixing room" where feeds and drugs are mixed for distribution. The employee located what he believed to be two fifty-pound bags of soda. He called Mr. Sparkman and informed him that he had only two fifty-pound bags and Sparkman agreed to take the two bags. The bags were loaded on the truck by Farm Center employees along with some calf feed. Upon arrival at the dairy, the two bags were unloaded in the machine shed which did not have any artificial lighting. Ricky Sparkman had been notified by his father to expect two fifty-pound bags of soda instead of the usual 100-pound bags and he used one of them when he mixed the cows' feed by using a front-end loader in the dark shed.
The next day the second bag was mixed into the feed under similar lighting conditions. After the feeding on July 30, Sparkman noticed some of the cows appeared ill. The following day, some had diarrhea and appeared nervous. By August 1, two cows were down and one had died. None of the cows who received the mixed feed were eating, they had diarrhea, some had lost their intestinal lining, and the herd's milk production dropped from 3300 lbs. per day to 1100 lbs. per day. The veterinarian who was called diagnosed the cause of the herd's illness as arsenic toxicity. The evidence showed that the Farm Center employee had filled the soda order with two bags of arsanilic acid, an arsenic compound which is never fed to cows because it is highly toxic to their systems. It is fed to chickens and swine in minute amounts as a growth stimulant and as an aid to controlling diarrhea. The employee, a high school student, was hired to sweep up, stock shelves and take orders and had received no instruction in the dangers or hazards of any feed grain medications or additives, was not instructed as to the size or shape of bicarbonate of soda bags (it came only in 100-lb. bags) and was not instructed by the Farm Center as to their color-coding safety precautions. There was no warning on the bags of arsanilic acid and the contents were marked only on one side. There was also testimony by the Farm Center's general manager that the error in filling Sparkman's order should have been discovered by Friday, July 31, but was not because "their regular routine was out of place."
An expert witness for the plaintiff compared the milk production records of the 195 cows exposed to the contaminated feed and the 20 cows who were not exposed and testified as to the precipitous drop in production of the exposed cows and the production expectations of the heifers and compared it to their actual production after the incident. There was testimony that a total of 21 cows and 3 heifers died within the two-year period following the poisoning and that a total of 10 died within two months of the incident. The average death rate of the five years preceding the poisoning was .036% as compared to a rate almost four times higher afterwards. The culling rate of young heifers was also very high.
The local veterinarians confirmed the diagnosis of arsenic poisoning and stated they believed it was responsible for the increased death rate, increased abortion rate, and loss of milk production in the herd. The appellee's expert witness confirmed their diagnosis, but disputed the figures on loss of milk production and the increased long-term death rate. Sparkman testified he attempted to mitigate his production loss by purchasing 65 additional cows, but claimed they were not all of the quality he would have preferred.
Moultrie Farm Center brings this appeal from a judgment entered on a jury verdict in the amount of $275,000 following the denial of its motions for a judgment notwithstanding the verdict and for a new trial.
1. Appellant first contends the trial court erred in denying his motion for a judgment notwithstanding the verdict because the plaintiff, by exercising ordinary care, could have avoided the consequences caused by the defendant's negligence and relies upon Martin v. Bartell Drug Co., 284 P. 96 (1930), to support his claim that plaintiff's employees had ample opportunity to inspect the bags and contents prior to using them and their failure to do so bars recovery by the plaintiff.
In ruling upon a motion for a judgment notwithstanding the verdict, the court must view the evidence in the light most favorable to the jury verdict, and issues of negligence, diligence, contributory negligence, cause and proximate cause are matters for jury decision, and the court should not substitute itself for the jury except in plain, palpable and indisputable cases. Bryant v. Colvin, 160 Ga.App. 442, 287 S.E.2d 238 (1981). See also Church's Fried Chicken v. Lewis, 150 Ga.App. 154, 159, 256 S.E.2d 916 (1979). "A judgment notwithstanding the verdict can be rendered only where the evidence demands a verdict contrary to the one returned by the jury." Osborn v. Youmans, 219 Ga. 476, 479, 134 S.E.2d 22 (1963). If there is any evidence to support the jury verdict, it is proper for the court to deny the motion. Maloy v. Planter's Warehouse etc. Co., 142 Ga.App. 69, 72, 234 S.E.2d 807 (1977); Moody v. Nides Finance Co., 115 Ga.App. 859(1), 156 S.E.2d 310 (1967).
In the instant case, the defendant's employees loaded the supplies on Sparkman's truck and Sparkman had been informed by appellant that he should expect to receive his order in two fifty-pound bags instead of the usual 100-pound bags. The dark misty weather conditions and the lighting conditions in the shed when the truck was unloaded and when the feed was mixed were adequately presented so as to require jury resolution as to the defendant's negligence. As the jury was fully instructed on this issue, we find no merit in appellant's position.
2. This court does not consider the weight of the evidence as that issue addresses itself only to the trial judge in ruling upon the defendant's motions. Ridley v. State, 236 Ga. 147, 149, 223 S.E.2d 131 (1976); Hembree v. Ideal Bldrs., 158 Ga.App. 574, 281 S.E.2d 328 (1981).
3. Appellant assigns error to the trial court's charge that the jury might award damages for lost profits.
The plaintiff presented evidence that the dairy had been a profitable ongoing business since 1967 and produced evidence based on his business records and the testimony of an expert who examined the milk production records to show that he had one of the finest dairy herds in the state prior to the poisoning incident. The expert examined the milk production records to show that the cows remaining in the herd after the incident were producing milk at a much lower rate than before. Any cows that died, were sold, or removed from the herd were not included in the loss of production estimates.
There is a general rule that business profits which are too uncertain or speculative to afford a basis for compensation cannot be considered. However, "where the type of business and history of profits make the calculation of profits reasonably ascertainable, evidence of lost profits may be considered." Claxton Poultry Co. v. City of Claxton, 155 Ga.App. 308, 313, 271 S.E.2d 227 (1980); Atlanta Gas etc. Co. v. Newman, 88 Ga.App. 252, 253, 76 S.E.2d 536 (1953). Appellant's reliance upon Radlo of Ga. v. Little, 129 Ga.App. 530, 199 S.E.2d 835 (1973), and Bennett v. Smith, 245 Ga. 725, 267 S.E.2d 19 (1980),...
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