Nat'l Refrigerator & Butchers' Supply Co v. Parmalee

• Decision Date: 23 September 1911
• Docket Number: (No. 3,195.)
• Citation: 72 S.E. 191,9 Ga.App. 725
• Court: Georgia Court of Appeals
• Parties: NATIONAL REFRIGERATOR & BUTCHERS' SUPPLY CO. v. PARMALEE.

72 S.E. 191

9 Ga.App. 725

NATIONAL REFRIGERATOR & BUTCHERS' SUPPLY CO.

v.PARMALEE.

(No. 3, 195.)

Court of Appeals of Georgia.

Sept. 23, 1911.

(Syllabus by the Court.)

1. Damages (§ 62^*)—Special Damages—Evidence.

Whenever one party to a case claims special damages against the other, he has the burden, not. only of showing that he has been damaged as alleged, but also of furnishing to the jury data sufficient to enable them to estimate with reasonable certainty the amount of the damages. It is not necessary, however, that the party on whom the burden thus rests should submit exact figures.

[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 119-132; Dec. Dig. § 62.*]

2. Damages (§ 184*) — Reduction of Damages.

The rule which generally requires a party suffering damage from the neglect of another to diminish the damage does not require him to adopt a course which a reasonably prudent man would not have taken under all the circumstances.

[Ed. Note.—For other cases, see Damages, Dec. Dig. § 184.*]

Error from City Court of Griffin; W. M. Clark, Judge.

Action by P. S. Parmalee against the National Refrigerator & Butchers' Supply Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Robt. T. Daniel and Wm. H. Beck, for plaintiff in error.

W. E. H. Searcy, Jr., for defendant in error.

POWELL, J. The controversy was over an alleged breach of warranty in the sale of a refrigerator. The plaintiff claimed that it was warranted to produce such a degree of cold as to preserve his meats, and that it would not do so, and that he lost considerable meat through spoilage on that account. The plaintiff did not keep any books or other memoranda as to the weights or values of the different pieces of meat that were spoiled from time to time. He did testify, however, to a general recollection on the subject. He testified that there was a period of 520 days, net, during which he was daily required to take out spoiled meat; the amount being greater on some days than on others. He said it would average 10 pounds per day. He gave the values of the various kinds of meats that were lost, and, after giving these detailed values, claimed an average value of 15 cents per pound. He also swore that his estimate was a low one. His assistant estimated that 3 or 4 pounds per day were lost on an average. He also detailed with more or less generality the sizes and kinds of meats that were lost. The jury allowed $250, which was approximately equivalent to an allowance for a loss of 12 cents per pound on the basis of 4 pounds per day, or for a loss of 15 cents per pound on the basis of 3 pounds per day. It was substantially a finding according to the minimum estimate which the witnesses gave from their recollection.

Where a party sues for specific damages, he has the burden of showing the amount of the loss, and of showing it in such a way that the jury may calculate the amount from the figures furnished, and will not be placed in the position where their allowance of any sum would be mere guesswork. However, the party does not lose bis right of action for the damage because he cannot furnish exact figures. It is often the case that witnesses are called on to testify to the weight of a thing, though they have never weighed it, or to testify to length of time, though they have kept no count of...