Scioto Livestock Sales Co. v. Crockett

• Decision Date: 05 February 1935
• Docket Number: 7920.
• Citation: 178 S.E. 427,116 W.Va. 27
• Parties: SCIOTO LIVESTOCK SALES CO. v. CROCKETT.
• Court: West Virginia Supreme Court

178 S.E. 427

116 W.Va. 27

SCIOTO LIVESTOCK SALES CO. v. CROCKETT.

No. 7920.

Supreme Court of Appeals of West Virginia.

February 5, 1935

Submitted January 29, 1935.

Syllabus by the Court.

A prima facie case is not overcome by evidence which merely affords a bare conjecture to the contrary.

Error to Circuit Court, Wayne County.

Action by the Scioto Livestock Sales Company against Charley Crockett, wherein defendant filed a cross-demand. Judgment for defendant, and plaintiff brings error.

Judgment reversed, and new trial awarded.

Gordon Phillips, of Chillicothe, Ohio, and F. F. Scaggs, of Wayne for plaintiff in error.

Jess Hammock, of Huntington, and J. T. Lambert, of Wayne, for defendant in error.

HATCHER Judge.

The defendant, Crockett, a resident of West Virginia, purchased thirty-six hogs from the plaintiff sales company at Chillicothe, Ohio, giving in payment a check of $126. The hogs died within a month afterwards, and he stopped payment on the check. Plaintiff brought this action before a justice to recover the sales price of the hogs.

The defendant filed a written answer before the justice alleging that the hogs were infected with cholera when he bought them, and that he had been put to trouble and expense by reason thereof amounting to $150, and praying judgment therefor against the plaintiff. The justice found for the plaintiff, and defendant appealed to the circuit court. Pending the trial there, The defendant filed an itemized statement of his demands against the plaintiff amounting to $96. The jury returned a verdict in favor of defendant and assessed his damages at $126. The defendant disclaimed the verdict in excess of $96, and the court then entered judgment in favor of defendant for that sum. The plaintiff secured a writ of error.

The plaintiff complains of the procedure in the circuit court. Since the case originated before a justice, the formality of a common-law trial was not requisite. While the procedure complained of was informal to some extent, the record discloses no prejudice to the plaintiff therefrom.

The plaintiff takes the position that the defendant purchased the hogs at his own risk, and invokes the rule of caveat emptor. Plaintiff's evidence would sustain its position; but both defendant and his son testified positively that plaintiff's general manager personally selected the hogs and expressly guaranteed them to be free from disease. Because of the verdict in favor of defendant, we must regard the guaranty as having been made.

The defendant had the hogs vaccinated against cholera immediately after his purchase. The vaccination was performed by a veterinarian of Chillicothe, who testified that he examined the hogs and found them to be "in excellent condition" showing "no trace of either cholera or pneumonia." His testimony completed a prima facie case for plaintiff even under the guaranty testified to by the defendant. The latter sought to break down that case by the following evidence: One of the hogs died the day following the purchase; by the fifth day after the purchase five or six had died, and a West Virginia veterinarian, summoned on that day, pronounced the malady to be cholera; and within about a month after the purchase all were dead. The West Virginia veterinarian first stated that in his opinion the hogs were infected with cholera when delivered to defendant; but later the veterinarian admitted that he could not say whether the hogs contracted the disease from other hogs, or whether they acquired it after delivery through the vaccination in Chillicothe.

The Chillicothe veterinarian did not give the details of the vaccination further than to say: "I gave them (the hogs) the single treatment, as under West Virginia regulations hogs are...