77 S.E.2d 739 | Ga. | 1953
BURNS et al.
v.
RALSTON PURINA COMPANY.
Supreme Court of Georgia.
A. C. Wheeler, Wheeler, Robinson & Thurmond, for plaintiff in error.
Kenyon, Kenyon & Gunter, A. R. Kenyon, contra.
DUCKWORTH, Chief Justice.
The case as reported by the Court of Appeals in Burns v. Ralston Purina Co., 87 Ga. App. 876 (75 S. E. 2d 563), discloses both in the facts and in the opinion that (1) petitioners acquired turkey feed manufactured, advertised, and sold by the defendant as being good for turkey poults; (2) that this feed was purchased and fed to petitioners' poults; (3) that this feed was molded; (4) that molded feed will kill turkey poults; and (5) that within a very short time thereafter large numbers of petitioners' turkeys died from eating molded feed. While this evidence did not prove beyond the shadow of a doubt that all of the turkeys did not die from eating other molded feed or other causes, nevertheless, the evidence as listed above was sufficient to go to the jury, and the Court of Appeals erred in stating that, while these facts created a suspicion, they did not authorize an inference that Purina feed was responsible for the deaths on the basis that the hypothesis that the deaths could have resulted from other feed fed to the turkeys at the same time was not excluded and the actual deaths of the turkeys could only be arrived at by conjecture or speculation. The evidence would have been clearly sufficient to authorize a jury to find that Purina feed caused the deaths of these turkeys, and the Court of Appeals erred in not so holding. See McPherson v. Capuano & Co., 31 Ga. App. 82 (121 S. E. 580); Copeland v. Curtis, 36 Ga. App. 255 (136 S. E. 324); Armour & Co. v. Miller, 39 Ga. App. 228 (147 S. E. 184); s. c. 169 Ga. 201 (149 S. E. 698); Criswell Baking Co. v. Milligan, 77 Ga. App. 861 (50 S. E. 2d 136).
Judgment reversed. All the Justices concur, except Atkinson, P. J., not participating.
