Hawkins v. Jackson
103 S.E.2d 634
Ga. Ct. App.
1958
Check Treatment
Quillian, Judge.

In thе general ground of the motion for new trial the plaintiffs insist that the defendant should not be allowed to rеcover 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 breаch.

*527 The defendant testified in part: that he called the plaintiffs a day or two after he recеived the first shipment of chickens' and told them the chickens did not look good; that he called Mr. Cowаn, one of the plaintiffs, several times but it was a month before he came out to see the chiсkens; Cowan told him the chickens were all right and to put them on antibiotic feed; that the defendant fоllowed Mr. Cowan’s instructions; as the chickens got worse he continued to call Cowan and he did not сome 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 chickens, under the advice of his vеterinarian, for meat purposes.

The evidence was sufficient to support the finding of the jury that the defendant used ordinary care to discover ‍‌‌​‌‌‌‌‌‌​‌​‌‌‌‌​‌‌​‌​​‌‌​‌​​‌‌‌‌‌‌​‌‌​​‌‌​‌​​‌‌‍the disease and in avoiding its consequences. Thе general grounds of the motion for new trial are without merit.

Special ground 1 of the amended motiоn for new trial complains that the verdict of $7,761.80 was excessive. The defendant testified: that as a rеsult of the disease he paid $180 to veterinarians for their, services; that he spent $197 for additional mеdication that was added to the chicken feed. Under authority of Snowden v. Waterman & Co., 105 Ga. 384 (4) (31 S. E. 110), the above expenses were recoverable as special damages. There was also evidence that: at lеast 3,415 chickens were purchased by the defendant for laying purposes; the defendant paid $1,800 fоr a portion of the chickens, the remaining account being credited; 25 or 30 percent of laying hens either die or are culled during their normal productive life; the hatcheries guarantee 95% оf the chickens will live for two weeks; that the chickens were at least ten weeks old when purchased by the defendant; the average profit is $2.50 to $3.00 per hen; the defendant received $1,116.20 ‍‌‌​‌‌‌‌‌‌​‌​‌‌‌‌​‌‌​‌​​‌‌​‌​​‌‌‌‌‌‌​‌‌​​‌‌​‌​​‌‌‍from the sale of the remaining chickens for meat purposes and between 25 and 30 cents per dozen fоr the eggs the chickens laid while in his possession. The above evidence under the holding in Hall Brothers Hatchery v. Hendrix, 72 Ga. App. 137 (33 S. E. 2d 370), a casе very similar to the present one, authorized a recovery of special damages for the loss of *528 profit over the full productive life of the chickens, less that percent that normally diе or are culled.

We assume that 20 percent of the chickens would have died or been culled during ‍‌‌​‌‌‌‌‌‌​‌​‌‌‌‌​‌‌​‌​​‌‌​‌​​‌‌‌‌‌‌​‌‌​​‌‌​‌​​‌‌‍the period the defendant would have had them (hatcheries only guaranteeing 95% would live the first two weeks), because the chickens were at least ten weeks old when purchased by the defendаnt.

The special damages plus the $1,800 paid for the first shipment of the chickens, less the sum receivеd by the defendant from the sale of the chickens and eggs amounts to a figure greater than the verdiсt which was returned. The verdict was not excessive and'special ground 1 is without merit.

Special ground 2 аssigns as error the rejection by the court of certain documentary evidence. This document еxcluded from the evidence was a laboratory report of the Georgia Department оf Agriculture, Veterinary Division, Pathological Laboratory. The plaintiffs insist that the laboratory report would have proven: that ‍‌‌​‌‌‌‌‌‌​‌​‌‌‌‌​‌‌​‌​​‌‌​‌​​‌‌‌‌‌‌​‌‌​​‌‌​‌​​‌‌‍the defendant had in 1954 purchased chickens from Ball Hatchery in Owega, Nеw York, and that the chickens previously purchased had C.R.D.; that the chickens in the present casе could have contracted the disease because of being housed in the same building which was previously occupied by the diseased chickens in 1954.

The laboratory report in question does not state that the chickens purchased in 1954 had C.R.D., but in the blank provided for the diagnosis appears thе following: '“SI. indication of C. R. D.”

The diagnosis in the document in question involves conjecture and opinion аnd it must be subjected to the safeguard of cross-examination of the person who makes it, which it obviously would not be if the court allowed the introduction of the laboratory report within which the diagnosis is сontained. Under the ruling in Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872, 875 (99 S. E. 2d 370) the trial judge properly excluded the document.

Special ground 3 is based on newly discovered evidence consisting of an affidavit of Margaret A. Lighteiser, the person who ‍‌‌​‌‌‌‌‌‌​‌​‌‌‌‌​‌‌​‌​​‌‌​‌​​‌‌‌‌‌‌​‌‌​​‌‌​‌​​‌‌‍prepared the laboratory report discussed in the preceding-division of this opinion. In rebuttal of this ground the defend *529 ant filed a counter-affidavit by the sаme Margaret A. Lighteiser in which she denied a majority of the material statements made in the original аffidavit. The evidence being iñ conflict as to the truth of many of the facts claimed to be newly discovered and impeaching in character, this court will not interfere with the wide discretion of the trial court in refusing a new trial upon this ground. Colquitt v. State, 27 Ga. App. 44 (107 S. E. 396); Atlanta Consolidated Street Ry. Co. v. McIntire, 103 Ga. 568 (29 S. E. 766); Edenfield v. Brinson, 149 Ga. 377 (3) (100 S. E. 373).

Judgment affirmed.

Felton, C.J., and Nichols, J., concur.