Opinion
No. 38720.
April 6, 1953.
1. Sales — breach of warranty — contradictory statements of plaintiff — issue for jury.
In an action for damages for breach of warranty in the sale of hogs, where there was substantial testimony, although disputed, that the seller had represented to the buyer that the hogs had come from a community in which there were no contagious diseases among hogs, and that the purchaser relied on that statement, but that the hogs had sickened on the next day and soon died after having communicated the disease to other hogs of the purchaser that also died, the issue was properly submitted to the jury although the plaintiff on his cross-examination stated that in his purchase he relied on his own judgment.
2. Sales — breach of warranty — evidence, inconclusive in nature properly excluded.
In the case next above mentioned the testimony of a witness that other hogs had died in the community was properly excluded when there was no showing or offer thereof that the hogs in question had been in contact with the other hogs.
3. Evidence — expert opinion — nonexpert witness.
Objection was properly sustained to a question which sought the opinion of a nonexpert witness on a highly technical subject.
4. Damages — punitive — absence of actual damages.
Where the evidence was ample to sustain a verdict denying actual damages, punitive damages were not recoverable.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Yalobusha County; CURTIS M. SWANGO, JR., Judge.
John P. Horan and Hermit R. Cofer, for appellant.
The argument was presented under the following topical divisions:
I. The court erred in refusing plaintiff's request for a peremptory instruction.
II. The court erred in refusing plaintiff's request for instruction that jury might assess punitive damages against the defendants, and in granting defendants' requested instruction barring the jury from consideration of punitive damages.
III. The verdict of the jury was contrary to the law and the overwhelming weight of the evidence, and evinced bias and prejudice on the part of the jury.
IV. The court erred in giving, at defendants' request, defendants' instructions numbered one, two, three, four, five, seven, nine, eleven and twelve.
V. The court erred in sustaining defendants' objections to testimony of plaintiff as to the hogs bought by plaintiff from defendants, and as to plaintiff's reliance thereon.
VI. The court erred in admitting testimony as to the white sow, said to have been bought at an earlier date, and not involved in this cause.
VII. The court erred in sustaining objections to testimony of witness Watson as to other hogs' dying in the community.
VIII. The court erred in sustaining objections to testimony of witness Dickey as to comparison of symptoms of hogs already owned by plaintiff with those bought by plaintiff from defendants.
IX. The court erred in overruling plaintiff's motion for a new trial.
And cited the following authorities:
American Railway Express Co. v. Bailey, 142 Miss. 622, 107 So. 761; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Gulf S.I.R. Co. v. Prine, et al., 118 Miss. 90, 79 So. 62; Lackey v. St. Louis S.F.R. Co., 102 Miss. 339, 59 So. 97; Parsons v. Lambert, 209 Miss. 649, 48 So.2d 143; Poteete v. City of Water Valley, 207 Miss. 173, 42 So.2d 112; Thames v. Batson Hatten Lbr. Co., 143 Miss. 5, 108 So. 181; Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288.
Murray L. Williams, for appellees.
Replied in the same order and cited the authorities as follows:
46 Am. Jur. 520, 521, 567, Secs. 337, 338, 393; Am. Railway Express Co. v. Bailey, 142 Miss. 622, 107 So. 761; Barton v. Dowis, 315 Mo. 226, 285 S.W. 998, 51 A.L.R. 494; Bellvills Supply Co. v. Ducey, 141 Miss. 569, 106 So. 81; Boehm v. Friedman, 190 Miss. 664, 1 So.2d 664; Collins Baking Co. v. Wicker, 166 Miss. 264, 142 So. 8; Duff v. Snider, 54 Miss. 245; Gerard Motor Co. v. McEachern, 150 Miss. 437, 116 So. 816; Gulf S.I.R. Co. v. Prine, 118 Miss. 90, 79 So. 67; Hale v. Hinkle Co., 159 Miss. 796, 132 So. 751; Hood v. Moffett, 109 Miss. 757, 69 So. 664; McCain v. Cochran, 153 Miss. 237, 120 So. 823; Parsons v. Lambert, 209 Miss. 649, 48 So.2d 143; Poteete v. City of Water Valley, 207 Miss. 173, 42 So.2d 112; Simonton v. Moore, 204 Miss. 760, 38 So.2d 94; Storm v. Green, 51 Miss. 103; Vance v. State, 62 Miss. 137; Voos v. Lawrence, 26 So.2d 172; Watts v. Adair, 211 Miss. 77, 52 So.2d 649; Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288; Williams v. McClain, 180 Miss. 6, 176 So. 77.
J.C. Anderson filed suit against B.F. King and Odis Campbell to recover damages on account of the claimed breach of an alleged warranty. There was a jury verdict for the defendants; and from the judgment entered thereon, Anderson appeals.
The declaration alleged that Anderson, on March 10, 1951, for the sum of $40.00, purchased three hogs from the defendants on the representation, upon which he relied, that the hogs were well, had not been exposed to disease, and were not from a community where hog disease existed; that the hogs became sick from cholera the next day, exposing his other hogs; and that these hogs, together with others which he owned, died. The answer of the defendants denied that they made such representation or that they warranted the soundness of the hogs.
The hogs were purchased by the appellees from Mose Phillips about nine o'clock Saturday morning, and were sold to the appellant about forty-five minutes later. It is undisputed that, both at the time of the original purchase and the subsequent sale, the hogs appeared to be sound and normal. The next morning they refused to eat, and died about eleven days later. Four of the appellant's other hogs also sickened and died. All of the animals had been given penicillin shots and the serum treatment. The veterinarian, who examined one of the three hogs shortly before it died, testified that he did not know the cause of death. An agricultural teacher, with only basic study of animals, but with some experience in treating them, at first testified that he would not be positive as to the nature of the ailment, but finally expressed the opinion that the hogs had cholera, because they responded to the serum treatment for that disease. It was shown that many like symptoms are common to both cholera and pneumonia.
(Hn 1) Appellant testified that, at the time of his purchase, Campbell stated that he bought the hogs from a Negro down on the mud line and there had been no hog disease in that community. While testifying on direct examination that he relied on Campbell's representation in making the purchase, yet, on cross-examination, he admitted that he knew hogs, he had handled lots of them, and, at two places in the record, he stated, without equivocation, that he relied on his own judgment in making the purchase.
Campbell's testimony was contradictory of appellant's version. He testified that several persons bid on the hogs; that he made no representation as to their soundness or condition; that no one asked him anything about them; that the men came up to the scene, looked at the hogs, and bid on them; and that he made no representation to Anderson. It was his version that Anderson came to him on the following Tuesday to inquire where the animals had been purchased, and, at that time, he was advised that they were purchased from a Negro down on the mud line. Campbell was corroborated to some extent by John D. Coleman, who was present at the bidding, and testified that he did not hear Campbell make any statement in regard to the hogs, or as to their quality, or anything else; and that the bidders asked only about the price.
The conflict in the evidence made an issue for the jury, and the court properly overruled appellant's request for a peremptory instruction.
The verdict was not against the great weight of the evidence, and the motion for a new trial was properly overruled.
Several assignments are predicated on the alleged errors of the trial court in sustaining objections to the introduction of testimony. He contends, in one instance, that the court cut him off from showing that he relied on the representation made at the time of the sale. He was asked on direct examination, "On that representation, did you buy the hogs?", and the reply was, "Yes, sir." Appellees then offered the objection that the question was leading, and it was sustained. The jury had heard the question and answer, and there was no motion to exclude. Several additional inquiries were made on that particular point, one of which was not leading, but objections were sustained. However, on cross-examination, at a time when he had the opportunity to say that he relied on the representation in making the purchase, he testified, at two different places in the record, without equivocation, that he relied on his own judgment. Even though such statements were contradictory, the trial court evidently had in mind F.W. Woolworth Co. v. Freeman, 193 Miss. 838, 11 So.2d 447, in submitting the case to the jury.
(Hn 2) The court did not err in sustaining an objection to the testimony of the witness Watson concerning the death of other hogs in the community, especially when he neither showed nor offered to show that such hogs had been in contact with the three hogs which appellant had purchased.
(Hn 3) Neither was the court in error in sustaining an objection to the following question propounded to the witness, Dickey, "Did they, or not, seem to have some symptoms and disease the hogs had he bought from Mr. King and Mr. Campbell." The witness was not a veterinarian and frankly admitted that he did not know whether Anderson's hogs had cholera, pneumonia, or some other disease. The question did not call for a statement by the witness as to like symptoms which he observed in both sets of hogs, but rather for the opinion of a nonexpert on a highly technical subject.
The evidence about the white sow, as to which appellant complains, was properly admitted because she had run with all of Mose Phillips' hogs, was admittedly purchased by appellant about March 5, 1951, and did not become diseased.
There was no conflict in the instructions, although one of the appellant's given instructions was, in effect, too liberal.
Since all of the evidence was to the effect that the hogs were in good condition before and at the time of the sale, and that appellees had no information to the contrary, there was no substantial basis upon which punitive damages could have been allowed; and the court properly refused the appellant's requested instruction thereon. American Railway Express Co. v. Bailey, 142 Miss. 622, 107 So. 761; Hood v. Moffett, 109 Miss. 757, 69 So. 664. (Hn 4) Moreover since the evidence was ample to sustain the verdict of the jury in its denial of actual damages, punitive damages were not recoverable. McCain v. Cochran, 153 Miss. 237, 120 So. 823.
It follows, therefore, that this cause should be, and is, affirmed.
Affirmed.
Roberds, P.J., and Hall, Arrington, and Ethridge, JJ., concur.