Opinion
36193.
DECIDED OCTOBER 2, 1956. REHEARING DENIED DECEMBER 4, 1956.
Tort; sale of defective cattle feed. Before Judge Anderson. Bibb Superior Court. February 13, 1956.
Bloch, Hall, Groover Hawkins, Denmark Groover, Jr., for plaintiff in error.
Martin, Snow Grant, Lewis, Wylly Javetz, contra.
1-10. For the reasons stated in the opinion the trial court did not err in overruling the defendant's general or special demurrers, its motion for new trial, or its motion for judgment notwithstanding the verdict.
DECIDED OCTOBER 2, 1956 — REHEARING DENIED DECEMBER 4, 1956.
David C. Rahn brought an action for damages in the amount of $39,430 against the G. Bernd Company in four counts. The material allegations of count 1 of the petition, as finally amended, are substantially as follows: (3) The defendant is engaged in the business of processing, mixing, preparing and packaging animal feeds and feed stuffs which it sells and distributes to retail dealers with the intention of their being sold by such dealers to the general public. Among other feeds which the defendant processes, mixes, packages and offers for sale, is one which the defendant places on the market under the name of "Bernd's Mineral Supplement." (5) This supplement is placed on the market by the defendant for the purpose of its being used as a feed or component of feeds for cattle. (6) The supplement is packaged by the defendant in 100-pound bags, which bear the defendant's written representations of its mineral content and composition. (7) Prior to April 11, 1952, to wit, about March 24, 1952, the defendant sold to Neville Feed Company of Savannah, Georgia, a quantity of this supplement. (8) On or about April 11, 1952, the plaintiff purchased from the Neville Feed Company five 100-pound bags of this supplement, which was in the original container in which it was packaged by the defendant, and in the same condition as when it left the custody, possession, and control of the defendant. The purchase was made by the plaintiff by telephoning the Neville Feed Company, which delivered the supplement to the plaintiff's farm. (9) The plaintiff had previously used this supplement, and in purchasing it, he relied on the fact that it had been prepared, packaged, and placed on the market by the defendant. The plaintiff had previously purchased the supplement from Neville Feed Company over a period of several years, and he had used it in the same manner as it was used on the occasion here in question. (10) The plaintiff purchased the supplement for the uses for which it was placed on the market by the defendant, to wit, to be mixed with other feed for cows so as to add needed minerals to their diet. The supplement was mixed by the plaintiff with commercial dairy feed which he had purchased about June 1, 1952, from a dealer in dairy feed. (11) At that time the plaintiff was the owner of a farm consisting of 245 acres in Chatham County, Georgia, on which he conducted a dairy business. (12) One of the components which the defendant represented the supplement contained was "steamed bone meal." (13) Bone meal is, unless properly processed by the use of steam and heat under conditions sufficient to kill all the germs therein and to render it sterile, a frequent source of infection of the dreaded disease anthrax, which is readily communicable to animals which partake of feed which contains the anthrax germ known as bacillus anthracis. (14) At the time the defendant placed the supplement on the market by selling it to the Neville Feed Company, the defendant knew that bone meal was a frequent source of the infection of animals with anthrax. (15) At the time the defendant, in the exercise of ordinary care as a manufacturer of commercial feed stuffs, should have known that within a short time prior thereto, to wit, within the previous three or four months, there had been outbreaks in the United States, particularly in Illinois, Indiana, Iowa, Michigan and Ohio. (16) At the time, the defendant, in the exercise of ordinary care, as a manufacturer of commercial feed stuffs, should have known that some of such outbreaks had been traced by the department of agriculture of each of the States mentioned to infection originating from feeds containing bone meal, because information as to the nature of such outbreaks and their causes was widely disseminated to those in the feed industry by means of news releases, bulletins, trade magazines, and by announcements from various meetings which were held by organizations connected with the feed industry, to wit, Indiana State Renderers Association, and the National Independent Meat Packer's Association. (17) The defendant further, in the exercise of ordinary care, should have known, that various States, particularly Indiana, Virginia, and Iowa, had issued cautionary warnings to feed manufacturers and processors against the incorporation of bone meal into feeds for animals without making certain that such bone meal had been treated sufficiently to destroy any bacilli anthracis which might be contained therein. The information as to the warnings so issued was made available to the defendant by the means enumerated in paragraph 16. (18) Nevertheless, the defendant, in mixing and preparing the feed, Bernd's Mineral Supplement, used as a component part thereof a bone meal which had not been sterilized by the defendant. (19) The defendant failed to make any test of the bone meal to ascertain that it was sterile before incorporating it into its feed. (20) The bone meal which was incorporated in the supplement which was placed on the market by the defendant and purchased by the plaintiff from the Neville Feed Company, was not sterile and contained bacilli anthracis. (21) The plaintiff used the defendant's supplement in the preparation of a feed for his cattle, and the supplement was used daily, beginning approximately June 1, 1952, by mixing approximately one pound of the supplement to 100 pounds of the commercial dairy feed by running these through a feed mill. (22) As the result of their eating the feed containing the bacilli anthracis which was present in the defendant's mineral supplement, three bulls, 41 milk cows, and one heifer died from anthrax during the period from June 4, 1952 to August 1, 1952. Two saddle horses also contracted the disease and died during the same period. (23) The three bulls were registered and were of the value of $1,000 each. The 41 milk cows were of a value of $325 each. The heifer was of the value of $100 and the two horses were of the value of $150 each. (24) When his cows first began to die, the plaintiff did not know the reason for their deaths, and had no reason to suspect that the feed which the defendant had placed on the market contained the germ of this deadly disease. He engaged the services of Dr. F. E. Ducey, of Savannah, Georgia, a veterinarian, who treated his cows and made tests to determine the cause of their death. The plaintiff incurred an expense of $480 for Dr. Ducey's services. It was finally determined that the cows had died from anthrax, and that the feed prepared by the defendant was the source of the infection. This determination was made by means of laboratory tests conducted by the State Department of Agriculture in Atlanta, Georgia, the results of which were communicated to the plaintiff by telephone about the middle of June, 1952, and confirmed by a letter from the Chief Veterinarian, Dr. T. B. Clower, dated September 9, 1952. (25) The plaintiff immediately stopped using such feed upon learning, as above alleged, that it was the source of such infection, but by that time, 45 of the cattle and two horses had died, or had contracted the disease and, subsequently, died. (26) In addition to the cows which contracted anthrax and died therefrom, 27 other cows belonging to the plaintiff and which were then carrying calves which would have been born within a short time, contracted the disease and as a result aborted. This premature loss of the calves not only deprived the plaintiff of the value of the calves which would have been produced, but the plaintiff was deprived of the milk which would have been produced by the cows. All of these cows were consequently reduced in value from $325 each to a value of only $150 each, which caused the plaintiff damage in the amount of $4,725. (27) During the period following the discovery of the fact that the cause of the sickness and death of the plaintiff's cows was anthrax, the plaintiff was unable to sell any of his milk for 10 days and had to destroy it. The milk was of the value of $250 per day, and he was damaged in the sum of $2,500. (28) Anthrax is a highly contagious and infectious disease, and the germ lives in the soil for periods of time extending frequently to 20 years. (29) The plaintiff's farm had previously been entirely free of the anthrax germ, and in fact there had been no reported case of anthrax in the entire State of Georgia for many years; but, as the result of this serious outbreak of the disease on his property, the value of the plaintiff's farm has been greatly diminished. Prior to the outbreak of the anthrax, the value of the plaintiff's farm was at least $30,000, and after the introduction of anthrax, it is only $15,000. (30) In order to immunize his other cattle from infection the plaintiff had to have 200 cows innoculated at a cost of $1 each. (31) All these damages sustained by the plaintiff proximately resulted from the negligence of the defendant in the following particulars: (a) In mixing into Bernd's Mineral Supplement as a component part thereof bone meal containing bacilli anthracis. (b) In failing to process the bone meal used by the defendant in such a manner as to destroy any bacilli anthracis present in the product. (c) In failing to analyze, inspect and test the bone meal used by it to insure its freedom from bacilli anthracis. (d) In placing on the market for sale and for consumption by animals as feed its product containing bacilli anthracis. (e) In permitting a dangerous ingredient and one highly destructive of animal life, to wit, bone meal containing bacilli anthracis, to become an ingredient of a product placed on the market by the defendant as a food suitable for and intended for animal consumption.
Paragraphs 1 through 30 of count 1 were incorporated as a part of count 2, and the plaintiff further alleged in count 2 substantially the following: (2) The Bernd's Mineral Supplement placed on the market by the defendant was a food within the meaning of the Pure Food and Drug Law, as defined in Code § 42-107. (3) The defendant was guilty of negligence per se in violating the Pure Food and Drug Law by placing on the market for sale as a food intended for animal consumption the supplement which contained an added deleterious ingredient, to wit, bone meal containing bacilli anthracis, which was unfit for animal consumption and was, in fact, dangerous and destructive of animal life. (4) The defendant was guilty of negligence per se in violating the Pure Food and Drug Law in that the supplement was a product of a diseased animal, to wit, one having the disease anthrax. (5) The defendant was guilty of negligence in adulterating the supplement with a substance injurious to the health of domestic animals, to wit, bone meal containing bacilli anthracis. (6) The violation by the defendant of the Pure Food and Drug Law was the proximate cause of all of the injury and damage to the plaintiff.
Paragraphs 1 through 11, and 21 through 30 of count 1 were incorporated as a part of count 3, and the plaintiff further alleged substantially the following: (2) At the time the defendant placed the feed on the market by selling it to the Neville Feed Company, there had been within a short time prior thereto, to wit, within the previous three or four months, outbreaks of anthrax in several different States in the United States, to wit, Illinois, Indiana, Iowa, Michigan and Ohio. (3) The fact of such outbreaks, in the exercise of ordinary care, should have been known to the defendant, because information as to the nature of such outbreaks and their causes was widely disseminated to those in the feed industry by means of news releases, bulletins, trade magazines, and by announcements at various meetings which were held by organizations connected with the feed industry, to wit, Indiana Renderer's Association, and the National Independent Meat Packer's Association. (4) Anthrax is a disease which is very deadly to domestic animals, particularly to cattle, and it is highly infectious and contagious and is readily communicable to such animals. (5) The disease is readily communicated to such domestic animals as partake of feed which contains the bacillus anthracis. (6) Nevertheless, the defendant, in preparing and mixing the feed which it marketed under the name of Bernd's Mineral Supplement, failed to make any test of the ingredients from which the feed was mixed in order to insure that such ingredients did not contain bacilli anthracis. (7) After mixing the supplement, the defendant failed to test it before placing it on the market so as to insure its freedom from bacilli anthracis. (8) The feed placed on the market by the defendant and purchased by the plaintiff did, in fact, contain bacilli anthracis, which was unknown to the plaintiff. (10) The plaintiff purchased the supplement after such had already been mixed by the defendant, and it is, therefore, impossible for the plaintiff to allege which of the particular ingredients in the supplement contained the bacilli anthracis. The defendant alone has the knowledge, or had the opportunity of discovering the knowledge, of which particular ingredient contained the germ. (11) All of the damages sustained by the plaintiff proximately resulted from the negligence of the defendant in the following particulars: (a) In failing to test the ingredients which it mixed into feed in such manner as to insure its freedom from bacilli anthracis. (b) In failing to exercise ordinary care in testing the ingredients to prevent incorporation of ingredients containing bacilli anthracis. (c) In mixing as a part of the supplement ingredients which contained bacilli anthracis. (d) In failing to test the feed, after it was mixed and before it was placed on the market, for the presence of bacilli anthracis. (e) In failing to exercise ordinary care in testing the feed in order to determine whether it contained bacilli anthracis before placing it on the market. (f) In placing on the market for sale and consumption by animals as feed a product which was dangerous and deadly in that it contained bacilli anthracis. (g) In permitting ingredients containing bacilli anthracis to be incorporated in a product placed on the market by the defendant as a food safe and suitable for and intended for animal consumption.
Paragraphs 1 through 11 and 21 through 30 of count 1, and paragraphs 2 through 8 of count 3 were incorporated and made a part of count 4, and the plaintiff further alleged in that count substantially the following: (5) The defendant was negligent per se in violating the Pure Food and Drug Law by placing on the market for sale as a food intended for animal consumption the supplement which contained a dangerous ingredient, or ingredients, to wit, an ingredient, or ingredients, containing bacilli anthracis, and which was unfit for animal consumption, and, in fact, dangerous and destructive of animal life.
The defendant's demurrers, both general and special, to each of the counts of the petition, were overruled, and the defendant assigns error on that judgment.
During the course of the trial, the plaintiff sought to amend paragraph 31 of count 1 and paragraph 11 of count 3 by adding the following allegations to each of those paragraphs as subparagraphs (f) and (h) respectively: "In failing to take any steps to withdraw from the market before purchase and consumption by the ultimate consumer, Bernd's Mineral Supplement, which had been sold by it to dealers after having been prepared without making any tests or inspection of the ingredients to determine its freedom from bacilli anthracis." The court disallowed this amendment, but no exception was taken by the plaintiff.
The jury returned a verdict for the plaintiff for $28,400.90. The defendant's motion for new trial, based on the usual general grounds and nine special grounds, was denied, as was its motion for judgment notwithstanding the verdict, and the defendant assigns error upon those judgments.
1. The defendant filed a general demurrer and several special demurrers, and the plaintiff filed amendments to his petition. In their brief the defendant's counsel make the statement that the amendment met several of their special demurrers, but did not argue or insist on a ruling on their special demurrers and did not point out the ones that were not met by the amendment, but argued their general demurrer and insisted that the general demurrer should have been sustained, as this case is based on negligence and there can be no recovery under the laws of Georgia from a manufacturer who sells his products to a dealer who in turn sells it to a purchaser and the purchaser feeds it to his animals even though the feed kills or damages the animals, and even though the manufacturer was negligent in the manufacture of the product. We do not agree with this contention, but hold that if a manufacturer negligently in the manufacture of feed to be sold to the public for the purpose of being fed to animals of the purchaser puts therein substances or minerals that will kill or injure the animals, the manufacturer who puts it on the market is liable, and cite in support of this holding Burns v. Ralston Purina Co., 210 Ga. 82 ( 77 S.E.2d 739) in which the Supreme Court reversed a nonsuit in favor of a manufacturer by the lower court in an action for the death of turkeys allegedly due to moulded feed fed to the turkeys. That case is authority for holding that a manufacturer is liable for his negligence in the manufacture of feed if his negligence in the manufacture of same causes damages to the purchaser of the feed thus manufactured by him if the purchaser is damaged by the manufacturer negligently putting into the feed material or supplements that cause the death or injury of the animals to which the feed is fed. We also cite in support of this proposition Eades v. Spencer Paint Co., 82 Ga. App. 123, 129 ( 60 S.E.2d 543), in which it is said: "There is no controlling precedent in this State contrary to the ruling made in the Ellis case, and the trend of cases decided in this State appears to be to allow recovery on the part of a consumer or user of a product, if through a failure to exercise ordinary care on the part of a manufacturer or someone not in privity with the user, the product is imperfect, defective, or not as represented when placed on the market, and damage to the consumer or user is proximately caused thereby."
A case very similar to this case in which the Georgia law was applied by the Fifth Circuit of the U.S. Court of Appeals is Swift Co. v. Morgan Sturdivant, 214 Fed. 2d 115, wherein the owner of dairy cows which had been killed by eating cotton-seed meal which was defective due to negligence of the defendant manufacturer, was permitted to recover for his damages. Consequently, the trial court did not err in overruling the general demurrer.
2. In ground 4 of the defendant's amended motion for new trial, complaint was made because the court permitted certain evidence over the objection of the defendant as being a conclusion elicited by counsel of the plaintiff from a witness of the plaintiff, Miss Lithauser, that she regarded as necessary an immediate report because she understood the situation was critical and the animals were dying like flies. The objection was made on the ground that the question called for a conclusion. "It is not error to admit evidence over the general objection that the question called for a conclusion." West Lumber Co. v. Schnuck, 85 Ga. App. 385 (4) ( 69 S.E.2d 577).
3. Ground 5 of the defendant's amended motion for new trial complains that the trial court admitted the testimony of the plaintiff that "my place is known as the anthrax place," over the objection that it called for a conclusion of the witness. The rule stated in the foregoing division is equally applicable to this division.
4. Ground 6 of the defendant's amended motion for new trial contends that the court committed error in allowing, over the objection of the defendant, the reading in the presence of the jury, of a publication in which the writer urged his membership to take all practical steps to examine imported bone meal for anthrax spores and to process this meal when practical to kill these germs. The objections were based upon the reasons (1) that it was hearsay; (2) that the phrase "imported bone meal" did not sufficiently distinguish between steam bone meal and raw bone meal when the evidence in the case showed that there was a vast difference between the sterility of the two and the process used in making the two sterile or not sterile. The court admitted the evidence and limited its purpose to demonstrate what knowledge or warning this witness had concerning bone meal and not as proof that the statement or the practice contended in the statement was correct or proper. The trial court did not err in denying this ground of the motion as there was other evidence offered by exactly the same witness and to the same effect without objection. The erroneous admission of evidence as to a certain fact is not cause for a new trial where the same fact was shown by other evidence of the same character to which no objection was made. Arcady Farms Milling Co. v. Betts, 93 Ga. App. 255 ( 91 S.E.2d 289).
5. Ground 7 of the defendant's amended motion for new trial contends that the court committed error in permitting the plaintiff to show on cross-examination of the defendant's agent, Mr. Sigal, over the objection of the defendant, that after the various notices about the outbreak of anthrax in the United States, and the dangers in the use of certain bone meals, the defendant did not take any steps to withdraw from the market any of the Bernd's Mineral Supplement which it had put into the hands of dealers.
This evidence was admissible as bearing on the question of whether or not the defendant with such notice exercised ordinary care in the original mixing of the bone meal in the supplement, and also on the question of its diligence after the defendant received additional information and further warnings before the feed was used by the plaintiff in its failure to do anything about withdrawing the meal from the market when it had every reason under the evidence to know that the supplement was dangerous and should not have been used in feeds.
6. Grounds 8 and 9 of the defendant's amended motion for new trial contend that the court committed error in allowing in evidence certain exhibits. These grounds present no question for decision by this court as they are incomplete in failing to set out the exhibits.
7. Grounds 10 of the defendant's amended motion for new trial contends that the court committed error in permitting the plaintiff to ask a hypothetical question without any evidence to support the hypotheses. This ground recites that the defendant objected to the question "on the basis that it was a hypothetical question without the evidence to support the hypotheses." This was too general as an objection as it did not point out wherein it was contended that the question was not supported by the evidence, and therefore being incomplete, it was not error for the court to overrule the objection. See in this connection, Freeman v. Young, 147 Ga. 699 ( 95 S.E. 236). Furthermore, the witness stated that he could not answer the hypothetical question.
8. The defendant has expressly abandoned ground 11.
9. Ground 12 of the defendant's amended motion complains of the court's refusal to allow the defendant to show that after its manufacture of the particular products which it was contended caused the plaintiff's injury and after the various regulations of the Department of Agriculture introduced by the plaintiff with reference to steamed bone meal, that the defendant sought to import from a foreign country some steamed bone meal and furnished the Commissioner of Agriculture a statement as to its method of processing and was allowed to import the steamed bone meal, it being stated that evidence was to show that it was a part of the general transaction during a period of time when bone meal was a suspected source of anthrax. This ground is without merit. The defendant was seeking to show transactions had with the Commissioner of Agriculture after this feed was manufactured in regard to the Commissioner's permitting the defendant to import steamed bone meal. It would not be material in this case how diligent the defendant was in importing other steamed bone meal after the damage was sustained. The supplement had already been negligently manufactured prior to the transaction by which they were seeking to show that they were allowed by the Commissioner of Agriculture to import other bone meal. See in this connection Curtis v. Macon Ry. c. Co., 18 Ga. App. 145 ( 88 S.E. 997).
10. The trial court did not commit error in denying the defendants' motion for new trial based on the general grounds, or in denying the defendants' motion for judgment notwithstanding the verdict, as the testimony was sufficient for the jury to infer that the feed was negligently manufactured by the defendant, and its negligence in the manufacture of the feed was the proximate cause of the plaintiff's damages. There was sufficient proof of each of the elements of damage for the jury to render the verdict rendered. As counsel for the plaintiff state in their brief, and we find this statement to be supported by the record, the jury was authorized to find:
"(1) Bone meal is a frequent and dangerous source of anthrax infection and should never be used in a feed for animals unless it has been rendered sterile by heat and pressure sufficient to kill the anthrax bacilli, and the defendant knew all this.
"(2) Degelatinized bone meal is not sterile and has not been subjected to heat and pressure sufficient to kill anthrax bacilli.
"(3) Defendant used degelatinized bone meal in manufacturing the Bernd's Mineral Supplement which it shipped to Neville Feed Company on March 24, 1952, and plaintiff purchased 5 sacks in their original container and in the same condition Neville Feed Company received it from defendant.
"(4) While plaintiff's cows were being fed a feed into which this supplement had been mixed, they suddenly began to die from anthrax.
"(5) An unopened bag of defendant's supplement on hand in plaintiff's feed room was found to contain anthrax bacilli and the anthrax bacillus was also located in empty sacks from which the supplement had been poured in mixing the feed and the anthrax bacillus was found in the mixed feed after the supplement was added and in the mixing machine, but was not found in any of the other component parts of the mixture before the supplement had been added to it."
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.