Opinion
33722.
DECIDED OCTOBER 11, 1951.
Action for damages; from Fulton Civil Court — Judge Etheridge. June 13, 1951.
Harris, Henson Spence, for plaintiff.
Alston, Foster, Sibley Miller, Philip H. Alston Jr., Dan B. Hodgson, for defendant.
The only ground of the motion for a new trial insisted upon by the plaintiff in error was an exception to a charge of the court, which was not error for any reason assigned. Accordingly, the trial judge did not err in overruling the motion for a new trial.
DECIDED OCTOBER 11, 1951.
E. B. Henley sued Sears-Roebuck Company for $3400 damages arising out of the breach of an implied warranty in the sale of an incubator. Henley's amended petition alleged in substance the following case: The defendant is a retail merchant, and on or about May 1, 1948, the plaintiff purchased from the defendant an incubator for hatching eggs, with a capacity for 3200 eggs. When the incubator was purchased, the defendant's employees told the plaintiff that their mechanics had overhauled the incubator and put it in first-class condition. The plaintiff carried the incubator to his farm in Fulton County and tested it to ascertain that it was in good operating condition. The incubator, from the tests made, appeared to be in usable condition, whereupon the plaintiff placed 3100 pheasant eggs in it, in batches of 1200 eggs at first, then 1200 more eggs four days later, and 700 eggs after four more days, so that the pheasant chicks would not all hatch at once. When 600 chicks had been hatched from the first batch, the plaintiff prepared to remove them to prevent crowding. The thermostat failed, permitting the temperature within the incubator to rise suddenly from a normal temperature of 99.75 degrees to more than 175 degrees, which was so hot that every pheasant chick and the remaining unhatched eggs were destroyed, a loss of 600 chicks and 1900 [2500?] eggs. An integral part of the incubator was a gong, which should have sounded if the temperature within the incubator varied 1.5 degrees over the normal temperature of 99.75 degrees. The gong failed to sound when the thermostat failed to operate, and the plaintiff thus received no warning of the rise in temperature which took place. Because of this mechanical failure of the integral parts of the incubator, the plaintiff lost 2500 embryo pheasant chicks worth $1 each and 600 pheasant chicks worth $1.50 each, or a total loss of $3400. The incubator sold to the plaintiff by the defendant was not merchantable and was not reasonably suited to the use for which it was intended. All of the unhatched pheasant eggs were fertile and would have hatched good and merchantable chicks but for the failure of the incubator. The incubator was properly and skilfully operated by the plaintiff under favorable conditions reasonably calculated to produce good results. The defendant knew that the plaintiff was purchasing the incubator to hatch pheasant eggs, and that it would be installed and used as it was. There were certain latent defects in the incubator, which the plaintiff could not have discovered by reasonable test and inspection, one of which defects, in the thermostat, was sufficient to cause the failure of the incubator as set out. The thermostat's function of cutting off the electric current to heat-producing electrodes depends upon the expansion and contraction of a metal disc with temperature changes, and when this failed to work, the temperature inside the incubator went up to 175 degrees, hot enough to destroy eggs or newly hatched chicks.
In its answer, the defendant admitted only the jurisdictional allegation of the petition, and by way of further answer alleged in part: that on May 7, 1948, it sold to the plaintiff an incubator, regularly priced at $75, for $69.50, the allowance being made because the incubator was a "return item," which was known by the plaintiff at the time of his purchase; that, if the incubator was defective as alleged, such defect was fully known to the plaintiff or was discoverable by him by the exercise of caution; and that, by the exercise of caution as required by law, the plaintiff could and should have determined any defect of which he complains and is, therefore, not entitled to recover.
Upon the trial of the case, the jury returned a verdict for the defendant. The plaintiff moved for a new trial, his motion was overruled, and he excepted.
The only assignment of error in the motion for a new trial which is insisted upon here is to the following charge of the court: "I charge you, further, that, if the defendant should be found to have breached its implied warranty, and if the plaintiff, Mr. Henley, knew or had good reason to believe that the incubator was operating improperly or was operating in such a manner as to cause a reasonable man to be alarmed at the effect it might have on his eggs; and if you also find that the plaintiff continued to use the incubator despite that fact and did not give the defendant, Sears-Roebuck Company, an opportunity to remedy the defect, then, in that event, you should return a verdict for the defendant. The plaintiff may not, after having learned of the defect, if he did learn of the defect, continue to use the article to his own further damage, and the duty is on the plaintiff, once the defect is discovered if there was a defect, to immediately take every precaution that a reasonable person would take to prevent any further damage and to mitigate any damage which might have already started." The plaintiff in error contends that this charge was not authorized by the evidence; that it submitted to the jury an issue of fact not raised by the evidence, to wit, that the plaintiff continued to use the incubator after he had reason to believe that the same was operating improperly; and that it was confusing to the jury and incorrect as an abstract principle of law when applied to the evidence in the case.
The evidence showed: that the plaintiff bought the incubator knowing that it had been used; that he tested it for a few days, during which it seemed to perform perfectly; that he put 3100 eggs into it, which began to hatch in 22 days; that, when several hundred chicks were hatched, the plaintiff went upstairs from the basement where the incubator was located to obtain some brooders to receive the chicks from the incubator and was gone for about 40 minutes; that when he returned, he found the chicks, hatched or unhatched, killed by the heart which had broken the thermometer within the incubator; and that the warning bell had failed to ring.
There was also evidence to the effect that the plaintiff had reason to believe that something was wrong with the incubator before it became overheated. The plaintiff testified that he had called in an electrician to look at the incubator during the 22-day period before the eggs began to hatch, and that the electrician had said, "Just whisper a little prayer and let's see if it don't work." G. H. Camp, the electrician, testified that the plaintiff had asked him, before the chicks were destroyed, to come to look at the incubator and give his opinion about it, saying that he, the plaintiff, was worried about it; that he did not remember making a statement to the plaintiff to the effect that the plaintiff should let the incubator alone and see if it would work, but on the contrary he told the plaintiff, "If the incubator was mine, I would have something done to it." The plaintiff also testified that he had secured extra parts for the heat control mechanism from the defendant after he had put the incubator into operation; and that slight temperature fluctuations in the incubator had alarmed him, although they had not caused the alarm bell to ring; but that he did not install or have the extra parts installed in the incubator. There was evidence that a micro-switch, which controlled the alarm bell, could have been installed in the incubator in 15 or 20 minutes without any difficulty whatsoever, the witness stating that he had seen a micro-switch changed in the process of hatching and had done it himself. The charge complained of was authorized by, and adjusted to, the evidence in the case, and was not erroneous for any of the reasons advanced by the plaintiff in error.
"Where by a breach of contract one is injured, he is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence." Code, § 20-1410. This rule applies to damages resulting from the breach of an implied warranty. Speed Oil Co. v. Griffin, 73 Ga. App. 242 ( 36 S.E.2d 205). If there was a breach of the implied warranty that the incubator was "merchantable, and reasonably suited to the use intended" (Code, § 96-301), by reason of a latent defect therein, which defect upon discovery might reasonably be expected to endanger the safety of the eggs therein, then if such defect became known to the plaintiff, he was bound to exercise reasonable care and diligence to lessen the damage which might result therefrom. The duty imposed on the plaintiff was to use ordinary care to prevent foreseeable damage. Jones v. Knightstown Body Co., 52 Ga. App. 667, 672 ( 184 S.E. 427).
Accordingly, the trial judge did not err in overruling the plaintiff's motion for a new trial.
Judgment affirmed. Felton and Worrill, JJ., concur.