Summary
adopting market value less salvage value as the measure of damages for the destruction of livestock
Summary of this case from United States v. Crown Equipment Corp.Opinion
April 29, 1965 —
June 1, 1965.
APPEAL from a judgment of the circuit court for Winnebago county: ARNOLD J. CANE, Circuit Judge. Affirmed in part; reversed in part.
For the appellant there was a brief by McLeod, Donohue Colwin of Fond du Lac, and oral argument by Joseph D. Donohue.
For the respondent there was a brief by Lucas Plaisted of New Holstein, and oral argument by Thomas H. Lucas.
This is an action to recover for damages to the plaintiff's mink herd resulting from the defendant's mistaken delivery of irradiated yeast rather than brewer's yeast to the plaintiffs mink ranch.
On November 7, 1958, the plaintiff placed an order with Boulay Brothers Company, a Wisconsin corporation engaged in the animal-food business; included in this order was a request for two 100-pound bags of brewer's yeast. That same day, there were delivered to the plaintiff by the defendant two 100-pound bags of irradiated yeast. It is conceded by the defendant that it erred in delivering irradiated rather than brewer's yeast.
A day or two after this erroneous yeast was received, one of the plaintiff's employees noted that the new yeast bags were different from those which had been received in the past and called this fact to the plaintiff's attention. The brewer's yeast which the plaintiff had received previously from the defendant had been packaged in burlap bags, whereas the present shipment of irradiated yeast came in reinforced paper sacks. The plaintiff inspected the bags, smelled the yeast and tasted it. Mr. Nelson testified that he knew this yeast was different from that which he had ordered but did not think the difference was important. The plaintiff told his employee that it was all right to use it.
Brewer's yeast is light in color and weight, whereas irradiated yeast is heavier and darker. An important difference between the two is that irradiated yeast is much more potent in its vitamin D content. This irradiated yeast was used by the plaintiff in the mink diet for approximately six weeks before it was discontinued; during this period it was noted that there was an unusually high death rate among the herd. An autopsy of the dead mink eventually revealed that the cause of death was vitamin D toxicity.
The plaintiff testified that he lost 54 mink before the 1958 pelting season at a value of $2,850; he also lost 136 breeder mink after the pelting season was over, which he valued at $15,375. In addition, he claimed that he incurred additional expenses of $1,103.60 and set damages to his 1959 crop at $21,875. The total of all these claimed damages is $41,203.60. This figure does not include the salvage value of the dead mink, nor does it reflect the normal death toll to the herd, which the plaintiff estimated at 20 mink per month. This figure also does not include the expense of $12 per mink for the unborn kits, which represents the plaintiff's cost to raise said mink. In his brief, the plaintiff calculated these deductions to total $11,236.80.
In July, 1959, more than seven months after the delivery, the plaintiff served on Boulay Brothers Company a notice of breach of warranty. On March 24, 1961, he commenced this lawsuit, alleging causes of action based on breach of warranty and negligence theories.
A trial by jury was held, and the effect of the special verdict is that there had been no breach of implied warranty. The jury, however, did find that the defendant had been negligent and assessed 75 percent of the total negligence to the defendant; 25 percent of the negligence was charged to the plaintiff. The jury further found that the plaintiff's damages were in the amount of $28,000. This is an appeal from the judgment entered in accordance with the verdict.
The appellant has challenged both the liability and the damage phases of this case.
Liability.
The jury found that the plaintiff's examination of the yeast which was delivered either did reveal or ought to have revealed the presence of the defect. It follows that there could be no liability for the breach of an implied warranty of fitness under sec. 121.15(3), Stats., or, in the absence of timely notice, for breach of warranty under sec. 121.49.
The record clearly establishes that Mr. Nelson knew by sight, taste, and smell that the yeast in the bags was different from that which he had previously used. This not only precluded his claim under the Sales Act, argues the appellant, but also it barred his recovery under a negligence count. The appellant advances a number of theories, including intervening cause and the claim that the plaintiff's negligence exceeded that of the defendant.
The jury found that the plaintiff was 25 percent negligent; the judgment in this case was entered based on common-law negligence, with the damages being reduced by the amount of the plaintiff's comparative negligence. Even though Mr. Nelson's inspection and his failure to give seasonable notice under sec. 121.49, Stats., defeated his contract claim, it did not foreclose the action in negligence. We do not believe that the loss of one's right to relief under the Sales Act automatically precludes recovery in an action based on negligence. No specific ruling to this effect has come to our attention, but this conclusion is implicit in Tews v. Marg (1944), 246 Wis. 245, 249, 16 N.W.2d 795, and Zingale v. Mills Novelty Co. (1943), 244 Wis. 144, 149, 11 N.W.2d 644. See also Greenman v. Yuba Power Products, Inc. (1962), 27 Cal.Rptr. 697, 377 P.2d 897, 899.
A number of cases have been presented to this court in which a plaintiff has alleged breach of warranty and, alternatively, negligence. E.g., Strahlendorf v. Walgreen Co. (1962), 16 Wis.2d 421, 114 N.W.2d 823; Betehia v. Cape Cod Corp. (1960), 10 Wis.2d 323, 103 N.W.2d 64.
The instant action arose before the effective date of the Uniform Commercial Code. We note, however, that there is broad language in the new sec. 402.607(3) (a), Stats., which would suggest that a buyer who fails to give notice is "barred from any remedy." We are not called upon to determine whether a different conclusion would result from the new legislation.
The plaintiff claimed that he did not anticipate any danger in using the irradiated yeast, and this position is not inherently incredible. The jury, however, charged 25 percent of the negligence to Mr. Nelson for using the yeast which he knew to be different from that which he had used in the past. We see no reason for upsetting that assessment.
We conclude that there is no error in connection with the findings of the jury as to liability and as to the comparison of negligence. The judgment, insofar as it reflects such findings, must be affirmed.
Damages.
If one takes the testimony which was most favorable to the plaintiff, there was a gross loss suffered by him in the sum of $41,203.60. The plaintiff has acknowledged that there are various deductions which would have to be taken from such gross loss, leaving a maximum net loss of $29,966.80. The jury fixed the damages of the plaintiff at $28,000, and we hold that the judgment based on such finding as to damages cannot stand. The reason for this conclusion is that the jury's assessment erroneously included all or almost all of the sum of $21,875 which the plaintiff claimed for damage to his future herd.
The jury accepted the plaintiff's contention that his next year's mink crop was reduced by approximately 500 kits. The plaintiff's claim as to the loss of his future herd was as follows:
125 breeders at $100 apiece $12,500 375 pelters at $25 apiece 9,375 ------- Total $21,875 The allowance of an award for loss of future production is based on Mr. Nelson's contention that the death of some of his breeding herd in turn caused a diminution in the next year's total crop.There are two flaws in connection with this award for a future loss. The first is that upon this record the amount is speculative, and the second is that there may be a duplication of damages, since the market value of an animal would ordinarily include an amount attributable to its ability to reproduce.
The speculative nature of the damages in this regard is apparent from Mr. Nelson's testimony. When asked to state the amount of his loss to his breeding herd, he replied, "The fact is, it is impossible to figure." Except for the figures recited above, there is no further explanation in the record as to how the plaintiff arrived at the figures of $12,500 and $9,375.
Upon the present record, the damages for loss of future births were not established with reasonable certainty. Smith v. Atco Co. (1959), 6 Wis.2d 371, 94 N.W.2d 697, 74 A.L.R.2d 1095. However, even if the speculative aspect could be removed by further evidence, we nevertheless view this as an improper item of damages. The basic measure of damages for the destruction of livestock is the animal's market value, with an appropriate reduction for any salvage value. Bell v. Gray-Robinson Construction Co. (1954), 265 Wis. 652, 62 N.W.2d 390; Gould v. Merrill Railway Lighting Co. (1909), 139 Wis. 433, 447, 121 N.W. 161; Anno. 79 A.L.R.2d 677, 687.
If a mink has increased value at a certain period of the year because of its breeding capacity, this should find expression in an appraisal of its market value. To allow recovery for both market value and also for the loss of future litters would open the door to a duplication of damages. If Mr. Nelson had to pay a high price for replacements at breeding periods, that would be but another factor in determining their market value. In the Gould Case, supra, the court said, at page 448:
"But where the full value at the time the horse was injured is recovered, there can be no additional recovery for loss of use of the horse."
In our opinion, Mr. Nelson was entitled to recover the market value of those mink which died because of the defendant's negligence less their salvage value. In addition, a deduction would have to be made for those mink which would have died in the normal course of operations. The market value would be demonstrated by the reasonable cost of replacing the mink with comparable animals. Mr. Nelson testified that he replaced only two of the dead mink, but the reason for such limited replacement was not fully explored. The record does not establish that these mink were unique.
A case which considered a problem comparable to that in the case at bar is Covey v. Western Tank Lines (1950), 36 Wn.2d 381, 218 P.2d 322. The Washington supreme court held there could be no recovery for unborn mink.
Since the verdict included in the answer to the damage question an item which was legally erroneous, we conclude that there must be a new trial on the question of damages. While this court in Spleas v. Milwaukee Suburban Transport Corp. (1963), 21 Wis.2d 635, 124 N.W.2d 593, has extended the rule of Powers v. Allstate Ins. Co. (1960), 10 Wis.2d 78, 102 N.W.2d 393, to permit its use in cases in which the prejudicial error was confined to damages, we believe that in the instant case the wiser course is to order a retrial of the damage issue.
In conclusion, the judgment must be affirmed in all respects except as to damages, and as to damages the judgment is to be reversed for a new trial limited to that issue. Costs are to be awarded to the appellant.
By the Court. — Judgment affirmed in part and reversed in part. Cause remanded for further proceedings consistent with this opinion.