Arnold N. May Builders, Inc. v. Bruketta

• Decision Date: 15 June 1978
• Docket Number: No. 77-381,77-381
• Citation: 60 Ill.App.3d 926,377 N.E.2d 579,18 Ill.Dec. 290
• Parties: , 18 Ill.Dec. 290 ARNOLD N. MAY BUILDERS, INC., Plaintiff-Appellant, v. Nick S. BRUKETTA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 579

377 N.E.2d 579

60 Ill.App.3d 926, 18 Ill.Dec. 290

ARNOLD N. MAY BUILDERS, INC., Plaintiff-Appellant, v. Nick S. BRUKETTA, Defendant-Appellee.

No. 77-381.

Appellate Court of Illinois, Third District.

June 15, 1978.

Thomas G. West, West, Neagle & Williamson, Ronald Henson, Barash & Stoerzbach, Galesburg, for plaintiff-appellant.

Kent F. Slater, Lucie, Heiser & Slater, Macomb, for defendant-appellee.

SCOTT, Justice.

On May 24, 1972, Arnold N. May Builders, Inc. entered into a contract with Nick S. Bruketta for the construction of a cattle confinement building on Bruketta's farm. Mr. Bruketta was in the cattle feeding and sale business. The contract price was $18,472 payable on the following terms: $1,472 on signing of the agreement, $8,500 when the building materials were delivered to the job site, and $8,500 upon completion of the structure.

Bruketta agreed to construct the foundation for the building, and Carl Johnson, an agent for Arnold N. May Builders, Inc., entered into an agreement with a subcontractor, Wayne Cramer, to erect the building over Bruketta's foundation. Thereafter, the building materials were shipped to the Bruketta farm and arrived at the job site sometime during the last two weeks of July or the first week of August.

Work on the building was scheduled to be done in August or September of 1972. The record is not clear what caused the construction delays, but it does reveal that work was not begun by the subcontractor and Mr. Bruketta and Bruketta's sons until November 4, 1972. Progress on the structure was unsatisfactory through the months of November, December, and January, and finally, in February, 1973, employees of May Builders came in and took over the construction project. Mr. Bruketta and his sons continued to work for the May Builders' crew and the building was completed at the beginning of April.

In apparent reliance upon representations that the building would be completed within approximately five weeks after construction began, Bruketta purchased 322 head of cattle from October 25, 1972, through November 2, 1972. Until the building was completed Bruketta only had an open feed lot to maintain these newly acquired cattle. What is more, that feed lot had not been properly prepared for "wintering" cattle, because again, Bruketta relied upon representations that the building would be complete before the severest winter months of January, February and March.

After May Builders submitted its final invoice of $8,500 to Bruketta, efforts were made by the parties to arrive at a final balance, giving Bruketta credit for labor and materials he had expended. An agreement could not be reached, however, and suit was finally instituted by May Builders to recover. Bruketta responded with a counterclaim for the value of his labor and materials, and also for damages to his cattle which were exposed to winter weather in an open feed lot. Bruketta alleges that the death rate among his herd and the rate of weight gain among the survivors were adversely affected by the exposure.

At trial, the plaintiff, May Builders, stipulated that Bruketta was entitled to a credit for his labor in the amount of $1,779.79. The question of whether any additional credits would be allowable was submitted to the jury as a part of defendant Bruketta's counterclaim. The jury returned its verdict increasing the credit for labor and material by $4,575.61 and, in addition, assessed damages to defendant's cattle in the amount of $19,907.90.

The plaintiff appeals from the verdict on the counterclaim alleging certain errors in admission of evidence at the trial. Specifically plaintiff objected to: (1) testimony by defendant which established an alleged causal connection between exposure to the winter elements and an adverse death rate and rate of weight gain among the herd; and also, testimony by defendant which established the alleged measure of damages suffered by defendant.

The defendant testified that he usually ran herds of cattle through the winter months of from 300 to 500 head, and with proper preparation of the open feed lot in past years his losses were from one to two head of cattle each winter. However, during the winter period in question defendant lost 14 head of cattle. Defendant testified that during the winter in question, that is 1972-1973, he did not prepare the open feed lot as he usually did in reliance on plaintiff's representations as to when the confinement building would be completed.

The following colloquy occurred between defendant and defense counsel "Q: Do you have an opinion as to what caused these cattle to die, those 14 you testified to, in January, February, and March, 1973?

A: What made these 14 die?

Q: Yes, do you have an opinion?

A: Yes, I have an opinion.

Q: What is that opinion?

A: Exposed to the weather and mud too much.

Later in the trial this exchange took place:

"Q: Was your testimony that the lack of winterizing the lot by putting these cobs in, is that correct? (Sic)

A: That is right, the feed lot should have been ready for the cattle during the winter months.

Q: Based on your total experience then, this is the one factor that attributed to your loss in rate of gain?

A: That is right."

The plaintiff objects to the admission of both of these opinions because it asserts that the responses are speculative, conjectural, and improper opinion evidence.

It is too late in the development of evidence law to argue that defendant Bruketta cannot qualify as an expert on the subject of cattle husbandry, so as to permit him to offer opinions on subjects beyond the ken of the ordinary laymen. Defendant cites examples such as Dutton v. Rocky Mountain Phosphates (1968), 151 Mont. 54, 438 P.2d 674, in approving the opinion evidence of a cattle rancher; Smith v. Atco Co. (1959), 6 Wis.2d 371, 94 N.W.2d 697, in approving the opinion evidence of a mink rancher; and Peterson v. Greenway (1964) 25 Wis.2d 493, 131 N.W.2d 343, in approving the opinion evidence of a dairyman. Illinois courts have likewise afforded expert status to those engaged in animal husbandry. (Pearson v. Zehr (1891), 138 Ill. 48, 29 N.E. 854; Walters v. Stacey (1905), 122 Ill.App. 658. "An expert has been defined as a person who is qualified, either by actual experience or by careful study, and may be competent to testify as an expert in proper circumstances although his knowledge was acquired through practical experience rather than scientific study, training or research. * * * There is no precise requirement as to the mode in which skill or experience shall have been acquired." People v. Oberlander (1969), 109 Ill.App.2d 469, 248 N.E.2d 805, 807.

Plaintiff misses the mark in contending that Mr. Bruketta is not an expert. There are no hard and fast rules which determine an expert's minimum qualifications, but such determination is within the discretion of the trial judge. In the instant case, defendant Bruketta has been engaged in the cattle business all his life, and since 1962 in his present location. Since 1964, he has maintained a herd of between 300 to 500 head of cattle, fattening those animals for slaughter markets on diets of corn, corn silage and hay. The defendant testified extensively as to his experience with various cattle diseases, including shipping fever, red nose, black leg, pneumonia and bloat. He recited in detail the mechanics of the cattle farmer's feed-weight gain ratio, and explained what his past experiences where in fattening cattle for the slaughter markets. It is clear that in light of defendant's background he could qualify so as to offer opinion evidence as to matters regarding cattle husbandry, and the trial court did not abuse its discretion in ruling that he had sufficient skill, knowledge and experience in the field.

Opinion evidence must not only be offered by one who possesses sufficient skill, knowledge, and experience, but also, before such evidence becomes admissible it must be weighed for its contribution to the jury's understanding of the facts in issue as opposed to its possible prejudicial effect on the jury's deliberation. A number of factors enter into this balancing or weighing process, including the complexity of the subjects involved, the purpose for which the opinion is offered, the relation to the ultimate issue to be determined, and the danger of undue prejudice.

No longer do Illinois courts adhere to the absolute prohibition against admission of opinion evidence which speaks to the ultimate issue to be determined by the jury. In the case of Clifford-Jacobs Forging Co. v. Industrial Comm. (1960), 19 Ill.2d 236, 166 N.E.2d 582, the Illinois Supreme Court reviewed its past decisions and refined the rules concerning the admissibility of opinion evidence. Justice Hershey, writing for a unanimous court, cites approvingly the decision in Chicago Union Traction Co. v. Roberts (1907), 229 Ill. 481, 82 N.E. 401, 402, which says:

"The opinion is permitted to be given to enable the jurors to draw the inferences from the evidence which their want of knowledge would otherwise prevent. * * * (causation) was a question for the jury to determine, but it was impossible for them to answer without hearing the opinions of...