Circle J Dairy, Inc. v. A.O. Smith Harvestore Products, Inc.

• Decision Date: 12 May 1986
• Docket Number: 85-1536 and 85-1565,Nos. 85-1505,s. 85-1505
• Citation: 790 F.2d 694
• Parties: 20 Fed. R. Evid. Serv. 939 CIRCLE J DAIRY, INC., Appellee and Cross-Appellant, v. A.O. SMITH HARVESTORE PRODUCTS, INC., and Southern Harvestore Systems, Inc., Appellants and Cross-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 694

790 F.2d 694

20 Fed. R. Evid. Serv. 939

CIRCLE J DAIRY, INC., Appellee and Cross-Appellant, v. A.O. SMITH HARVESTORE PRODUCTS, INC., and Southern Harvestore Systems, Inc., Appellants and Cross-Appellees.

Nos. 85-1505, 85-1536 and 85-1565.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 11, 1985.

Decided May 12, 1986.

Steven B. Davis, Harrison, Ark. for A.O. Smith Harvestore.

William R., Still, Jr., Fayetteville, Ark., for Southern Harvestore.

John Elrod, Siloam Springs, Ark., for Circle J Dairy, Inc.

Before ARNOLD and WOLLMAN, Circuit Judges, and REGAN, ^* Senior District Judge.

ARNOLD, Circuit Judge.

This negligence case was brought by Circle J Dairy, owner of a dairy farm in Northwest Arkansas, against A.O. Smith Harvestore Products, Inc. (AOSHPI) and Southern Harvestore Inc. (Southern), who are respectively manufacturer of and dealer in a system, known as Harvestores, for storing, ensiling, and feeding agricultural feedstuffs to livestock. In this appeal, defendants challenge a jury verdict of $500,000 in favor of the plaintiff, who alleged it was damaged by AOSHPI's negligence in design and Southern's negligence in phasing in the use of the system and in formulating feed rations for Circle J's herd. The jury, which apportioned fault at 26 per cent. to AOSHPI and 74 per cent. to Southern, also found that Southern and AOSHPI, through Southern as its agent, were guilty of deceit.

Defendants argue that the judgment should be reversed because the District Court ¹ refused to instruct the jury on comparative fault; denied motions for new trial on grounds that the awards for lost milk production and permanent damage to the herd were based on insufficient evidence; and erred in submitting the issue of deceit to the jury and also in admitting certain testimony as expert under Fed.R.Evid. 702.

We affirm. Although the District Court's refusal to submit the issue of comparative fault to the jury was error, its damage instruction, which directed the jury to reduce any award to plaintiff by the amount which the plaintiff might have "avoided through the exercise of ordinary care," served essentially the same function as would have been fulfilled by an appropriate comparative-fault instruction. As for the issues of lost milk production and permanent damage to the Circle J herd, we hold that plaintiff has presented sufficient evidence of such damage to support the jury's verdict. Finally, we agree with defendants that the question of deceit should not have gone to the jury; however, because the District Court granted defendants' motion for a judgment notwithstanding the verdict, and plaintiff's minimal deceit evidence was relevant to its negligence claim, this error was also harmless.

I.

In 1981, Ira Thurman, the owner and operator of Circle J Dairy, ² leased two Harvestores ³ to be used in the feeding of his 300-plus head dairy herd. The Harvestore system, whose workings were addressed at length during the trial, was designed to prevent stored feed from fermenting beyond the point of its peak nutritional value, supposedly by limiting the amount of oxygen that can reach the feed. Both the mechanics of storage in the Harvestore and the system's procedure for feeding cattle represented major changes for Circle J; previously, Mr. Thurman fed the animals a mixture of alfalfa hay and dairy pellets as they were being milked in the dairy parlor.

The Harvestore system went on line at Circle J on 31 October 1981, and almost immediately there was a marked drop in milk production. Mr. Thurman, who was out of state for a family wedding when the changeover took place, ordered the animals put back on their old feed, and production returned to its previous daily level of approximately 40 pounds of milk per cow. Eventually, the Harvestore system was re-introduced.

Over the next two years, Mr. Thurman experienced a variety of problems with the system, which allegedly caused a second, permanent drop in milk production, to the point that the cattle, considered as a herd, lost their value as dairy animals. Plaintiff claimed the system was negligently designed by AOSHPI so that feed would spoil rather than be preserved; that Southern employees acted negligently in the manner in which they first set up the Harvestore system at Circle J and later advised Mr. Thurman to operate it; and that both AOSHPI and Southern were negligent in the development of feed rations for the Circle J herd.

In response, defendants argued that if there had been negligent management of the Harvestore system at the Circle J, it was the fault of Mr. Thurman and not AOSHPI or Southern employees. They pointed out that the herd was significantly increased in size at the time the Harvestores were first used, which could have caused a drop in production. To counter the testimony of plaintiff's experts, who had only bachelor's degrees and practical experience, ⁴ defendants' witnesses, most with doctoral degrees, testified that the Harvestore system worked as it was supposed to, that there was no permanent harm to the Circle J herd, and that any damage was attributable to plaintiff's mismanagement.

The case went to the jury on these negligence theories; the jury was also asked to determine if Southern employees, acting as agents of AOSHPI, were guilty of deceit in their dealings with Mr. Thurman. A plaintiff's verdict was returned on all questions; the District Court, however, granted a judgment n.o.v. on the deceit issue, while permitting the $500,000 verdict to stand. This appeal followed.

II.

This case was submitted on interrogatories, and the jury was asked to apportion responsibility between the defendants. However, because the District Court did "not believe that there is a jury question in relation to contributory or comparative negligence," Tr. 1065, it refused to instruct the jury to reduce plaintiff's award by the amount of its own negligence or other breach of duty. This was error. Under Arkansas law, the fault of a plaintiff is to be compared with that of a defendant, and plaintiff's recovery is then reduced in proportion to his or her responsibility for the injury. Ark.Stat.Ann. Sec. 27-1763 et seq. Circle J claimed the herd was injured as a result of faulty design of the Harvestore silo, which plaintiff says spoiled the ensiled feed, as well as by negligent planning by Southern. Defendants responded with sufficient evidence of owner mismanagement at the dairy--including the Thurmans' trip to Rhode Island at the time the Harvestore system went on line, the abrupt switch from pellets to silage, the quality of silage used at the dairy, the increase in the size of the herd, and Ira Thurman's lack of recordkeeping--to warrant a fault comparison by the jury.

Rather than instruct the jury on comparative fault, however, the District Court asked the jury first to apportion the negligence, if any, of the defendants and then later to "[s]tate the amount of damages sustained by plaintiff which you find could not have been avoided through the exercise of ordinary care." Tr. 1069. Moreover, while charging the jury, the District Court not only gave a mitigation instruction ⁵ but also twice described the function of the damages interrogatory. ⁶

[W]e're telling you that if you find Mr. Thurman had damages and that there was some liability on the part of the defendants, but that you also find that Mr. Thurman contributed to those, you'll give him only that portion of his damages which was not caused by his contribution.

Id. at 1061 (emphasis added).

[Y]ou're to place a figure in there which represents the amount you believe Mr. Thurman has been damaged not caused by his own actions.

Id. at 1069 (emphasis added).

A district court has considerable discretion in the style and wording of jury instructions, so long as the charge as a whole fairly and adequately states the law. Monahan v. Flannery, 755 F.2d 678, 681 (8th Cir.1985). Therefore, in a situation where a jury has been instructed erroneously, an appellate court should consider the charge in its entirety, Chohlis v. Cessna Aircraft Co., 760 F.2d 901, 904 (8th Cir.1985), and reverse only if a substantial right of the appellant has been affected. Fed.R.Civ.P. 61. In a case such as this, a proper comparative-fault instruction would have told the jurors that:

[If] you should find that the occurrence was proximately caused by negligence of both [plaintiff] and [defendant], then you must compare the percentages of their negligence.... If the negligence of [plaintiff] is of less degree than the negligence of [defendant], then [plaintiff] is entitled to recover any damages which you may find he has sustained as a result of the occurrence after you have reduced them in proportion to the degree of his own negligence.

AMI 2102, Arkansas Model Jury Instructions (2d ed. 1974). ⁷

A comparison of the damages instructions given in this case and that suggested by the AMI drafters shows that the Circle J jury was directed to go through the same deliberative process as would a jury that had been instructed properly on comparative fault. While we would be inclined to hold that the damages instruction and interrogatory alone served this purpose, the additional damages explanation given by the District Court make the present case clearcut. This jury undoubtedly knew that before awarding any damages, its responsibility was to "compar[e] the fault chargeable to [the] claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages." Ark.Stat.Ann. Sec. 27-1764. ⁸

As support for their argument that the instruction given here did not sufficiently direct the jury to its duty to compare the fault of the parties, the defendants cite Beevers v. Miller, 242 Ark. 541, 414 S.W.2d 603 (1967). That case held that "[e]ven if the court's general instructions could be said technically to have covered the matter in a general way, it is error to refuse to give a...