Covey v. Western Tank Lines

• Decision Date: 13 May 1950
• Docket Number: 31260.
• Citation: 218 P.2d 322,36 Wn.2d 381
• Parties: COVERY, v. WESTERN TANK LINES, Inc., et al.
• Court: Washington Supreme Court

218 P.2d 322

36 Wn.2d 381

COVERY, v. WESTERN TANK LINES, Inc., et al.

No. 31260.

Supreme Court of Washington.

May 13, 1950

Department 2.

Skeel, McKelvy, Henke, Evenson & Uhlmann Altha P. Curry, Seattle, for appellant.

W. R Cole, Ellensburg, J. D. Thomas, Jr., Seattle, for respondent.

HAMLEY, Justice.

This is an action in negligence to recover damages occasioned by the loss of five male mink.

Harry Covey owns and operates a mink ranch a short distance east of Cle Elum Washington, and adjacent to state primary highway No. 10. On the afternoon of September 22, 1947, a truck with attached semitrailer, owned by Western Tank Lines, Inc., and operated by Bob Bohn, was proceeding west on this highway. As the truck was about to pass the mink ranch, a wheel came off the trailer, rolled across the highway, and struck one of the mink sheds. Two male mink were killed and three others escaped from the damaged shed and were never recovered. All five of these male mink were what is known as dihybrid mink being the result of the breeding of Imperial Platinum mink and Aleutian Blue mink.

Covey thereafter brought this action against Western Tank Lines, Inc., Bob Bohn and Bohn's wife. Bohn and his wife were not served with process and the terms defendant and appellant, as used herein, will refer only to Western Tank Lines, Inc. Covey sought recovery for the loss of the five male mink, alleged in the complaint to be worth $800 each, and for $125.25 alleged damage to the pens. In his complaint he also sought recovery for the following alleged damages: 'That if plaintiff had not lost the above described five male mink by reason of defendants' negligence, those five male mink would have beem mated to twenty female mink of the same breeding, which plaintiff then and now owns, and that ninety-six young mink would have resulted from such mating, and that the value of those ninety-six mink that would have resulted from such breeding would have been $24,000.00 greater than the value of the ninety-six mink kits produced by the same female mink by reason of mating with male mink of other breeding.'

The case was tried Before a jury. Regarding the cause of the accident, the evidence disclosed that the wheel came off because the studs or bolts holding it sheared off at the place they enter the drum. The truck and trailer had left Seattle at midnight Before the accident, bound for Sunnyside to deliver a load of petroleum. At Sunnyside the tires and the lugs on the studs were checked. This inspection was done with a flashlight, but the wheel was not removed. One or two lugs were found loose and were tightened. The driver started from Sunnyside for Seattle about one-thirty p. m., and in three and one-half hours had gone some one hundred miles when the accident happened.

On the question of damages, counsel for plaintiff, in his opening statement, said that the value of each of the five male mink which had been lost would be nearer $500 than the $800 alleged in the complaint. The uncontroverted evidemce introduced by plaintiff showing that the fair market value of these five mink was between four and five hundred dollars each.

Relative to the damages claimed by reason of the alleged loss of mink progeny, considerable evidence was received, all of it over the objection of defendant. It was shown that in the 1948 breeding season, plaintiff's nineteen dihybrid female mink were mated with Imperial Platinum males, and resulted in ninety-six kittens. Had it not been for this accident, these females would have been mated with the five dihybrid males which were lost. Plaintiff's evidence tended to show that this mating would also have resulted in at least ninety-six kittens. Plaintiff then produced testimony and exhibits for the purpose of showing that the value of the ninety-six kittens which would have resulted from such mating would have been greatly in excess of the value of the kittens which were actually produced.

In this connection, expert witnesses testified as to the operation of the Mendelian law of averages in inheritance. Two charts were introduced as exhibits, one showing the number and type of mink actually produced in the 1948 season. The other chart showed the probable number and type of mink that would have been produced if the five dihybrid males had bred the nineteen dihybrid females. This second chart represented the operation of the Mendelian law in the breeding that would have occurred had the dihybrid males been abailable.

According to the evidence, the prime purpose of breeding dihybrid males to dihybrid females is to get Sapphires, a rare strain generally considered the finest and most valuable platinum mink yet produced. At the time of the trial there were some two hundred Sapphires in the United States among seven thousand breeders. In 1947 there were only three. The second chart referred to above shows that if five dihybrid males are bred to nineteen dihybrid females, there would be nine possible combinations in coloring of the offspring, one of which is a Sapphire. It was testified that, according to the Mendelian law, the breeding of dihybrids would show an average in mutations as shown on the chart, but that an 'indefinite' number of such breedings is necessary Before 'it would fit exactly the theoretical ratio.' One expert witness stated that the operation of this law is subject to variation in any direction. He illustrated the working of the theory by an example of flipping four coins of two different denominations, and the average of head and tail combinations resulting.

This law of heredity was discovered by the Abbot Johann Gregor Mendel in 1865. However, his paper setting forth the results of prolonged experiments in crossing varieties of the garden pea was overlooked until 1900. It was testified that Mendel's principles of heredity are now generally accepted and have been definitely proved to apply to mink. Plaintiff's expert witness stated that, in spite of the Mendelian law, it was possible that, in a particular case, no Sapphires at all would result, or that there would be double the number called for by Mendel's law. Plaintiff produced other testimony tending to show the fair market value of mink which would have been produced, as compared to the market value of those actually produced. Defendant submitted testimony as to the failure of certain female mink to mate with particular males and as to the possibility of loss of the kittens after birth. Both parties submitted testimony as to sterility in male mink. Plaintiff had a sixth dihybrid male which was not involved in the accident. This male was mated only once during the 1948 season, due to the fact that it was suffering from a bone boil. This mating was to a dihybrid female, and resulted in four kittens, none of them Sapphires. Plaintiff testified that after the accident he attempted to purchase dihybrid males and, in November, was offered two by a breeder at Portland, Oregon. Plaintiff testified that he was then pelting and could not go to Portland until about December 10th. By that time the two dihybrid males, which had been offered to him for $500 each, had been sold elsewhere at the same price.

The jury rendered a verdict for $8,125.25. Motions for judgment for defendant notwithstanding the verdict of the jury, and in the alternative for a new trial, were denied. On consent of plaintiff, however, the verdict was reduced $125.25, because no evidence as to the damage to the pens had been introduced. Judgment was entered for $8,000. Defendant has appealed.

Most of the assignments of error relate to the reception of evidence regarding the loss of mink progeny during the 1948 breeding season; the giving of instructions under which the jury was permitted to consider this element of damage; and the refusal to give instructions which would have precluded the jury from considering such element of damage. Appellant contends, under these assignments, that the reception of this evidence and the giving of instructions which permitted the jury to consider such evidence, opened the way for the allowance of double damages. Appellant also contends that the evidence should have been excluded because of its speculative and conjectural character.

The measure of damages for the loss or destruction of personal property is ordinarily its market value, if it has a market value. 15 Am.Jur. 530, Damages, § 122; 25 C.J.S., Damages, § 88, page 627. This measure of damages applies in the case of loss or destruction of animals. Taylor v. Spokane Falls & Northern R. Co., 32 Wash. 450, 73 P. 499; 3 C.J.S., Animals, § 234, page 1345. In determining the market value of animals, the particular qualities and capabilities of the animal may be taken into consideration. Taylor v. Spokane Falls & Northern R. Co., supra; Union Traction Co. v. Anderson, 146 Tenn. 476, 242 S.W. 876, 25 A.L.R. 1496. Where an article has no market value, then the measure of damages is its actual or extrinsic value, or, in some cases, its value to the owner. McCallister v. Sappingfield, 72 Or. 422, 144 P. 432; Higgins v. Belson, 66 Idaho 736, 168 P.2d 813; McCormick on Damages 170, § 45; 15 Am.Jur., supra; 25 C.J.S., supra.

The evidence introduced in this case, as summarized above, shows that dihybrid male mink have a definite market value, such value ranging from four to five hundred dollars. There is no question but that this market value takes into account, as it properly may, the special value of this particular kind of male mink for breeding purposes. This is demonstrated by the fact that dihybrid males, according to the testimony, are worth only about $20 each as pelts.

It follows that an allowance of this claimed market value compensates the owner for all use he would have make of the animals...