Crosby v. Spencer, A92A1912

• Decision Date: 24 February 1993
• Docket Number: No. A92A1912,A92A1912
• Citation: 428 S.E.2d 607,207 Ga.App. 487
• Parties: CROSBY et al. v. SPENCER.
• Court: Georgia Court of Appeals

Page 607

428 S.E.2d 607

207 Ga.App. 487

CROSBY et al. v. SPENCER.

No. A92A1912.

Court of Appeals of Georgia.

Feb. 24, 1993.

Young, Clyatt, Turner, Thagard & Hoffman, James B. Thagard, Valdosta, for appellants.

The Ellerbee Law Firm, O. Wayne Ellerbee, Valdosta, Clifton G. Spencer, Quitman, for appellee.

COOPER, Judge.

This appeal arises out of an action against appellants for damages resulting to appellee's peach orchard from the negligent spraying of appellants' adjacent cotton field. Following a jury verdict awarding appellee $93,007.45 in damages for future lost profits, appellants brought this appeal from the judgment entered on the verdict and from the denial of their motions for judgment n.o.v. and and new trial.

The trial transcript reveals that appellee and his stepfather operated a fruit and vegetable farm in Brooks County, Georgia. In 1983, they expanded their farming operation and leased an additional 44 acres of land on which they planted peaches. Appellee and his stepfather also planted peach trees on another part of the farm (hereinafter referred to as "the homeplace"). The homeplace and the 44-acre tract were farmed as one unit. The peach trees on the 44-acre tract were planted at the same time as those on the homeplace and were of the same size, type, quality and general health. Appellee testified that the soil on the 44 acres was of the same kind and quality as that on the homeplace and that the trees on the 44-acre tract received the same kind of care and treatment as those on the homeplace.

In 1988, appellants, who had been in the cotton farming business for many years, began farming cotton on a tract of land adjacent to appellee's 44-acre tract. In previous years, appellants had sprayed their cotton crops with the herbicide MSMA, and on or about June 30, 1988, appellants sprayed the cotton crops on the new tract with MSMA. Appellants utilized an over-the-top manner of application rather than a method where the MSMA was applied at ground level. Between June 20 and June 25, 1988, appellee inspected the trees on both the 44-acre tract and the homeplace and observed that the trees were in good condition. However, during another inspection approximately two months later, appellee observed massive defoliation of the peach trees on the 44-acre tract while the peach trees on the homeplace remained in good condition. In December 1989, after consulting with numerous agricultural experts, appellee was forced to destroy the trees on the 44-acre tract. Appellee continued to harvest peaches on the homeplace through 1991.

Appellee presented expert testimony that MSMA is deadly to peach trees; that MSMA particles are capable of drifting through the air; that an over-the-top application is more susceptible to drift than application at ground level; that the damage to appellee's peach trees was caused by something that drifted from the direction of appellants' cotton; and that the damage to appellee's peach trees was typical of damage caused by drifting MSMA.

1. In their first enumeration of error, appellants contend that appellee's evidence of future lost profits was insufficient. Appellants argue that appellee failed to present any evidence regarding the production of the peach trees on the 44-acre tract between 1983 and 1989, and thus failed to establish a "track record" from which anticipated lost profits could be projected. See Molly Pitcher Canning Co. v. Central, etc., R. Co., 149 Ga.App. 5, 10(4), 253 S.E.2d 392 (1979). During his testimony at trial, appellee explained that the average life of a peach tree is 12 years and that prior to 1988, he never had a full harvest of peaches because his peach trees were not fully grown. However, appellee was able to calculate the net profits he realized per tree on the homeplace for the years 1990 and 1991 and the projected per tree profits for the trees on the homeplace for the years 1992 and 1993. Appellee then applied the per tree calculations to the trees he lost on the 44-acre tract as a result of appellant's negligence and computed a net loss of $85,935.42 for the years 1990 and 1991 and a net loss of $69,090.35 for the years 1992 and 1993. "The rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted. [Cit.]" Ayers v. John B. Daniel Co., 35 Ga.App. 511, 512(1), 133 S.E. 878 (1926). Consequently, "[l]ost profits are recoverable as damages if such are shown with reasonable certainty. [Cits.]" DeVane v. Smith, 154 Ga.App. 442, 443(1), 268 S.E.2d 711 (1980). Appellee presented evidence regarding the similarities between the trees and soil conditions on the 44-acre tract and those on the homeplace. Appellee then gave extensive testimony regarding his computation of lost profits from the 44-acre tract based on his calculation of net profits realized from the peach trees on the homeplace subsequent to the destruction of the trees on the 44-acre tract. We conclude that appellee's evidence provided the jury with a reasonable and sufficient basis to determine appellee's lost profits with respect to the trees on the 44-acre tract.

2. Appellants allege that there was insufficient evidence to allow the jury to reduce its award to present value. Appellee presented evidence that his total damages for future lost profits was $155,025.78, but the jury's award was only for $93,007.45. The trial judge charged the jury that any award for future losses should be reduced to present cash value and gave the jury a formula to assist them in that calculation. Appellants did not object to the charge, and we will presume that the jury's verdict properly reduced the award to its present value. Union Camp Corp. v. Daley, 188 Ga.App. 756(6), 374 S.E.2d 329 (1988).

3. Appellants next argue that the trial court erred in admitting evidence regarding the homeplace orchard because the homeplace was a separate and distinct parcel of land from the 44-acre tract. " '[A]dmissibility of evidence is a matter which rests largely within the sound discretion of the trial court, and if an item of evidence has a tendency to help establish a fact in issue, that is sufficient to make it relevant and admissible. (Cit.) ...' [Cit.]" American Aluminum Prods. Co. v. Binswanger Glass Co., 194 Ga.App. 703, 709(9), 391 S.E.2d 688 (1990). In light of appellee's evidence regarding the similarity of the two parcels of land and their proximity to one another and his testimony that he considered the parcels as one unit, we find no abuse of...