Dickerson Const. Co., Inc. v. Dozier

• Decision Date: 09 July 1979
• Docket Number: No. 79-4,No. 2,79-4,2
• Citation: 584 S.W.2d 36,266 Ark. 345
• Court: Arkansas Supreme Court
• Parties: DICKERSON CONSTRUCTION CO., INC., Appellant, v. John DOZIER, Appellee

Page 36

584 S.W.2d 36

266 Ark. 345

DICKERSON CONSTRUCTION CO., INC., Appellant, v. John DOZIER, Appellee.

No. 79-4.

Supreme Court of Arkansas, Division No. 2.

July 9, 1979.

N. M. Norton, Forrest City, for appellant.

Daggett, Daggett & VanDover, Marianna, for appellee.

FOGLEMAN, Justice.

During the performance of a contract for highway repairs, the appellant, Dickerson Construction Company, Inc., constructed an earthen dam or "haul road" across a drainage ditch adjoining the appellee's property. The purpose of this "haul road" was to allow the appellant's equipment to traverse the ditch. During the period from Friday afternoon, July 8, 1977, to Sunday afternoon, July 10, 1977, a substantial rainfall occurred and this road acted as a dam, causing water to back up in the ditch, ultimately resulting in the inundation of approximately 190 acres of the appellee's land in varying depths. The water began receding Sunday afternoon, after the dam was cut, and receded totally sometime thereafter. There was a soybean crop on the flooded land. It had been planted approximately June 1, 1977 and had reached a state of growth described as "knee-high."

The appellee, John Dozier, filed suit against the appellant and sought to establish that the yield of his soybean crop had been significantly reduced by the flooding of the 190 acres, caused by the negligence of the appellant. The appellant's motion for a directed verdict at the conclusion of all the evidence was denied and the jury returned a verdict for the appellee in the amount of $11,500.00. The appellant's subsequent motions for a mistrial and for a new trial were denied and this appeal followed.

The appellant alleges the following two points for reversal:

I

THE JURY WAS IMPROPERLY INSTRUCTED AS TO THE MEASURE OF DAMAGES, AND APPELLANT'S MOTION FOR DIRECTED VERDICT SHOULD HAVE BEEN GRANTED BECAUSE OF FAILURE OF PLAINTIFF TO OFFER EVIDENCE ON WHICH THE PROPER MEASURE MIGHT BE BASED.

II

THERE WAS MISCONDUCT OF THE JURY, IN THAT IN THE COURSE OF ITS DELIBERATIONS THE JURY MADE USE OF A POSTER, OR PLACARD, NOT ADMITTED IN EVIDENCE, PREPARED BY APPELLEE AND SETTING OUT APPELLEE'S THEORY OF DAMAGES.

The second point has merit and requires that the case be reversed and remanded for a new trial.

I

Although not necessary for our disposition of this case, the issue of the measure of damages must be discussed, because the same question will almost certainly arise on retrial. Even though we are reversing the judgment on another point, we will treat them in the order they were stated, because the background pertains to both points. Appellee maintained records of the 1977 production of his farm and from those records sought to establish an average reduction in the bushels per acre production of the 190 acres which had been affected. One of these average reductions was based on a comparison to the production on the remainder of the farm as a whole, while the second was based on a comparison to the production achieved on a 55 acre bottomland field, which the appellee testified was more fertile than hillside land and was the type of land most comparable to that flooded. By multiplying that result times the net price per bushel of soybeans (stipulated price of $5.50, less the $.10 per bushel hauling fee), the appellee arrived at the monetary damages allegedly suffered. Use of the 55 acre comparison resulted in damages of $15,708.06, while use of the other figure resulted in damages of $9,695.70. These computations were placed on charts by the appellee's attorneys, with the higher figure on chart 1 and the lower on chart 2. Although neither was introduced into evidence, chart 1 was used during direct examination of the appellee and during closing argument by the appellee's attorney.

At the close of all the evidence, the appellant moved for a directed verdict, alleging that the proper measure of damages was the rental value of the land that was affected and that, since there had been no evidence of such rental value, there was no basis for a recovery by the appellee. This motion was denied.

The appellant objected to the court's instruction on the measure of damages, contending that rental value of the land was the only proper measure of damages. The instruction read as follows:

If you find for John Dozier on the question of liability against Dickerson Construction Company, you must then fix the amount of money which will reasonably and fairly compensate him for the following elements of damages sustained by him, if proximately caused by the negligence of the said Dickerson Construction Company. The difference in the fair market value between the crop that the land would otherwise have produced and the crop that was actually produced, less the difference between what it would have cost to have produced, harvested and marketed an undamaged crop and what it would cost to produce, harvest and market the actual crop. Whether these elements of damages have been proved by the evidence is for you to determine.

The appellant contends that the appellee's soybeans had not reached a sufficient stage of growth to have a value and that in the absence of such proof, the correct measure of damages would be the rental value of the property, citing Adams v. Adams, 228 Ark. 741, 310 S.W.2d 813. The appellant places a great deal of reliance on the following testimony of J. O. Hill, the County Agent of Lee County, who had observed the acreage in question from the air on July 11, and who had made an inspection of the area on October 28, prior to harvesting:

Q. What is the earliest date that beans are planted in Lee County, Mr. Hill?

A. The earliest planting is the last week in April.

Q. If you assume that the field was planted that early, would the crops have any market as of July 11th of the same year? Assuming its very earliest date.

A. The only thing I can think of is as far as use is concerned is you could cut it for hay, but no beans at this point.

Q. Even if you were to assume that it had maximum maturity, having been planted in the earliest period of time, April? It would have no market value on the date of this occurrence?

A. Not as beans. By the same token it is too late to plant another crop.

We feel that the appellant's reliance on Adams v. Adams, supra, is misplaced because there was No evidence presented in that case that the crops involved had reached a stage of maturity sufficient either to have a market value or allow a reasonably certain estimate of the projected production. In light of testimony elicited from Mr. Hill during questioning by the appellee's attorney, we find this case to be distinguishable from Adams.

Q. . . . . but you have got your crop now in the middle of July and are you then in your opinion in a position to say well you have got a pretty good reasonable guess as to the production on it?

A. Well, you would know whether or not you had a stand. You would know whether or not you had good weed control going for you and also you would know whether your beans were up to normal size or what would be expected at this time, with a knee high type of a bean, and whether they were drought stressed and looking poor or whether you had a promising looking crop.

Q. In other words you have probably reached a stage where you could make a pretty good guess at it?

A. I think it would be within reason to state, you could say that things were either deteriorating and falling apart or you had something pretty good coming on.

Q. Now, what I am trying to say is that this is based upon your experience, your judgment, exercising your judgment. Can you not and can not most any competent farmer in the middle of July reasonably estimate his production? I understand that things are going to vary and happen and so forth, but over a long period of time, based upon your experience you get a pretty good idea about what your production is going to be, don't you?

A. I think you are right.

In Faires v. Dupree, 210 Ark. 797, 197 S.W.2d 735, although we found that the plaintiff was not entitled to an award for damages to crops because there was just a vague suggestion that financial loss had occurred and there was no evidence presented that the crop had even been planted, we said:

* * * A rule is that where crops are so immature when destroyed as to have no market value, the measure of the damage is that for which the land would have rented. St. Louis, I. M. & R. S. R. Co. v. Saunders, 85 Ark. 111, 107 S.W. 194; Brown v. Arkebauer, 182 Ark. 354, 31 S.W.2d 530; but if the crop has grown to a point where it can be said with reasonable certainty that a stated production would result, then damage is the value of such crop. Crumbley v. Guthrie, 207 Ark. 875, 183 S.W.2d 47.

Although the testimony of Mr. Hill could be considered equivocal, we cannot say that there was no substantial evidence that the beans had reached a state where a reasonable estimate could be made of the expected production. A close parallel can be drawn between the facts in this case and those present in Crumbley v. Guthrie, 207 Ark. 875, 183 S.W.2d 47, cited in Faires v. Dupree, supra. In that case, cattle owned by the defendant had been permitted to run at large in the plaintiff's strawberry patch, resulting in a drastic decrease in expected yield. The damage to the strawberries occurred before the fruit had matured. We affirmed the award of damages, stating that "there is proof that sufficient progress had been made to promise a production much greater than that realized had the trespass not occurred," relying on testimony from appraisers that from the appearance of the plants they were able to make a fairly accurate estimate of what the actual loss had been.

The actual value of a crop at the time of its destruction is to be ascertained from consideration of the circumstances existing at the time of its destruction, as well as at any time before trial, favoring or rendering doubtful the conclusion that it...