Dobias v. Western Farmers Ass'n

Decision Date21 December 1971
Docket NumberNo. 347--41683--III,347--41683--III
Citation491 P.2d 1346,6 Wn.App. 194
Parties, 10 UCC Rep.Serv. 42 Joseph G. DOBIAS and Ann L. Dobias, husband and wife, and Charles E. Fisher and Betty L. Fisher, husband and wife, Respondents, v. WESTERN FARMERS ASSOCIATION, a Washington co-operative corporation, and Stauffer Chemical Company, Inc., A corporation, Appellants.
CourtWashington Court of Appeals

Rutherford, Kargianis & Austin, Don M. Gulliford, Seattle, and Palmer, Willis, McArdle & Meyer (Robert J. Willis), Yakima, for appellants.

Ries & Kenison, Darrell E. Ries, Moses Lake, for respondents.

EVANS, Judge.

This is an appeal from judgment for plaintiffs against defendants Western Farmers Association and Stauffer Chemical Company, Inc. in an action to recover damages for partial loss of a corn crop, and also an appeal by Western Farmers from dismissal of its cross-claim for indemnity against codefendant Stauffer Chemical Company.

Plaintiffs Dobias and Fisher are partners in a farming operation located near Moses Lake, Washington. In 1967 they farmed units 190, 191 and 123, irrigation block 42. The north boundary of unit 191 abutted the south boundary of unit 190 and a portion of the north boundary of unit 190 abutted the south portion of unit 123. Prior to planting in 1967 plaintiffs contracted with Umatilla Canning Company to grow 'Jubilee' sweet corn for processing and freezing. Forty acres were to be planted in unit 123, 58.6 acres in unit 190, and 17 acres in unit 191. In 1966 plaintiffs had experienced weed control problems on farm units 190 and 191. Prior to the 1967 planting, plaintiff Dobias consulted with a representative of Western Farmers concerning the use of a herbicide to control weeds. Their salesman advised the use of the herbicide Eptam, manufactured by codefendant Stauffer Chemical Company. In recommending the use of Eptam, Western Farmers' salesman relied on the label on the container and on statements made by Stauffer's representatives as to the effectiveness of the chemical in weed control and its compatibility with corn. Following the recommendation of Western Farmers' representative, plaintiffs purchased a quantity of Eptam, applied it to the soil on farm units 190 and 191 in a proper manner, but made no application to farm unit 123. As the corn on farm units 190 and 191 emerged, the plants were visibly stunted and twisted. Later, the corn on these units became infested with a parasitic disease known as common smut. The corn on the adjoining unit 123, which was of like variety, planted at approximately the same time, and to which no Eptam was applied, had no twisted or stunted plants, nor was it affected to any appreciable degree by common smut. As the corn on units 190 and 191 developed, the stunting and twisting worsened and the corn grew in a grotesque fashion. Umatilla Canning Company subsequently rejected plaintiffs' corn crop grown on units 190 and 191 because the high incidence of smut rendered it impossible to process. The harvest of sweet corn on unit 123 yielded 7.8 tons per acre and the plaintiffs received $25 per ton plus a patronage dividend of 14 per cent. The 58.6 acres of corn on unit 190 was sold for silage at $3,119, and the 17 acres on unit 191 was a total loss.

The trial court found that the 75.6 acres to which Eptam was applied, assuming a yield similar to unit 123, of 7.8 tons per acre, would have brought $14,742, plus the 14 per cent patronage dividend. Plaintiffs recouped $3,119 from the 75.6 acres, for a loss of $11,622 plus the patronage dividend. The court found that approximately 15 per cent damage was to be expected from the use of the herbicide, which nearly offsets the patronage dividend, and granted judgment against both defendants in the sum of $11,262.

Western Farmers' first assignment of error is directed to the refusal of the trial court to dismiss at the conclusion of plaintiffs' case, contending that plaintiffs' complaint is based upon alleged fraud which plaintiffs failed to prove. While the plaintiffs' complaint sounds in fraud in that it alleges a knowingly false representation upon which plaintiffs relied, the record discloses that all parties considered this an action based either on fraud, warranty or negligence. The complaint met the requirements of CR 8 of the Rules for Superior Court in that it contained a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for judgment for the relief to which he deems himself entitled. The trial court's judgment may be sustained on any theory of law established by the pleadings and supported by the proof. State ex rel. Weiks v. Tumwater, 66 Wash.2d 33, 400 P.2d 789 (1965); Lundberg v. Corporation of Catholic Archbishop of Seattle, 55 Wash.2d 77, 346 P.2d 164 (1959); See Kirkland v. Steen, 68 Wash.2d 804, 416 P.2d 80 (1966).

Both defendants assign error to the action of the trial court striking opinion portions of the deposition of Dr. Maloy, one of defendants' witnesses called as an expert in the field of plant diseases. The portion stricken primarily related to the nature and characteristics of the disease known as smut. An expert may state his opinion on a subject matter which is beyond the knowledge of the average layman, and within the realm of his expertise. 5 Meisenholder, Wash.Prac. § 351, p. 329 (1965). Dr. Maloy's credentials are impressive. However, by his own frank admission, his expertise did not extend to sweet corn. The qualification of an expert to give opinion testimony is a matter within the sound discretion of the trial court and its determination will not be disturbed unless that discretion is manifestly abused. Duchsherer v. Northern Pac. Ry., 4 Wash.App. 291, 481 P.2d 929 (1971). Since Dr. Maloy testified that he had never before considered the cause and effect of smut on sweet corn, the trial court did not abuse its discretion in striking the opinion portions of his deposition.

Both defendants next assign error to the italicized portions of the following findings of fact and the conclusions of law based thereon:


That on July 28, 1969, the parties (the plaintiffs and representatives of Stauffer Chemical Company, Inc.) examined the corn crop on Farm Units 190 and 191, and at that time it was agreed upon by all parties that the crop on said Units was strictly a salvage matter; That said condition of the corn crop was due to the unsuitability and unfitness of the chemical Eptam to be applied to said sweet corn crop and the damage resulting from the use thereof.


That after July 28, 1969, the corn in Farm Units 190 and 191 became infested with smut, while the corn on Farm Unit 123 showed little smut, But that the corn crop on Farm Units 190 and 191 was already lost prioe to the onset of the smut and that the corn was made more susceptible to smut by the weakened conditions of the plants on Farm Units 190 and 191, said weakening was caused by the Eptam.

Defendant Stauffer also assigns error to that portion of finding of fact 4, as follows:


. . . and that the representatives of Western Farms Association and of Stauffer Chemical Company, Inc. had no real or reliable knowledge of the suitability of Eptam for use on...

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    ...fair notice of any disclaimer or modification of a warranty and must freely agree to the seller's terms. (Dobias v. Western Farmers Ass'n (1971)6 Wash.App. 194, 491 P.2d 1346, 1350.) 'A unilateral nonwarranty cannot be tacked onto a contract containing a warranty.' (Klein v. Asgrow Seed Co.......
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