Eichenberger v. Wilhelm

• Decision Date: 23 June 1976
• Docket Number: No. 9201,9201
• Citation: 244 N.W.2d 691
• Parties: 20 UCC Rep.Serv. 63 Jerry EICHENBERGER, Plaintiff and Appellee, v. Jack WILHELM, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 691

244 N.W.2d 691

20 UCC Rep.Serv. 63

Jerry EICHENBERGER, Plaintiff and Appellee, v. Jack WILHELM, Defendant and Appellant.

Civ. No. 9201.

Supreme Court of North Dakota.

June 23, 1976.

Rehearing Denied Aug. 24, 1976.

Syllabus by the Court

1. The purposes of requiring findings of fact include affording the appellate court a clear understanding of the basis of the trial court's decision, making certain for purposes of estoppel and res judicata precisely what has been determined, and encouraging the trial judge to be careful in ascertaining the facts. Rule 52(a), N.D.R.Civ.P.

2. Issue not raised in the pleadings but tried by the express or implied consent of the parties shall be treated as if they had been raised in the pleadings. The pleadings may be amended to conform to the evidence, but failure to so amend does not affect the result of the trial of those issues. Rule 15(b), N.D.R.Civ.P.

3. To recover on the basis of implied warranty of merchantability, the plaintiff must establish that the defendant is a merchant as to the goods involved in a sale, that the goods were defective when they left control of the defendant, and that the defect was the efficient cause of the damage or injury. It must also appear that the warranty was not modified or excluded by the parties. Sections 41--02--04, 41--02--31, 41--02--33, N.D.C.C.

4. The measure of damages for injury to or partial destruction of a growing crop is the difference between the value of the crop immediately before and its value immediately after the injury or partial destruction. The most generally approved method of ascertaining damages for such crop injuries is to take the value at maturity which the probable crop would have had but for the injury, deduct the value which the injured crop actually had at maturity, and deduct further any reduction in amount and value of labor and expense attributable to the reduced yield.

5. The purpose of compensatory damages is to place the injured party in the position he would have occupied had the injury not occurred. Section 41--01--06, N.D.C.C. It is thus appropriate for a trial court to assume that the application of an herbicide to a growing crop will be reasonably successful where the evidence establishes proper conditions for the application, and damage to the crop occurs as a result of a defect in the herbicide.

6. For reasons stated in the opinion, the judgment of the trial court, including assessment of damages, is affirmed.

Wheeler, Wolf, Wefald & Peterson, Bismarck, for defendant and appellant; argued by Albert A. Wolf, Bismarck.

Richard P. Rausch, Bismarck, for plaintiff and appellee; argued by Mr. Rausch.

ERICKSTAD, Chief Justice.

Plaintiff Jerry Eichenberger seeded a 97 acre field with spring wheat in May 1974. He had prepared the seed bed with a field cultivator that spring after harvesting wheat from the same field the previous fall. He had seeded eight to ten acres of the field when rain intervened; he completed the field apparently within four days.

On May 25, 1974, Eichenberger telephoned Jack Wilhelm who operates a ground and aerial spraying service. Eichenberger related that his field was heavily infested with wild oats and asked Wilhelm if he could spray the field. After Wilhelm indicated that he would be available, Eichenberger registered a concern that the only post-emergence herbicide available (Carbyne) would damage wheat which had emerged more than 14 days before the chemical application. Wilhelm declared that he had heard similar rumors but that he had encountered no such difficulties himself, and he suggested that Eichenberger call Ed Ferderer, a farmer who reportedly had sprayed Carbyne after the 14-day emergence period.

Ferderer declared that he had never had any problem because of late spraying, and Eichenberger called Wilhelm back, saying 'Let's spray.'

Eichenberger has been engaged in farming operations for several years. Wilhelm formerly worked in the control tower at the Bismarck airport and has been commercially engaged in ground and aerial spraying for 25 years. The two had contracted for spraying crops in previous years and also agreed that Wilhelm spray Eichenberger's crops for broadleaf weed control in 1974, which operation was accomplished sometime after the Carbyne application.

In a transcript replete with inconsistent and contradictory testimony, one series of events appears undisputed: Wilhelm sprayed the 97 acres on May 27, 1974, after retooling his aerial spraying system for application of Carbyne, and within the next few days, the wheat became discolored and limp. The field yielded an average of six bushels per acre, while Eichenberger's other fields averaged 16 bushels per acre. The evidence also established that control of the chemical and of its application rested solely with Wilhelm.

According to the testimony of a representative from Gulf Oil Company, which markets Carbyne, the chemical is a growth retardant material used to control wild oats. The chemical does not kill the wild oats plants but impedes the translocation of other material, including moisture and nutrients, through the plant. This retarding capability of Carbyne allows the crop to overtake the wild oats and ultimately reduces the relative demand of the wild oats on soil moisture and nutrients, which become available to the growing crop.

On its Carbyne labels and in its promotional literature, Gulf recommends applying not less than one-half nor more than one and one-half quarts of the chemical per acre in a mixture of five gallons of water. The primary factor used to determine when to apply the Carbyne is the leaf stage of the wild oats plant, subject to the admonition that the crop should not have emerged more than 14 days previous to the application. The former relates to susceptibility of the wild oat plant and the latter relates to potential damage to the crop plant. Chances of damage to the crop 'become extremely high' after 14 days. Under normal conditions the effect of Carbyne on wheat is that of delaying maturity, not reducing yield.

Wilhelm's issues on appeal may be grouped into two categories, the first relating to certain aspects of civil practice and the second relating to determination of damages.

The gravamen of Eichenberger's action is found in #4 of his complaint, wherein he alleges

'that defendant carelessly, negligently and wrongfully applied a chemical upon the crop and lands leased by plaintiff and to such an extent that the plaintiff sustained damage in the sum of Four thousand Dollars ($4000.00) and by reason of crop loss occasioned by the application so made.'

Wilhelm sought more specific information through pretrial discovery and during the trial. By interrogatory, he inquired of and received a response from Eichenberger as follows:

'8. INDICATE SPECIFICALLY THE ACTS OF THE DEFENDANT WHICH YOU DEEM WERE ACCOMPLISHED NEGLIGENTLY, CARELESSLY OR UNLAWFULLY AS ALLEGED IN YOUR COMPLAINT AND INDICATE WHAT CRITERIA, RULE OR REGULATION OR LAW WAS VIOLATED IN CONNECTION WITH SUCH ACTS.

'This is a civil action for damages. Plaintiff sustained damage as a result of the negligence of defendant and the same constituted a breach of contract. It is clear that defendant carelessly applied a chemical which caused the damage and any other response would be argumentative.'

During the trial, counsel for Wilhelm again asked for greater specificity:

'MR. WOLF: I am asking for acts of the Defendant which constitute negligence, carelessness, or unlawful acts.

'THE COURT: I think you have covered it in your testimony but what do you think caused the damage? That's what they're asking you.

'THE WITNESS: I would say that possibly it could have been an overdose because of Mr. Wilhelm's statement, 'I think I should have only put it on half strength.'

'BY MR. WOLF:

'Q. Is that your only act or fact that you claim to be the basis for this lawsuit that he may have put an overdose in?

'A. In my mind, and I have discussed this with Jack, perhaps some nozzles were plugged and some nozzles gave out more liquid than others.

'Q. This is your assumption that this may have happened?

'A. Either one or the other I think could have happened.

'Q. Are you excluding in you determination as to the cause of the damage, if any, to this crop the fact that the crop was sprayed later than it should have been sprayed?

'A. I don't feel that that crop was sprayed later than it should have been sprayed.

'Q. So you are saying that you are excluding that as a fact or as an act or cause that would contribute to any damage, is that correct?

'THE COURT: Are you qualified to give that answer?

'THE WITNESS: I don't think so.

'THE COURT: By all the testimony that's preceded this, I don't believe he is qualified to answer that question either, Mr. Wolf, and the Court is going to overrule the question. He has indicated the only information he has on that point he received from either your client or a Mr. Ferderer that he called.'

In his opinion from the bench, the trial judge made the following observations:

'The testimony . . . leaves little doubt in the Court's mind that the damage caused to this field was caused by the application of the Carbyne. * * *

'Mr. Wilhelm's testimony . . . (and) the label of the Carbyne would seen to indicate that the majority of the crop was at the stage where it could have been sprayed. * * * (T)hrough the use of his expertise, it's my belief that Mr. Wilhelm decided that he could spray.

'* * * (I)n this Court's opinion, as a distributor he (Mr. Wilhelm) is responsible for it (the spray) as a user or a person in the business. It seems to the Court that the composition of the spray is highly suspect in this case, but nonetheless, I think that Mr. Wilhelm, under the circumstances, has to bear the responsibility. Accordingly, I'd find liability.'

Wilhelm's counsel pursued the matter further:

'MR. WOLF: * * * (I)s the Court finding that there is a warranty here?

'THE COURT: Yes. ...