Meyer v. Harvey Aluminum

• Decision Date: 09 October 1972
• Citation: 501 P.2d 795,263 Or. 487
• Parties: Wilson J. MEYER and Mary Ann Meyer, husband and wife, Respondents, v. HARVEY ALUMINUM (Incorporated), a California corporation, and Harvey Aluminum of Oregon, Inc., an Oregon corporation, Appellants.
• Court: Oregon Supreme Court

Page 795

501 P.2d 795

263 Or. 487

Wilson J. MEYER and Mary Ann Meyer, husband and wife, Respondents, v. HARVEY ALUMINUM (Incorporated), a California corporation, and Harvey Aluminum of Oregon, Inc., an Oregon

corporation, Appellants.

Supreme Court of Oregon.

Argued and Submitted Jan. 27, 1972.

Decided Oct. 9, 1972.

Fredric A. Yerke, and Douglas M. Ragen, Portland, argued the cause for appellants. With them on the briefs were Gibson, Dunn & Crutcher, Samuel O. Pruitt, Jr., Richard D. Hall, Los Angeles, Cal., and Miller, Anderson, Nash, Yerke & Wiener, Portland.

Arden E. Shenker and Lamar Tooze, Jr., Portland, argued the cause for respondents. With Mr. Tooze on the brief were Tooze, Powers, Kerr, Tooze & Peterson, Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, ^* HOWELL, BRYSON and LANGTRY, JJ.

DENECKE, Justice.

Plaintiffs obtained a judgment in the sum of approximately one-half million dollars for injuries to their fruit crops and trees caused by emissions from defendants' aluminum plant. Defendants appeal.

I Qualifications of Opinion Witness

Plaintiffs recovered damages for the excessive number of apricot culls, apparently, only for the year 1965. The only evidence that an excessive number of culls was caused by fluorides emitted from defendants' plant is the opinion testimony of plaintiff Wilson Meyer. Defendants objected to his testimony upon the ground that he was not qualified as an expert to give such opinion testimony of causation. The trial court admitted the testimony and defendants assign its ruling as error.

The evidence is not clear; however, the excessive number of culls apparently was caused by the apricots becoming 'freckled' after they were picked and delivered to the marketing organization. The witness simply stated that the 'freckling' was caused by the fluorides. He did not say how that came about or the basis for his opinion. The trial court permitted him to testify because 'he is the property owner and has farmed the thing.'

Upon cross-examination the witness admitted that on fluoride damage, 'I don't consider myself a real authority, no.' He stated, however: 'I do feel that I am an authority on whether it's frost and the other natural elements.'

The determination of a witness's qualifications as an expert is entrusted to the trial court's judgment; however, that judgment is not uncontrolled. We can review the evidence to decide whether the trial court's determination is supported by evidence. State by and through Highway Comm. v. Arnold, 218 Or. 43, 60, 341 P.2d 1089, 343 P.2d 1113 (1959).

As Wigmore states, 'The capacity (to testify) is In every case a relative one, i.e., relative To the topic about which the person is asked to make his statement.' 2 Wigmore, Evidence (3d ed), 634, § 555.

Ownership of real property alone is not sufficient. Merely holding title or possession of real property does not endow one with expertise on injury to such property caused by fluorides. Likewise, the farming of land does not necessarily impart knowledge of the effects of fluorides upon the land. Continued observations arising from farming and possession may be a source of expertise from which a competent opinion could be formulated. There is no evidence, however, that the witness had made any observations from his land ownership and farming which would lend credence to his opinion that fluorides caused the damage.

National Zinc Co. v. Crow, 187 Okl. 513, 103 P.2d 560 (1940), presented a similar problem. The plaintiff raised fine blooded horses. A zinc smelter commenced operation near plaintiff's farm. Plaintiff's colts became afflicted with a serious malady. The plaintiff testified that the malady was caused by the smelter smoke. The court held the plaintiff was not qualified to testify solely because he had raised the colts.

Bean v. Diamond Alkali Company, 93 Idaho 32, 454 P.2d 69 (1969), contains opinions supporting both the view that the farmer is qualified and that he is not qualified. Plaintiff brought an action contending that a chemical herbicide sold to him by the defendant caused damage to his onion crop. The plaintiff and other nearby farmers testified that upon the basis of their growing onions and being familiar with the diseases which afflict onions they were of the opinion that the damage was caused by the chemicals in the herbicide. The dissent stated that while the farmer witnesses had the experience to testify about damage which disease inflicts upon onions, they had no more knowledge of the effects of herbicides than did the jury; therefore, they were not qualified to testify.

In the instant case, according to the testimony, the effect of fluorides upon various crops is a perplexing subject. The witness did not recite any basis for his opinion except that it can be inferred that he reasoned that the freckling started after the plant began operation and, therefore, the defendants' plant was responsible. This, however, is insufficient to qualify him as an expert.

For these reasons the trial court erred in admitting Wilson Meyer's testimony. With this testimony excluded there is no evidence to support the award of damages for the excessive number of apricot culls and damages cannot be awarded for this claim.

II Evidence of Loss of Income

Defendants contend that the court erred in submitting some but not all of the claims for damages to apricots and peaches to the jury upon the ground that there was no competent evidence to support the claims. Defendants contend the only evidence of the amount of damages was the loss of gross income and there was no evidence of the net loss. The plaintiffs contend defendants did not object adequately so as to preserve this error for consideration on appeal. We are of the opinion that proper objections were made.

The parties are in agreement that the proper measure of damage is as set out in Cross v. Harris, 230 Or. 398, 406, 370 P.2d 703, 707 (1962):

'The measure of damages in a case of injury to growing crops is the difference between the value of the crop immediately before and immediately after the injury, to be ascertained by taking the value at maturity which the crop would have had but for the injury and deducting the value which the injured crop actually had at maturity and deducting, further, any reduction in amount and value of labor and expense attributable to the reduced yield. * * *.'

The crop damage arising from the loss of peach trees in 1962 is illustrative of the problem. Plaintiffs presented evidence that 483 peach trees had to be removed in 1962 because of fume damage. The plaintiff Mrs. Meyer was the principal witness on the computation of damages. She testified that in 1962 they had to remove 483 trees at a crop loss that year of $4,830. New trees will not yield for the first three years; so the loss of trees in 1962 meant the loss of a crop for three more years. Therefore, the loss for 1962 was multiplied by three for a loss of $14,490. In its special verdict the jury awarded plaintiffs as 'prospective peach profits to 1966,' $19,320, that is, $4,830 plus $14,490.

Mrs. Meyer testified she determined the crop loss for each year by multiplying $10 by the number of trees which had to be removed, 483 in 1962. She stated, 'We figured that at $10 a tree, figuring the crop loss for that year for that tree, $10 would be a very conservative estimate of the income producing ability of that tree, which would be about a hundred pounds at 10 cents a pound per tree.'

Plaintiffs contend this 10 cent figure was intended to state the net income from a pound of peaches with all expenses deducted. Viewed in the context of Mrs. Meyer's entire testimony, a jury could not reasonably find that the price of 10 cents per pound was the net income derived from the sale of peaches. She referred to that 10 cents per pound in testifying how she determined the amount of the loss caused by an excessive number of culls because of fume damage:

'A That is the excess cullage times the number 1 price we received that year (1962) from Stadelmans (a marketing organization), which are not exactly that, I couldn't say that, but what we felt was a number 1 price which was 10 cents a pound. We established that 10 cents a pound was a fair price for number 1 peaches.

'* * *

'Q * * * In 1962 did you know what the price for peaches was?

'A This, of course, was based upon my husband's experience in selling peaches previous to this.'

In other parts of her testimony it is evident that, when Mrs. Meyer referred to a price for fruit, she was referring to the price received from Stadelman, which was a gross income price with no expense deductions for harvesting the fruit. The same was true of her testimony on apricots.

There is no testimony whatsoever of plaintiffs' expenses incurred in raising and harvesting fruit. We do not know all of the kinds of expenses that must be incurred; however, we do know that picking alone is a substantial expense.

It was error to submit the items of damage specified in this assignment of error, numbered 7, to the jury and no damages can be awarded for these items. Douglas Const. Corp. v. Mazama Timber Products, 256 Or. 107, 471 P.2d 768 (1970).

III Evidence Concerning the Computation of Damages

A witness called by the plaintiffs testified he adjusted claims for many years for crop damage caused by emissions from an American Smelter and Refining Co. plant in Utah. The principal effluent emitted by this plant was sulfur dioxide. The principal damage was to alfalfa, with perhaps some to cherry and peach orchards. The witness was permitted to testify over objection that in adjusting claims he paid one and one-half times 'the actual loss.' The witness did not explain why he paid one and one-half times the loss. Plaintiffs' counsel argued that this was because of 'hidden damage' which the witness could not ascertain. The witness did not so testify.

We find the testimony clearly irrelevant and its...