Patino v. Grigg and Anderson Farms

• Citation: 97 Idaho 251,542 P.2d 1170
• Decision Date: 28 November 1975
• Docket Number: No. 11814,11814
• Parties: Adam PATION, by and through his Conservator, Ed Richardson, Plaintiff-Respondent, v. GRIGG & ANDERSON FARMS, a Co-Partnership, et al., Defendants-Appellants.
• Court: United States State Supreme Court of Idaho

Page 1170

542 P.2d 1170

97 Idaho 251

Adam PATION, by and through his Conservator, Ed Richardson, Plaintiff-Respondent, v. GRIGG & ANDERSON FARMS, a Co-Partnership, et al., Defendants-Appellants.

No. 11814.

Supreme Court of Idaho.

Nov. 28, 1975.

Jeremiah A. Quane of Quane, Kennedy & Smith, Boise, for defendants-appellants.

Donald J. Chisholm of Goodman, Duff & Chisholm, Rupert, Dean Kloepfer, Burley, for plaintiff-respondent.

DONALDSON, Justice.

Plaintiff-Respondent Adam Patino, through his conservator Ed Richardson, filed this action in Fifth Judicial District Court on April 26, 1974. In his complaint Patino claimed damages for injuries received when he was run over by a potato harvester operated by defendant-appellant Rex Martin. At the time of the accident both Martin and Patino were employed by defendant-appellant Grigg & Anderson Farms, a partnership, and were working on its farm near Rupert. J. D. Biggs, named as a defendant in the complaint but later dismissed, supervised operations for the partnership at their 2,600 acre Rupert farm, having some forty-one employees under his direction. In his suit plaintiff alleged negligence on the part of Grigg & Anderson Farms and its other named employees.

Trial was had before a jury which returned a special verdict for plaintiff on December, 18, 1974, finding plaintiff's damages to be $210,000 and apportioning the negligence as follows: Grigg & Anderson Farms, 75%; Rex Martin, 20%; plaintiff, 5%. The jury also found that plaintiff did not assume the risk of his injuries and was not a fellow servant of Rex Martin. Defendants appeal from the judgment rendered for plaintiff in the amount of $199,500 together with his costs. They contend on appeal that the trial court's instructions allowed the jury to improperly assess damages; that an instruction concerning certain testimony by plaintiff was not supported by the evidence and the testimony was not admissible at trial; that the special verdict form was improper and prejudicial; and that the finding of negligence against Grigg & Anderson Farms was not supported by the evidence.

The following facts are adduced from the record on appeal:

Respondent Patino is a Mexican National who was in the United States illegally at the time of the accident. He was hired by J. D. Biggs on October 1, 1973 to assist Grigg & Anderson Farms with the potato harvest.

The potatoes were harvested with mechanical potato combines pulled and powered by tractors. The combines dug the potatoes and were equipped with a conveyer belt which dumped them into a truck which would follow along beside the combines. This was Patino's first work with mechanized harvesting equipment. Biggs, who knew only a few Spanish phrases, explained Patino's job to him. Patino neither spoke nor understood English. Patino was to stand on a platform on the combine and pick clods, rocks and other debris from the conveyor belt as it transferred potatoes to the truck. There were two platforms on each combine and it was customary to have two 'clodpickers' working at one time.

The day of the accident, October 10, 1973, the combine that Patino normally worked on broke down. Patino was transferred to the combine operated by defendant Rex Martin where he joined the two regular 'clodpickers' on the platforms. Patino worked on the platform until Martin stopped the tractor and harvester to allow the truck driver time to place side boards on his truck. During this hiatus Patino and a fellow worker dismounted and began to pull clods and vines from the bottom of the machine where they occasionally became entangled.

When the truck driver was ready to proceed Martin engaged the power take-off on the harvester. There were a few moments before the tractor began to move and both workers started to climb back up to the platforms on the short ladders provided on the sides of the machine. Patino, however, slipped on his ladder and fell in front of the right wheel of the combine. Although Martin testified he looked back to see if the workers were in place, he started forward and the wheel ran up on Patino's leg and back. There was evidence of serious permanent damage to Patino, includidng brain damage, as well as substantial medical expenses.

At the conclusion of the testimony the trial court instructed the jury concerning United States mortality statistics, immigration laws and minimum wages and allowed the jury to consider them when assessing damages. ¹ The appellants maintain these instructions allowed the jury to speculate that plaintiff would remain in the United States and to reward him for his illegal entry into this country. Appelants would have us substitute an instruction gauging plaintiff's damages in terms of income in his native country of Mexico. It is well settled that damages for loss of earnings or profits must be shown with reasonable certainty and that compensatory awards based upon speculation or conjecture will not be allowed. Rindlisbaker v. Wilson, 95 Idaho 752, 519 P.2d 421 (1974). In the present case the plaintiff-respondent suffered serious permanent injuries. The jury had many factors to evaluate when it assessed damages for those injuries. The factors listed in the instructions objected to by appellant were to be considered with all of the evidence. Among the evidence before the jury was the fact that the plaintiff remained in the United States at the time of trial and had held two farm related jobs before his accident, both of which paid more than the federal minimum wage for farm workers. There was no evidence of plaintiff's wages in Mexico.

We find that the instructions objected to were neither speculative nor conjectural. It is true, as respondent readily admits, that the trial court incorrectly stated the number of immigrants allowed into this country annually from Western Hemisphere countries. At the time of trial the quota for the number of immigrants was 120,000 rather than 500,000 as the trial court instructed. However, we find that this error was not prejudicial. There was ample evidence to support the award whatever plaintiff's future residence.

'This Court has frequently held, in effect, that even though certain elements of damages have been erroneously submitted to a jury and erroneous instructions thereon have been given to a jury, such errors will be held non-prejudicial where other evidence is abundant to justify the verdict without taking into consideration the erroneously admitted evidence and the erroneous instructions.' Archer v. Shields Lumber Co., 91 Idaho 861, 434 P.2d 79 (1967).

Nor did these instructions reward plaintiff for illegality, as appellants suggest, but rather seek to compensate him for his injury. Inasmuch as appellants readily accepted the benefits of plaintiff's labor it is somewhat anomalous to say the least for them to complain now that such benefit was illegally bestowed.

Appellant's next assignments of error concern certain testimony of plaintiff. During trial defendants objected to the testimony of plaintiff that one 'Jesus' instructed to him to remove weeds and clods from all parts of the machinery. According to plaintiff, 'Jesus' was an employee of Grigg & Anderson Farms. The trial court admitted this testimony for the limited purpose of showing plaintiff's state of mind as he approached his job.

Appellants contend that the trial court erred when it allowed plaintiff to testify concerning the instructions of his fellow employee 'Jesus.' They assert such testimony was hearsay. We disagree. The testimony was admitted not for the truth of the statement allegedly made by 'Jesus' but rather to show the plaintiff's own state of mind as he approached his job. As such the testimony was admissible. Bell, Handbook of Evidence for the Idaho Lawyer, Second Edition, p. 128 (1972); Martin v. Argonaut Insurance Co., 91 Idaho 885, 434 P.2d 103 (1967).

A more difficult question was raised, however, when the cause was submitted to the jury. The trial court allowed the jury to consider the question of whether 'Jesus' was an employee of defendant Grigg & Anderson Farms. If so, the court instructed, 'then the instructions by 'Jesus' to the Plaintiff are to be considered the instructions of the Defendant.' ²

The trial court properly instructed the jury that an agency relationship cannot be proved by the acts or declarations of the agent or a third person. Killiger v. Iest, 91 Idaho 571, 428 P.2d 490 (1967). The appellants argue, however, that the court erred in giving this instruction at all since there was no independent evidence that 'Jesus' was indeed an employee. They cite Nordquist v. W. A. Simons Co., 54 Idaho 21, 28 P.2d 207 (1933) for the proposition that it is error for a trial court to instruct the jury on principles of law on which no evidence was introduced at trial.

The record does not clearly resolve the issue. The evidence is confused at times by the fact that plaintiff was talking about more than one 'Jesus.' Plaintiff's initial testimony concerned one 'Jesus,' a tractor driver. At other times plaintiff testified that a compatriot, identified in the record as 'Jesus Reese', worked with him at Grigg & Anderson Farms. J D. Biggs, defendant's manager, confirmed that one 'Jesus Ruis' worked with Patino as a 'clodpicker' at Grigg & Anderson Farms. We cannot ignore the fact that plaintiff often became confused during the lengthy trial, at times apparently because of his injuries and at other times due to the difficulties of testifying through an interpreter. Under the circumstances of this case we...