Pribil v. Koinzan

• Decision Date: 03 July 2003
• Docket Number: No. S-01-251.,S-01-251.
• Citation: 665 N.W.2d 567,266 Neb. 222
• Parties: Lawrence PRIBIL, Appellant, v. Barton and Sandra KOINZAN, husband and wife, et al., Appellees.
• Court: Nebraska Supreme Court

665 N.W.2d 567

266 Neb. 222

Lawrence PRIBIL, Appellant, v. Barton and Sandra KOINZAN, husband and wife, et al., Appellees.

No. S-01-251.

Supreme Court of Nebraska.

July 3, 2003.

George H. Moyer, Jr., of Moyer, Moyer, Egley, Fullner & Warnemunde, Madison, for appellant.

David J. Partsch and Thomas H. DeLay, of Jewell, Collins, DeLay & Gray, Norfolk, for appellees Barton and Sandra Koinzan.

Kathleen Koenig Rockey, of Copple & Rockey, P.C., Norfolk, for appellees Terry Held and Genevieve Shaw.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

BACKGROUND

Lawrence Pribil sued Barton and Sandra Koinzan, Terry Held, and Genevieve Shaw (collectively the defendants) for damages that the Koinzans' cattle inflicted on Pribil's mature corn and soybean crops on several quarter sections of irrigated land. The Koinzans' cattle escaped from Shaw's land and went onto Pribil's neighboring fields. A summary judgment on the issue of liability was granted, and liability is not disputed in this appeal. In Pribil's operative petition, he sought $164,079.42 in damages, but the jury returned a verdict for $34,920.60. Pribil appealed, and the Nebraska Court of Appeals affirmed the judgment of the district court. See Pribil v. Koinzan, 11 Neb.App. 199, 647 N.W.2d 110 (2002). Pribil petitioned for further review, which we granted.

ASSIGNMENT OF ERROR

Pribil's three assignments of error on further review combine to advance one claim: The Court of Appeals erred in its analysis of the district court's jury instruction No. 8C, which dealt with damages.

STANDARD OF REVIEW

Whether a jury instruction given by a trial court is correct is a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Jay v. Moog Automotive, 264 Neb. 875, 652 N.W.2d 872 (2002).

ANALYSIS

The factual details of the case are set forth in the opinion of the Court of Appeals, and most of the facts need not be repeated here, except those that give context to the issue on further review. Pribil is a 70-year-old farmer with many years' experience growing corn and soybeans on irrigated land southwest of O'Neill, Nebraska. The land is irrigated by centerpivot irrigation systems. These systems work by pivoting a suspended pipe with sprinklers on it around the center of a quarter section, which is usually 160 acres. Thus, each system irrigates only about 130 acres of each quarter section. The irrigated portion of each quarter section is commonly called a circle. In 1996, Pribil raised corn and soybeans on 13 circles. The cattle trespassed upon only five circles that were adjacent to Shaw's land and to each other. It is undisputed that between September 23 or 25 and the end of October, cattle for which the defendants were legally responsible escaped and got into and damaged or destroyed the corn and soybeans on these five circles.

Pribil computed his lost yield to be 26,311 bushels of corn and 2,153 bushels of soybeans on the five circles. Although there was testimony that some of the corn had been damaged and replanted in May 1996, prior to the damage inflicted by the Koinzans' cattle, the evidence indicated that the replanted corn had "caught up" with the remaining corn by September 25 and was fully mature at that time. Pribil testified that the beans were ready to harvest and that he had stopped watering the corn and was waiting for it to dry prior to harvest. In short, the record establishes beyond reasonable dispute that the corn and beans were mature crops by the time they were damaged by the Koinzans' cattle.

The sole issue presented by Pribil's petition for further review concerns the instructions given to the jury with respect to the measure of damages and Pribil's burden of proof. Jury instruction No. 8C, given over objection, provided that "[t]he evidence must establish the amount of any item of damage with reasonable certainty or that item of damage cannot be recovered." Pribil argues that this instruction is in conflict with the standard jury instruction regarding damages, instantiated in this case by instruction No. 6A(3), which provides that "[b]efore [Pribil] can recover against the defendants on [Pribil's] claim, [Pribil] must prove, by the greater weight of the evidence, the nature and extent of the damage to the corn and soybean crops." See NJI2d Civ. 2.12A. Pribil contends, in essence, that "reasonable certainty" is a different burden of proof for plaintiffs' damages than "the greater weight of the evidence."

The Court of Appeals rejected Pribil's argument. The Court of Appeals stated:

We believe that Worth v. Schillereff, 233 Neb. 628, 447 N.W.2d 480 (1989), is the case which controls the issue presented by instruction No. 8C. Worth was a suit for personal injuries sustained in an automobile accident. The plaintiff sought special and general damages, including future damages.... The court instructed the jury that future damages must be "`reasonably certain.'" Id. at 630, 447 N.W.2d at 482. The plaintiff appealed, arguing that the trial court erred in so instructing the jury "`when the standard which has been recognized in this state since 1981 is "reasonably probable".'" Id. at 630, 447 N.W.2d at 483. The plaintiff in Worth argued essentially the same point as Pribil argues in this case.

In addition, in holding that an instruction almost identical to the one given by the trial court in this case in instruction No. 8C was not error, the Worth court stated: "This court has said that `reasonable certainty' and `reasonable probability' are one and the same thing." 233 Neb. at 633,447 N.W.2d at 484, citing Lane v. State Farm Mut. Automobile Ins. Co., 209 Neb. 396, 308 N.W.2d 503 (1981). With this statement and holding by the Nebraska Supreme Court, we conclude there is nothing further to discuss. We believe the Worth court clearly held that "reasonable certainty" and "reasonable probability" mean the same thing and that it is not error for a trial court to instruct that damages must be proved by the plaintiff with reasonable certainty, notwithstanding that the plaintiff's burden of proof is by the greater weight of evidence.

Pribil v. Koinzan, 11 Neb.App. 199, 213-14, 647 N.W.2d 110, 121 (2002).

Pribil argues that the Court of Appeals missed the point and that Worth v. Schillereff, 233 Neb. 628, 447 N.W.2d 480 (1989), is distinguishable because it dealt with prospective damages. See, e.g., NJI2d Civ. 4.01. Pribil's contention is that instructing the jury that damages must be proved with "reasonable certainty" is proper only when the damages at issue are future or contingent damages and the issue is whether or not certain contingencies are likely to come to pass in the future. Pribil argues that there are no future contingencies to consider once a crop is mature; the measure of damages for the destruction of a mature crop is the difference between the value of the crop if there had been no injury and the value of the actual crop harvested. Pribil contends that under these circumstances, "the greater weight of the evidence" is the only burden of proof on which the jury should be instructed.

In reviewing a claim of prejudice from instructions given or refused, an appellate court must read the instructions together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error. See Nauenburg v. Lewis, 265 Neb. 89, 655 N.W.2d 19 (2003). We conclude that instruction No. 8C was not a correct statement of the law, given the evidence that Pribil's crops were mature at the time of the damage or destruction, and that the judgments of the Court of Appeals and the district court must be reversed.

We have often stated that a plaintiff's evidence of damages may not be speculative or conjectural and must provide a reasonably certain basis for calculating damages. The general rule is that uncertainty as to the fact of whether damages were sustained at all is fatal to recovery, but uncertainty as to the amount is not if the evidence furnishes a reasonably certain factual basis for computation of the probable loss. Sack Bros. v. Tri-Valley Co-op., 260 Neb. 312, 616 N.W.2d 786 (2000). A plaintiff's burden of offering evidence sufficient to prove damages cannot be sustained by evidence which is speculative and conjectural, but proof of damages to a mathematical certainty is not required; the proof is sufficient if the evidence is such as to allow the trier of fact to estimate actual damages with a reasonable degree of certainty and exactness. See III Lounge, Inc. v. Gaines, 227 Neb. 585, 419 N.W.2d 143 (1988).

We have consistently framed the question whether the evidence of damages is "reasonably certain" as a question of law, and not as a matter to be decided by the trier of fact. See, e.g., Sack Bros., supra; O'Connor v. Kaufman, 260 Neb. 219, 616 N.W.2d 301 (2000); Gagne v. Severa, 259 Neb. 884, 612 N.W.2d 500 (2000); Phipps v. Skyview Farms, 259 Neb. 492, 610 N.W.2d 723 (2000); Union Ins. Co. v. Land and Sky, Inc., 253 Neb. 184, 568 N.W.2d 908 (1997); World Radio Labs. v. Coopers & Lybrand, 251 Neb. 261, 557 N.W.2d 1 (1996); Evergreen Farms v. First Nat. Bank & Trust, 250 Neb. 860, 553 N.W.2d 728 (1996); McWhirt v. Heavey, 250 Neb. 536, 550 N.W.2d 327 (1996); Bristol v. Rasmussen, 249 Neb. 854, 547 N.W.2d 120 (1996); Lone Cedar Ranches v. Jandebeur, 246 Neb. 769, 523 N.W.2d 364 (1994); Bakody Homes & Dev. v. City of Omaha, 246 Neb. 1, 516 N.W.2d 244 (1994); Buell, Winter, Mousel & Assoc. v. Olmsted & Perry, 227 Neb. 770, 420 N.W.2d 280 (1988); III Lounge, Inc., supra; Shadow Isle, Inc. v. Granada Feeding Co., 226 Neb. 325, 411 N.W.2d 331 (1987); Sesostris Temple Golden Dunes v. Schuman, 226 Neb. 7, 409 N.W.2d 298 (1987); Lis v. Moser Well Drilling & Serv., 221 Neb. 349, 377...