Pribil v. Koinzan

• Decision Date: 11 June 2002
• Docket Number: No. A-01-251.,A-01-251.
• Citation: 647 N.W.2d 110,11 Neb. App. 199
• Parties: Lawrence PRIBIL, Appellant, v. Barton and Sandra KOINZAN, husband and wife, et al., Appellees.
• Court: Nebraska Court of Appeals

647 N.W.2d 110

11 Neb. App. 199

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

No. A-01-251.

Court of Appeals of Nebraska.

June 11, 2002.

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 Koinzans.

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

IRWIN, Chief Judge, and HANNON and INBODY, Judges.

HANNON, Judge.

INTRODUCTION

Lawrence Pribil sued Barton and Sandra Koinzan, Terry Held, and Genevieve Shaw (collectively the defendants) for damages that the Koinzans' cattle did to Pribil's mature corn and soybean crops on several quarters 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 only $34,920.60. Pribil alleges that the trial court erred in sustaining the defendants' objection to the admission of evidence of an alleged agreement made by a representative of the Koinzans during settlement negotiations with Pribil on the corn and soybean yields he would have had without damage from the cattle, as well as the price of corn per bushel. Pribil also alleges error by the court in instructing the jury that Pribil must prove the damages to his crops to a "reasonable certainty." We conclude that the alleged partial settlement was inadmissible under Neb. Evid. R. 408, Neb.Rev.Stat. § 27-408 (Reissue 1995), and that the complained about jury instruction has been specifically approved by the Nebraska Supreme Court. Accordingly, we affirm.

SUMMARY OF THE EVIDENCE AND ISSUES

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 center-pivot irrigation systems. These systems work by pivoting a suspended pipe with sprinklers on it around the center of a quarter, 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 often 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 the corn and soybeans on these five circles.

The evidence contains a thorough history of the dates and times the cattle got into Pribil's crops as well as the damage to these crops by the cattle or by those trying to get the cattle out of the fields. The trial court determined the defendants were liable as a matter of law for the damage those cattle did to Pribil's crop. The issues litigated concerned the physical damages the cattle did, the effect of that damage upon the yield of these circles, and the market value of that lost crop.

Pribil testified to the history of his farming of these circles, the yield history of each circle, and the details of his farming on each of the circles in 1996. The testimony included such things as the type of crop planted, when and how fertilizer and herbicide were applied, the farming practices used, and the appearance of the crop. This evidence appeared to show every imaginable variable that might affect the yield and quality of the corn and soybeans that year, as well as the market value. Similarly, he testified in detail about the physical damage the cattle did to his corn and soybean fields by their trespassing. Obviously, he did this in order to establish a basis for his opinion and the opinions of other qualified farmers in the area of what would have been harvested from these circles had they not been damaged by the trespassing cattle. Pribil then testified to the yield he did in fact receive. Since Pribil and other farmers did testify about such matters, and there is no error assigned by any party concerning the foundation for such evidence or the sufficiency of that evidence to support the verdict, we see no point in summarizing this voluminous evidence. We do so only to the extent necessary to give a setting to the issues appealed. This is not to say that the defendants did not dispute Pribil's case on damages on almost every issue.

The cattle belonged to the Koinzans. Shaw owned the land from which the cattle escaped. She rented it to the Koinzans from May to October 1996, and Held managed the Shaw property. Prior to trial, the court granted Pribil a partial summary judgment determining that all defendants were liable for the damage done by the Koinzans' cattle, and that determination is not disputed in this appeal.

Tom Chambers was an adjuster representing an insurance carrier that was in some way liable for the damages Pribil suffered as a result of the trespassing cattle. In order to avoid raising issues concerning the existence of liability insurance, the parties stipulated that Chambers would be described as a "representative" of the Koinzans. Pribil and Chambers had conversations during the fall of 1996 concerning the loss Pribil suffered from the trespass. Some statements made by Chambers during those conversations were admitted, but some of his statements were excluded upon the defendants' objections. The exclusion of this evidence is one of the issues in this appeal. The background and details will be set forth when we consider that issue.

While the evidence on the amount of damages is not directly relevant to the issues of the appeal, a summary might be helpful to understand the issues. Pribil's evidence, if accepted, would have shown he lost 26,311 bushels of corn and 2,153 bushels of soybeans from the cattle's trespass. The value of the loss of yield is another variable, but the evidence would support a market value of approximately $2.75 per bushel for the corn and more than $5 for the soybeans. Thus, the evidence would have supported a verdict of approximately $83,000. The jury returned a verdict for Pribil in the amount of $34,920.60, and Pribil appealed.

ASSIGNMENTS OF ERROR

Pribil assigns as error the trial court's (1) refusal to allow the hearsay testimony of Tom Chambers, a representative of the Koinzans; (2) including jury instruction No. 8C; and (3) overruling Pribil's motion for new trial.

STANDARD OF REVIEW

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is a factor only when the rules make such discretion a factor in determining admissibility. Snyder v. EMCASCO Ins. Co., 259 Neb. 621, 611 N.W.2d 409 (2000). We find that in First Nat. Bank in Mitchell v. Kurtz, 232 Neb. 254, 440 N.W.2d 432 (1989),

the Nebraska Supreme Court reviewed, under the abuse of discretion standard, a ruling excluding evidence under rule 408. That case, however, was decided before State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991), when the Nebraska Supreme Court clearly stated that the abuse of discretion standard applies only when discretion is a factor of admissibility. We find no suggestion in the Nebraska Evidence Rules that discretion is an element of admissibility under rule 408. "`[I]f a statement violates the rule, a trial court does not have discretion to admit the statement.'" David P. Leonard, The New Wigmore: Selected Rules of Limited Admissibility § 3.2.3 at 295 (2002), quoting C.J. Duffey Paper Co. v. Reger, 588 N.W.2d 519 (Minn.App.1999). Upon the basis of that authority and our own reasoning, we conclude that rule 408 is an exclusionary rule and not a rule of discretion.

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 question independently of the conclusion reached by the trial court. Nebraska Nutrients v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001).

A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Snyder, supra.

ANALYSIS

Exclusion of Tom Chambers' Statements.

After the Koinzans' cattle were removed from the area near Pribil's land, Chambers and Pribil talked on the telephone and then met by agreement at a restaurant in O'Neill. The parties stipulated that Chambers was a representative of the Koinzans, but not of Shaw or Held. The court therefore allowed some of the testimony of what Chambers said to Pribil into evidence as an admission against the Koinzans, but not as against Held and Shaw, and the jury was so instructed during some of Pribil's earlier testimony of Chambers' statements.

Pribil testified that at that meeting he gave Chambers the weights that showed how much corn he had harvested from the southeast quarter of section 15, which had been picked. Chambers wanted to know if there was any way the corn could be harvested and taken to town and weighed. Pribil told him that all his corn goes into his bins. Pribil testified that Chambers asked for sample weights and that Pribil "said that I'd agree to go ahead and pick the North Half of the South Quarter that was so heavily damaged, and I would weigh that, but it would also go to the bins, and that's what I did." Pribil then testified that he "wasn't about to weigh it all," and he explained that by using bin measurements with the test weight of the corn and the moisture of the corn, he could come close to a correct determination of the amount of corn in a bin.

The court ultimately instructed the jury that Pribil was entitled to recover "the market value the crop would have had at maturity, if it had not been injured ... minus...