Suchan v. Henry's Farm Sales, Inc.

• Decision Date: 10 September 1975
• Docket Number: No. 11607,11607
• Citation: 97 Idaho 78,540 P.2d 263
• Parties: George A. SUCHAN, Plaintiff-Appellant, v. HENRY'S FARM SALES, INC., et al., Defendants-Respondents.
• Court: Idaho Supreme Court

Page 263

540 P.2d 263

97 Idaho 78

George A. SUCHAN, Plaintiff-Appellant, v. HENRY'S FARM SALES, INC., et al., Defendants-Respondents.

No. 11607.

Supreme Court of Idaho.

Sept. 10, 1975.

Donald R. Chisholm, Goodman, Duff & Chisholm, Rupert, for plaintiff-appellant.

J. Robert Alexander, Benoit, Alexander & Harwood, Twin Falls, for defendants-respondents Henry's Farm Sales, Inc., Western Farm Service, Inc., and Shell Oil Co.

Claude V. Marcus, Marcus & Marcus, Boise, for defendant-respondent Forrest E. McCarty.

McFADDEN, Justice.

Plaintiff-appellant George Suchan commenced this action against defendants- respondents, Henry's Farm Sales, Inc. and its parent corporation, Shell Oil Company, and its wholly owned subsidiary, Western Farm Service (all referred to herein as Henry's) and Forrest E. McCarty, a custom fertilizer applicator. Trial was had to a jury. A verdict was rendered against plaintiff and in favor of all defendants and judgment was rendered in conformity with the verdict. Plaintiff timely moved for judgment notwithstanding the verdict and in the alternative for a new trial and submitted objections to defendant Henry's memorandum of costs. Plaintiff appeals from the judgment and from the order denying his motions and objections signed February 11, 1974.

The following facts were not disputed at trial. In 1972 plaintiff Suchan farmed approximately 1120 acres in Minidoka County in the vicinity west of Paul, Idaho. The present action involves approximately 305 acres planted with registered Springfield wheat and 115 acres planted with mixed grain consisting of 85% Steveland barley and 15% Springfield wheat.

Plaintiff had the soil on this property tested in the fall of 1971 by an independent testing laboratory to determine the fertilizer needs of the land. On the basis of these tests the laboratory prepared written nutrient recommendations for the soil to obtain an estimated yield of grain of 100 bushels per acre.

The plaintiff discussed with representatives of Henry's Farm Sales, Inc., the price and amount of fertilizer necessary to meet these recommendations and also for a yield goal of 100 bushels per acre. He then contracted with Henry's for the purchase and application of fertilizer, purchasing the amount of fertilizer necessary to obtain a yield goal of 120 bushels per acre according to the nutrient recommendations for his soil. Henry's employed defendant McCarty to spread the fertilizer.

In the first part of April, 1972, McCarty began spreading the fertilizer. The spreading was done with a 'fan bed' type fertilizer applicator. With this type of applicator a metered amount of fertilizer is fed to two motor driven 'fans' or 'spinners'. These fans rotate so as to throw the fertilizer out to each side. When both fans are turning, the applicator spreads about a 48 foot wide swath at a time. The planting of the grain occurred soon after this and was completed by May 11, 1972. Irrigation was started the 19th of May. Approximately twenty days later plaintiff noticed that the crop had begun to show differences in growth and color. The variances appeared as a pattern of streaks of light green or yellow wheat which was shorter and less dense than the rest of the crop which was described as thick and lush.

At plaintiff's insistence, representatives of Henry's viewed his crop. Dr. Dale Stukenholtz, an agronomist, was then employed on behalf of Henry's to examine plaintiff's fields in October of 1972. Stukenholtz, who had been working nearby, had noticed the uneven growth of the crop during the summer. That fall he examined and measured the entire crop. He found the average distance from peak to peak or valley to valley of the streaks to be 22 feet. In addition, Stukenholtz took soil samples from plaintiff's land and grain samples from the crops and sent them to a private independent laboratory for analysis. On the basis of the laboratory analysis contained in its report and his own testing and observation, Stukenholtz prepared a written report in the form of a letter to Henry's which contained the laboratory analysis and his conclusions as to the reasons for the streaking in the crop. This report was followed by a supplemental letter, all addressed to Henry's. These documents were consolidated as exhibit 4 during trial. In summary, Stukenholtz concluded the streaking was due to uneven application of the fertilizer. He concluded this was caused by a malfunction in the spinners on McCarty's applicator. Prior to trial, Henry's admitted, in response to a request for admission of the genuineness of a document, pursuant to I.R.C.P. 36(a), that the reports were made on behalf and at the request of Henry's and that the documents were genuine.

In his complaint plaintiff alleges a lack of uniformity in his crop and that there was a reduced quality and yield which condition was caused by the improper application of fertilizer by defendant McCarty. His complaint is in two counts, one for breach of contract and one for negligence. The separate answers of the defendants, Henry's and McCarty, generally deny plaintiff's allegations and assert his own contributory negligence in defense and in mitigation of damages. Defendants Henry's and McCarty each assert cross-claims against the other as well.

On appeal, plaintiff makes four assignments of error. First, he claims the court erred when it allowed each of the defendants, i. e., Henry's and McCarty, four peremptory challenges during jury selection. Second, the plaintiff claims the court erred when it edited certain portions of exhibit 4 before admitting it into evidence. Third, plaintiff claims error in the court's refusal to allow exhibit 4 to be admitted during Dr. Stukenholtz's testimony or to allow him to use it as a basis for his opinions. Last, plaintiff claims that the evidence was such that it required judgment notwithstanding the verdict or in the alternative, a new trial. In addition, plaintiff makes certain objections to defendant Henry's cost bill. We shall deal with these in order.

I.C. § 10-202, in effect at the time of trial, provided that '(e)ach party is entitled to four peremptory challenges.' Plaintiff proposes that the defendants in this case should have shared four challenges and if they could not agree on the exercise of the four challenges the proper procedure would be to divide them. The record fails to disclose any objection to this procedure by plaintiff during the jury selection. Therefore we cannot consider the court's alleged error, where plaintiff did not object to it at trial. 'In general, failure to lodge timely objection to the manner in which a jury is being impaneled constitutes waiver of the irregularity.' Finck v. Hoskins, 94 Idaho 524, 526, 492 P.2d 936, 938 (1972).

Plaintiff argues that should there be a retrial of this case, the Idaho law should be clarified on this point. Since we affirm, this argument is moot. Nevertheless, we should point out that a retrial would fall under I.R.C.P. 47(j), revised January 1, 1975, which supplants I.C. § 10-202 (now repealed)....