W. R. Grace & Co. (Davison Chemical Co. Division) v. LaMunion, 18261

• Decision Date: 06 October 1964
• Docket Number: No. 18261,18261
• Citation: 138 S.E.2d 337,245 S.C. 1
• Court: South Carolina Supreme Court
• Parties: W. R. GRACE & COMPANY (DAVISON CHEMICAL COMPANY DIVISION), Appellant, v. Harold LaMUNION, Rush B. LaMunion, and William LaMunion, d/b/a LaMunion Brothers, and Harold LaMunion, Grace L. LaMunion, Rush B. LaMunion, Lillian LaMunion, William LaMunion and Sadie E. LaMunion, Respondents.

Page 337

138 S.E.2d 337

245 S.C. 1

W. R. GRACE & COMPANY (DAVISON CHEMICAL COMPANY DIVISION), Appellant, v. Harold LaMUNION, Rush B. LaMunion, and William LaMunion d/b/a LaMunion Brothers, and Harold LaMunion, Grace L LaMunion, Rush B. LaMunion, Lillian LaMunion, William LaMunion and Sadie E. LaMunion, Respondents.

No. 18261.

Supreme Court of South Carolina.

Oct. 6, 1964.

Sinkler, Gibbs & Simons, Charleston, for appellant.

Robert M. Hollings, Paul N. Uricchio, Jr. Charleston, for respondents.

BRAILSFORD, Justice.

This is an action on a note given to plaintiff-appellant, W. R. Garace & Company, by the defendants-respondents, the LaMunion Brothers, for the price of fertilizer. The LaMunions counterclaimed for breach of an alleged express warranty that the fertilizer contained a pesticide which would effectively protect their fall, 1958, cucumber crop from nematodes. The jury found a verdict for the LaMunions for $28,000.00 on the counterclaim and Grace has appealed. The exceptions challenge certain rulings of the court in passing upon and refusing Grace's post trial, alternative motions for judgment notwithstanding the verdict or for a new trial. They do not assign as error, either the court's refusal of the motion for judgment notwithstanding the verdict, or the refusal of the motion for a directed verdict which was duly made at the trial. Therefore, Grace's claim that there was insufficient evidence to support a verdict for the laMunions is not properly before us, and we are only concerned with whether there was any such error as assigned in the admission of evidence or in the instructions to the jury as to require reversal of the judgment appealed from and a new trial.

Nematodes are plant parasites which feed upon the roots of many varieties of vegetation. They multiply rapidly and, if they are not effectively controlled, cause serious crop losses. They are prevalent on Edisto Island, where defendants' crop was planted, and cucumbers are susceptible to their ravages. The pests build up during the warm weather and there is greater need for control for fall crops than for those planted in the spring. Until rather recently, there were no adequate means available for controlling nematodes, and it was impractical to plant cucumbers for fall harvest on Edisto Island. However, for several years prior to 1958, the LaMunions and other farmers successfully protected their spring and fall cucumbers from nematode infestation by means of a soil fumigant, applied and sealed into the beds with special equipment.

The LaMunions offered evidence to support the allegation of the counterclaim that the fertilizer was sold to them on the express warrantly that it contained an ingredient which would prevent nematode infestation when applied to a crop as directed, and to support the allegation that this warranty was breached. Several of the LaMunions' witnesses, including the Charleston County Agricultural Agent, testified that the LaMunions' crop, to which the fertilizer was applied, was so heavily infested with nematodes as to sap its vitality and seriously impair its yield of cucumbers.

On the other hand, Grace's representatives denied having warranted that the material sold to the LaMunions would control nematodes, and Grace offered an expert witness who testified that there was no significant nematode infestation of the crop in question, except on a comparatively small acreage.

These conflicts in the testimony raised jury issues, and there can be no serious question of the sufficiency of the evidence to sustain the implied findings of that body that the fertilizer was sold upon an express warranty; that the warranty was breached, and that there was a consequent impairment in the yield of the LaMunions' crop.

Grace assails the judgment upon three grounds: (1) That the court admitted incompetent evidence on the issue of the extent of defendants' loss of yield; (2) That there was no evidence that any impairment of yield resulted in monetary loss to claimants; (3) That the court erred in its instructions to the jury on the measure of damages.

The foregoing statement of plaintiff's contentions has been formulated from the three questions under which the exceptions have been grouped and argued in its brief.

The infested crop was brought to maturity, harvested, packed and marketed. As the first step in proving damages, it was necessary for the LaMunions to offer evidence tending to establish the extent to which their cucumber production was reduced by the nematode infestation. That is, how many more bushels would probably have been produced if there had been no significant nematode infestation? The infested crop produced an average yield of 150 bushels per acre. As evidence tending to establish the probable yield had there been no breach of warranty, the LaMunions offered testimony as to the number of bushels produced on the same land in the fall of 1957. Grace objected to this testimony, contending that, under the decision of this court in Amerson v. F. C. X. Cooperative Service, 227 S.C. 520, 88 S.E.2d 605, the only competent evidence of loss of yield resulting from damage to a crop is that which shows, quoting from the opinion, 'the difference between the crops made on adjoining lands of similar quality, worked in the same way, and with the same seasons as that of the person claiming damages, * * *' 227 S.C. 525, 88 S.E.2d 608. The court sustained this objection, ruling, in effect, that the extent of loss from the nematode infestation could be shown only by comparison of the yield of the infested crop with that of other comparable plantings of cucumbers during the same season. No appeal was taken from this ruling.

Only two other farmers in the area produced cucumbers for fall harvest in 1858, one Towles, whose cucumber field was adjacent to one of the LaMunion fields, and one Simmons, whose planting was from 1 1/2 miles to 5 miles away 'as the crow flies,' according to the estimates of various witnesses.

The LaMunions undertook to prove the yield of cucumbers per acre on the Towles farm by the testimony of expert witnesses, who, according to some of the testimony, observed the crop before and after maturity and during harvest. These witnesses testified that, in their opinion, about 400 bushels of cucumbers per acre were harvested from this field. Grace objected to this testimony upon the ground that it was speculative and conjectural, and that the best evidence would be to call Towles as a witness to what the actual production was. The adverse ruling of the circuit judge in assigned as error, and the Amerson case, supra, is relied upon as requiring the exclusion of the testimony. We do not think that Amerson is in point. In that action for damages for breach of a contract to repair a tractor, as result of which plaintiff was deprived of the means of properly was deprived of the means was held that the circuit court erred in admitting the testimony of plaintiff and his neighbors as to what, in their opinion, plaintiff's cotton crop would have produced if he had had the use of his tractor for its cultivation. The opinion which they were allowed to express, erroneously, according to the decision, was as to the probable yield of the crop in question had it been properly cultivated. Here, the testimony of the expert witnesses was as to the actual yield of a crop which was brought to maturity and harvested under their observation. We are satisfied that, under these circumstances, the opinions of these witnesses had probative value and were properly admitted in evidence. ¹

We add that there is no suggestion in...